Petition for Writ of Certiorari — Randall Eric Leverton, Petitioner v. Colorado

Supreme Court briefDec 30, 2017

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APPENDICES

Appendix A Opinion of the Colorado Court of Appeals

Appendix B Excerpts from the Record

•

Op. Br., pp. 4, 8, 17, 18, 19, 20, 21, 22

Resp. Br., pp. 2, 11-13

Reply Br., pp. 9, 15

Tr. [Sep. 16, 2014], pp.15, 83, 85-6, 95

Appendix C Order of the Colorado Supreme Court Denying Review

Appendix A

COLORADO COURT OF APPEALS

Court of Appeals No. 15CA0050

El Paso County District Court No. 13CR123

Honorable Robert L. Lowrey, Judge

2017COA34

DATE FILED: March 23, 2017

CASE NUMBER: 2015CA50

The People of the State of Colorado,

Plaintiff-Appellee,

Randall Eric Leverton,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division II

Opinion by JUDGE BERGER

Dailey and J. Jones, JJ., concur

Announced March 23, 2017

Cynthia H. Coffman, Attorney General, Lisa K. Michaels, Assistant Attorney

General, Denver, Colorado, for Plaintiff-Appellee

Katayoun A. Donnelly, Alternative Defense Counsel, Denver, Colorado, for

Defendant-Appellant

¶1

A jury convicted defendant, Randall Eric Leverton, of theft by

receiving and possession of drug paraphernalia. He appeals,

contending the trial court erred by (1) joining the two offenses in a

single trial and not allowing him to plead guilty to the

paraphernalia charge before joining them and (2) admitting into

evidence two witnesses’ prior inconsistent statements. He also

contends that the evidence is insufficient to support his convictions.

We address and reject these contentions and affirm.

I. Relevant Facts and Procedural History

¶2

On a cold evening, the victim started her car and left it

running while she collected some belongings from inside her home.

She returned to where the car had been parked a few minutes later

and saw that the car was gone. She immediately reported the theft

to the police.

¶3

A few days later, a police officer pulled over the stolen car.

Leverton was seated in the front passenger side of the car, another

man was driving, and two women were in the back seat. When

asked who owned the car, Leverton told the officer that it belonged

to his girlfriend, the victim. The victim later testified at trial that

she did not know and had never met Leverton.

¶4

The officer searched the vehicle and discovered several small

baggies which he suspected contained cocaine and

methamphetamine. All four passengers were patted down,

arrested, and transported to the police station.1

¶5

Leverton and the other man were transported in the same

police vehicle. One of the transporting officers testified at trial that

while the other man apparently slept during the drive to the police

station, Leverton, who was handcuffed, “started moving around in

the seat, kind of bending over and just acting not normal.” After

removing Leverton from the vehicle, the officer searched the back

seat and discovered a type of pipe commonly used to smoke

methamphetamine.

¶6

Based on the discovery of the pipe, Leverton was charged with

possession of drug paraphernalia, a petty offense under section

18-18-428(2), C.R.S. 2016. Approximately two weeks later, in a

separate case filed in the same judicial district, Leverton was

1 Leverton was not charged with any crimes associated with the

officer’s discovery of these drugs.

charged with theft by receiving, a felony under section 18-4-410(1),

(4), C.R.S. 2012.2

¶7

The day before trial on the felony theft charge, the prosecution

moved to amend the complaint to join the paraphernalia charge and

dismiss the petty offense case. Leverton’s counsel objected, stating

that his client intended to “enter a straight guilty plea” to the

paraphernalia charge, and then move to dismiss the felony case “for

failure to join.” The court granted the prosecution’s motion, stating

that the prosecution’s dismissal of the paraphernalia case and the

amendment of the complaint in the felony case “in fact, does join

[the petty offense case] into [the felony case]” and dismissed the

petty offense case because “it doesn’t have a count anymore.”

Leverton pleaded not guilty to both charges.

¶8

At trial, the two women in the back seat of the stolen car

testified under subpoena. Both women testified that, due to drug

use, they could not remember the events of that night, nor could

they remember making any statements to the police. The

prosecutor questioned both women based on oral statements they

2 Section 18-4-410 has since been repealed, effective June 5, 2013,

and consolidated with the general theft statute, section 18-4-401,

C.R.S. 2016.

allegedly had made to the police following their arrests. For

instance, the prosecutor asked one of the women, “Do you recall

telling [the police] that Mr. Leverton had had the vehicle for several

days and that someone had given it to him?”

