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People v. Flynn

Court of Appeals of Colorado, Fifth Division

July 11, 2019

The People of the State of Colorado, Plaintiff-Appellee,
v.
Thomas T. Flynn, Defendant-Appellant.

          Adams County District Court No. 15CR1862 Honorable Francis C. Wasserman, Judge Honorable Thomas R. Ensor, Judge

          Philip J. Weiser, Attorney General, Carmen Moraleda, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

          Megan A. Ring, Colorado State Public Defender, Meredith E. Osborne, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

          OPINION

          TOW, JUDGE

         ¶ 1 Defendant, Thomas T. Flynn, appeals his judgment of conviction entered on jury verdicts finding him guilty of menacing, vehicular eluding, reckless endangerment, failure to stop at a red light, and speeding. We affirm.

         I. Background

         ¶ 2 In 2015, William Garibay was driving home from work when he noticed a Cadillac driving in front of him in the left lane. When Garibay's car approached the Cadillac, the driver of the Cadillac stepped on his brakes, causing Garibay to brake abruptly. The Cadillac then moved into the right lane, and its driver started yelling profanities at Garibay. The driver held a pistol across his chest and pointed it at Garibay. Garibay called 911, provided the dispatcher with the Cadillac's temporary license plate number, and attempted to follow the vehicle until he lost sight of it.

         ¶ 3 Garibay met with a responding police officer and provided a physical description of the driver, indicating he would be able to recognize the driver. In the meantime, a police officer located the Cadillac and gave chase, but the Cadillac driver eluded the officer. During the investigation, police determined that the temporary tag was associated not with a Cadillac, but rather with an older model Buick sedan registered to Flynn's father. Garibay then identified Flynn in a photographic array as the driver of the Cadillac. The police never located the Cadillac or the gun. A jury found Flynn guilty of menacing, vehicular eluding, reckless endangerment, failure to stop at a red light, and speeding. Flynn now appeals the convictions.

         II. Analysis

         ¶ 4 Flynn contends that a new trial is required because the trial court erred by (1) denying his motion to continue; (2) determining that no due process violation resulted from the prosecution's failure to disclose certain evidence; and (3) giving instructions to the jury that lowered the prosecution's burden of proof. We address and reject each contention in turn.

         A. Motion to Continue

         ¶ 5 Flynn first argues that the trial court erred in denying his motion to continue his trial. Because he sought a continuance to obtain substitute defense counsel, Flynn argues that the trial court's denial of his motion violated his Sixth Amendment rights. We disagree.

         1. Additional Facts

         ¶ 6 At the pretrial conference, one week before trial, Flynn's court-appointed attorney requested a continuance of trial, noting Flynn's request to substitute counsel:

MS. LANZEN: The other thing that Mr. Flynn had noted to me is that it's his intent to hire counsel of his choice. He has been working and saving money to get a retainer to hire an attorney. It was his hope that he would have that attorney today. However, he needed a little more time. He said he was going to go over to Harvey Steinberg's office afterwards to see if he can set up the retainer.
We would ask the Court to vacate the jury trial.

         ¶ 7 The trial court denied this motion, in part because the request was "very last minute" and there was "no indication that there's other counsel who is actually going to enter his or her appearance in this matter." The court described the motion as a tactic to delay trial.

         ¶ 8 On the first day of trial, defense counsel renewed her request for a continuance, again noting that Flynn wanted to hire a private attorney for trial:

MS. LANZEN: He originally hired an attorney. That attorney had to withdraw. My office was appointed. And then after some limited contact with Mr. Flynn, he had made the decision to hire an attorney. He just didn't have the money. . . .
He said he had contacted Howard - Harvey Steinberg and wanted to retain him to represent him at the trial and so wanted me to ask the Court to continue this so that he could have the attorney of his choice.

         ¶ 9 The court again denied the request. The court noted that "[h]ad another attorney entered or even been present today, I might have considered [a continuance]."

         2. Standard of Review

         ¶ 10 "A motion for a continuance falls within 'the sound discretion of the trial court.'" People v. Brown, 2014 CO 25, ¶ 19 (quoting People v. Hampton, 758 P.2d 1344, 1353 (Colo. 1988)). Thus, we review the trial court's denial of a motion for a continuance for an abuse of discretion. Id. In reviewing the trial court's findings of fact, we will defer to such findings "so long as [they] are supported by evidence in the record." Id. at ¶ 26.

         3. Applicable Law

         ¶ 11 The Sixth Amendment affords criminal defendants the right to be represented by counsel of their choice. U.S. Const. amend. VI; see Rodriguez v. Dist. Court, 719 P.2d 699, 705 (Colo. 1986). This right is entitled to "great deference." Rodriguez, 719 P.2d at 705. Nevertheless, the right is not absolute and must in some cases yield when "fundamental considerations other than a defendant's interest in retaining a particular attorney are deemed of controlling significance." Id. at 706.

         ¶ 12 In Brown, the supreme court set forth an eleven-factor test for trial courts to use when analyzing a request for a continuance to substitute defense counsel. Under Brown, ¶ 24, a trial court must consider the following:

1. the defendant's actions surrounding the request and apparent motive for making the request;
2. the availability of chosen counsel;
3. the length of continuance necessary to accommodate chosen counsel;
4. the potential prejudice of a delay to the prosecution beyond mere inconvenience;
5. the inconvenience to witnesses;
6. the age of the case, both in the judicial system and from the date ...

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