[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
County District Court No. 15CR1862, Honorable Francis C.
Wasserman, Judge, Honorable Thomas R. Ensor, Judge
J. Weiser, Attorney General, Carmen Moraleda, Senior
Assistant Attorney General, Denver, Colorado, for
A. Ring, Colorado State Public Defender, Meredith E. Osborne,
Deputy State Public Defender, Denver, Colorado, for
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.
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 Garibays 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 Cadillacs
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 Flynns 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.
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 prosecutions failure to disclose certain
evidence; and (3) giving instructions to the jury that
lowered the prosecutions burden of proof. We address and
reject each contention in turn.
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 courts denial of his motion violated
his Sixth Amendment rights. We disagree.
6] At the pretrial conference, one week before
trial, Flynns court-appointed attorney requested a
continuance of trial, noting Flynns request to substitute
MS. LANZEN: The other thing that Mr. Flynn had noted to me is
that its 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 Steinbergs 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 theres other counsel who
is actually going to enter his or her appearance in this
matter." The court described the motion as a tactic to
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 didnt 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]."
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, 322 P.3d 214 (quoting
People v. Hampton, 758 P.2d 1344, 1353 (Colo.
1988)). Thus, we review the trial courts denial of a motion
for a continuance for an abuse of discretion. Id. In
reviewing the trial courts findings of fact, we will defer
to such findings "so long as [they] are supported by
evidence in the record." Id. at ¶ 26.
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 defendants interest in retaining a particular attorney are
deemed of controlling significance." Id. at
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.