¶9

Leverton’s counsel objected to these questions because he

argued that they “essentially just end up being testimony via the

question itself, particularly when the witness has testified she has

no recollection.” The court ruled that the questions were proper

impeachment questions. The witnesses’ oral statements later were

admitted into evidence over Leverton’s objection through the

testimony of the two police officers to whom the witnesses made

their statements.

¶ 10

The jury convicted Leverton as charged and the trial court

sentenced him to three years of probation and forty-eight hours of

useful public service.

II. Joinder of the Theft and Paraphernalia Charges

¶ 11

Leverton argues that the trial court erred when it rejected his

guilty plea on the paraphernalia charge and then permitted the

prosecution to add that charge to the complaint. He claims that the

trial court’s actions violated Colorado’s mandatory joinder statute,

section 18-1-408, C.R.S. 2016, as well as the Double Jeopardy

Clauses of both the United States and Colorado Constitutions. We

reject these arguments.

¶ 12

The Attorney General argues that because Leverton did not

object to the procedure for joining the offenses, but only requested

that the trial court accept his guilty plea prior to joining them, his

claims should be reviewed only for plain error. We need not decide

whether Leverton preserved these claims because we perceive no

error, plain or otherwise. Cf. Marshall v. People, 2013 CO 51, ¶ 15

n.5 (declining to address whether the defendant preserved a

Confrontation Clause challenge because there was no confrontation

error).

¶ 13

The mandatory joinder statute “seeks to prevent vexatious

prosecution and harassment of a defendant by a district attorney

who initiates successive prosecutions for crimes which stem from

the same criminal episode.” People v. Talarico, 192 Colo. 445, 446,

560 P.2d 90, 91 (1977); see § 18-1-408(2). The statute requires

that all such offenses known to the prosecutor which were

committed in the same judicial district must be prosecuted by

separate counts in a single prosecution. § 18-1-408(2). Any offense

not joined “cannot thereafter be the basis of a subsequent

prosecution[.]” § 18-1-408(2).

¶ 14

Whether a trial court properly joined multiple offenses under

the mandatory joinder statute presents a mixed question of law and

fact. See People v. Marshall, 2014 COA 42, ¶ 19 (applying the

“mixed question of law and fact” standard of review to the question

whether a trial court properly dismissed a criminal case under the

mandatory joinder statute). The trial court’s interpretation of the

joinder statute is a question of law we review de novo, People v.

Garcia, 2016 COA 124, ¶ 6, but we defer to factual findings

supported by the record, People v. Marshall, ¶ 19.

¶ 15

Leverton argues that the trial court erred in refusing to accept

his guilty plea in the paraphernalia case and in granting the

prosecution’s motion to amend the theft complaint because the

result was that he was effectively charged in two separate cases

with the same offense. He insists that “the only way the

prosecution could go forward with charging [him] for both charges

was to file a motion to join the two cases before the trial.”

(Emphasis added.)

¶ 16

We conclude, as did the trial court, that while the

prosecution’s motion was styled as a motion to amend, it was

effectively a motion to join the two offenses. In Jeffrey v. Dist. Court,

626 P.2d 631, 638-39 (Colo. 1981), the supreme court held that

“section 18-1-408(2) does not prohibit the court from permitting the

district attorney to add to a criminal information other counts that

arise from the same criminal episode as the original count so long

as the additional counts are filed prior to the jeopardy stage of the

prosecution.” That holding is dispositive here; the prosecution

moved to join the offenses prior to Leverton’s attempt to plead guilty

to the paraphernalia charge. See Jeffrey, 626 P.2d at 636.

¶ 17

Moreover, irrespective of whether the procedure utilized by the

court complied strictly with the mandatory joinder statute, it

nevertheless met the statute’s purpose of preventing successive

prosecutions. Leverton points to no unfair prejudice resulting from

the procedure used.

¶ 18

The court also did not abuse its discretion in rejecting

Leverton’s guilty plea. Trial courts have discretion to accept or to

reject a guilty plea because “[t]here is no absolute right to have a

guilty plea accepted.” People v. Jasper, 17 P.3d 807, 812 (Colo.

2001) (quoting Santobello v. New York, 404 U.S. 257, 262 (1971)).

¶ 19

Had the court accepted Leverton’s guilty plea on the

paraphernalia charge prior to joining the two offenses, the

mandatory joinder statute may have prohibited prosecution of the

felony theft charge. Indeed, Leverton expressly sought to plead

guilty to the paraphernalia charge — a petty offense — for the

purpose of preventing prosecution of the felony charge. While

neither this court nor the supreme court has addressed such an

attempt to manipulate the criminal justice system to escape

additional charges, courts in other jurisdictions have squarely

rejected it.

¶ 20

In State v. Turner, 980 P.2d 1188, 1190 (Utah Ct. App. 1998),

the Utah Court of Appeals held that the trial court abused its

discretion when it accepted the defendant’s guilty plea on a traffic

violation because doing so effectively nullified the state’s right to

prosecute the defendant on the more serious charge of negligent

homicide.

¶ 21

The Wisconsin Supreme Court similarly held that the trial

court did not err in rejecting a defendant’s guilty plea when the

defendant intended to “create a situation of double jeopardy” to

protect himself from additional charges. State v. Waldman, 203

N.W.2d 691, 693 (Wis. 1973).

¶ 22

And in Newsome v. State, 797 N.E.2d 293, 298 (Ind. Ct. App.

2003), the Indiana Court of Appeals held that “a trial court does not

abuse its discretion in rejecting a guilty plea where the court

reasonably could have concluded that the request was a ‘ruse’

intended to manipulate the system.”

¶ 23

Consistent with these cases, and in view of society’s interest in

maintaining the integrity of the criminal justice system, People v.

Wiedemer, 852 P.2d 424, 440 (Colo. 1993), we conclude that the

court acted within its discretion when it rejected Leverton’s guilty

plea to the petty offense.

¶ 24

Finally, we reject Leverton’s argument that his constitutional

right to be free from double jeopardy was somehow violated when

the theft and paraphernalia charges were joined. The Double

Jeopardy Clauses comprise “three separate but related prohibitions:

(1) a rule which bars a reprosecution for the same offense after

acquittal; (2) a rule barring reprosecution for the same offense after

conviction, and; (3) a rule barring multiple punishment[s] for the

same offense.” People v. Henderson, 810 P.2d 1058, 1060 (Colo.

1991) (citation omitted). Leverton does not allege that he was

reprosecuted for either the paraphernalia or theft offense after he

was convicted, or that he was sentenced or otherwise punished

multiple times for those offenses.

¶ 25

Moreover, double jeopardy protection does not attach until the

jury has been impaneled and sworn (or, in a bench trial, when the

first witness is sworn), or when the trial court accepts the

defendant’s guilty plea. Jeffrey, 626 P.2d at 636. Because the

court had not accepted Leverton’s guilty plea on the paraphernalia

charge (which, as we have concluded above, was appropriate under

these circumstances), double jeopardy had not attached, and there

was no double jeopardy violation.

III. Admission of Prior Inconsistent Statements

¶ 26

Leverton next argues that the trial court erred in permitting

the prosecution to examine two witnesses about their prior

statements to the police. He asserts that the prosecutor’s questions

exposed the jury to inadmissible evidence and violated his

confrontation rights. These arguments ignore well-established case

law and we reject them.

A. Admissibility Under CRE 613 and

Section 16-10-201, C.R.S. 2016

¶ 27

Generally, we review a trial court’s evidentiary rulings for an

abuse of discretion. People v. Tyme, 2013 COA 59, ¶ 8. But when a

defendant asserts that the trial court’s evidentiary rulings violated

his confrontation rights, we review de novo. People v. Brown, 2014

COA 155M-2, ¶ 18.

¶ 28

CRE 613(a) authorizes impeachment by prior inconsistent

statement “[w]here the witness denies or does not remember

making the prior statement[.]” To do so, “the examiner must call

the attention of the witness to the particular time and occasion

when, the place where, and the person to whom he made the

statement” and may give “[t]he exact language of the prior

statement.” CRE 613(a).

¶ 29

Similarly, section 16-10-201(1), C.R.S. 2016, provides as

follows:

Where a witness in a criminal trial has made a

previous statement inconsistent with his

testimony at the trial, the previous

inconsistent statement may be shown by any

otherwise competent evidence and is

admissible not only for the purpose of

impeaching the testimony of the witness, but

also for establishing a fact to which his

testimony and the inconsistent statement

relate, if . . . [t]he witness, while testifying, was

given an opportunity to explain or deny the

statement or the witness is still available to

give further testimony in the trial; and . . . [t]he

previous inconsistent statement purports to

relate to a matter within the witness’s own

knowledge.

Under the statute, a witness’s inability to remember a statement “is

tantamount to a denial that [s]he made the statement.” People v.

Baca, 633 P.2d 528, 529 (Colo. App. 1981) (citing People v. Pepper,

193 Colo. 505, 568 P.2d 446 (1977)). The same result obtains

under the express language of CRE 613.

¶ 30

Both women testified that they did not remember what

happened the night the stolen car was pulled over, nor did they

remember any statements they made to the police. To impeach the

witnesses, the prosecutor was entitled to confront them with the

exact language of their prior statements. CRE 613. Indeed, under

section 16-10-201(1)(a), the prosecutor was required to give the

witnesses “an opportunity to explain or deny the statement[s]” prior

to introducing evidence of those statements for purposes of

impeachment or to prove a matter related to the statement.

¶ 31

Leverton argues that because the witnesses testified that they

did not recall making any statements to the police, they effectively

did not testify, and therefore their prior statements were not

admissible as inconsistent with their testimony. But this argument

was squarely rejected in Baca. In that case, the witness testified

that he did not remember the testimony he gave in a prior trial, nor

did he remember the facts underlying his statements at the prior

trial. Baca, 633 P.2d at 529. This court held the witness’s

testimony that he could not remember was inconsistent with his

prior testimony, and therefore his prior testimony was admissible

under section 16-10-201.

¶ 32

We believe that Baca was correctly decided and we apply it

here. Because both witnesses’ testimony amounted to a denial that

they made the statements to the police, the prosecution was

entitled to impeach the witnesses with the statements, and the

court properly admitted those statements. See also People v.

Thomas, 2014 COA 64, ¶ 20 (applying Baca).

B. Confrontation Clause

¶ 33

We also reject Leverton’s related argument that admission of

the witnesses’ prior statements violated his right of confrontation

under the Sixth Amendment.

¶ 34

Out-of-court, testimonial statements by a declarant who is

unavailable to testify at trial are barred by the Confrontation Clause

unless the defendant had a prior opportunity to cross-examine the

declarant. Crawford v. Washington, 541 U.S. 36, 50 (2004).3

¶ 35

Leverton argues that when a witness claims to have no

memory of either the prior statements or the events that produced

those statements (or perhaps both), she is not “available” for crossexamination within the meaning of the Confrontation Clause and

thus her prior statements are inadmissible. While Leverton

acknowledges that United States Supreme Court decisions have

rejected this argument, he nevertheless argues that these cases

3 Leverton does not make a separate argument that the state

constitutional confrontation guarantee in article II, section 16 of the

Colorado Constitution provides greater protection than the Federal

Confrontation Clause, nor did he raise that argument in the trial

court. Consequently, we do not further address the Colorado

Constitution. People v. Ujaama, 2012 COA 36, ¶ 10 n.3.

have been silently overruled by Crawford. Our reading of Crawford

does not support this argument.

¶ 36

The Supreme Court addressed the effect of a witness’s memory

loss on a defendant’s right of confrontation in three pre-Crawford

decisions: California v. Green, 399 U.S. 149 (1970); Delaware v.

Fensterer, 474 U.S. 15 (1985); and United States v. Owens, 484 U.S.

554 (1988). Each of these cases rejected the argument that the

testifying witness was unavailable for confrontation purposes

because he or she suffered from some memory loss.

¶ 37

In Green, the witness had stated, in both a police interview

and at a preliminary hearing, that the defendant was his marijuana

supplier. 399 U.S. at 151. But at trial, the witness testified that he

could not remember how he had obtained the marijuana because

he was under the influence of drugs the day it was delivered. Id. at

151-52. Rejecting his Confrontation Clause challenge, the Court

concluded that “where the declarant is not absent, but is present to

testify and to submit to cross-examination, our cases, if anything,

support the conclusion that the admission of his out-of-court

statements does not create a confrontation problem.” Id. at 162.

¶ 38

In Fensterer, an expert witness presented his opinion at trial,

but could not recollect the basis of that opinion. The Court held

that because “[t]he Confrontation Clause includes no guarantee

that every witness called by the prosecution will refrain from giving

testimony that is marred by forgetfulness, confusion, or evasion,”

there was no Confrontation Clause violation. 474 U.S. at 21-22.

¶ 39

Finally, in Owens, the victim had been beaten with a metal

pipe, resulting in severe memory impairment. 484 U.S. at 556.

Despite these injuries, the victim identified the defendant as his

attacker. Id. At trial, however, the victim testified that while he

remembered telling the police who had attacked him, he had no

memory that the defendant was his attacker. Id. The defendant

argued that the victim’s loss of memory on this critical matter

rendered ineffective any cross-examination of the victim and that as

a result, he could not confront the witness in violation of his Sixth

Amendment confrontation right. Id. at 556-57. The Court rejected

this argument, holding that the defendant’s confrontation rights

were not violated because “[t]he Confrontation Clause guarantees

only ‘an opportunity for effective cross-examination, not crossexamination that is effective in whatever way, and to whatever

extent, the defense might wish.’” Id. at 559 (citation omitted).

Because “the traditional protections of the oath, cross-examination,

and opportunity for the jury to observe the witness’ demeanor” were

satisfied, there was no Confrontation Clause violation. Id. at 560.

¶ 40

Leverton does not contend that Crawford expressly overruled

Owens and nothing in Crawford would support such a contention.

Instead, Leverton claims that several words buried in one of

Crawford’s footnotes silently overruled Owens.

¶ 41

Footnote nine of Crawford states as follows: “[t]he

[Confrontation] Clause does not bar admission of a statement so

long as the declarant is present at trial to defend or explain it.” 541

U.S. at 59 n.9 (emphasis added). From these italicized words,

Leverton argues that if a witness claims some memory loss, she

cannot “defend or explain” her prior statements and thus is

unavailable for confrontation purposes.

¶ 42

Virtually every court that has addressed this argument has

rejected it and has squarely held that the physical presence of the

witness at trial avoids any confrontation issue. See, e.g., State v.

Real, 150 P.3d 805, 807 (Ariz. Ct. App. 2007); State v. Pierre, 890

A.2d 474, 502 (Conn. 2006); People v. Bryant, 909 N.E.2d 391, 399

(Ill. App. Ct. 2009); Smith v. State, 25 So. 3d 264, 270 (Miss. 2009);

State v. Legere, 958 A.2d 969, 977 (N.H. 2008); Woodall v. State,

336 S.W.3d 634, 644 (Tex. Crim. App. 2011); Abney v.

Commonwealth, 657 S.E.2d 796, 802 (Va. Ct. App. 2008); State v.

Price, 146 P.3d 1183, 1191 (Wash. 2006).

¶ 43

Two courts have taken a more nuanced view. In Cookson v.

Schwartz, 556 F.3d 647, 651 (7th Cir. 2009), relying on footnote

nine’s language, the Seventh Circuit held that Crawford’s statement

that “when the declarant appears for cross-examination at trial, the

Confrontation Clause places no constraints at all on this use of his

prior testimonial statements” is not dispositive of whether a witness

suffering from total memory loss is “available” for confrontation

purposes. The court entertained the possibility that total, extreme

memory loss could render a witness unavailable for Confrontation

Clause purposes. Still, noting that the witness remembered at least

some of the underlying events described in her out-of-court

statements, the court concluded that the defendant had had “ample

opportunity to confront his accuser at trial,” and thus his

confrontation rights were not violated. Id. at 652.

¶ 44

The Mississippi Supreme Court relied on Cookson in

construing the Mississippi Constitution’s confrontation clause in

Goforth v. State, 70 So. 3d 174 (Miss. 2011). After the witness made

his statement to the police, but before the trial, he was injured in

an automobile accident that “substantially impaired his physical

and mental conditions,” and he testified that he “could not

remember anything that had occurred two years prior to the wreck.”

Id. at 182. The court, observing that the witness’s “total loss of

memory” was undisputed, held that the witness, “though physically

present at trial, did not have the requisite, minimal ability or

capacity” under the Mississippi Constitution to be cross-examined.

Id. at 186.4

¶ 45

This case does not require us to determine whether total

memory loss coupled with extreme physical disabilities could ever

4 Although Goforth v. State, 70 So. 3d 174 (Miss. 2011), analyzed

both Crawford v. Washington, 541 U.S. 36 (2004), and United States

v. Owens, 484 U.S. 554 (1988), its holding was predicated on the

Mississippi Constitution’s confrontation clause, not the federal

clause. As a result, it provides little, if any, support for the federal

constitutional argument made by Leverton.

render a witness unavailable under the Confrontation Clause and

we express no opinion on that question.5

¶ 46

Though both witnesses claimed at trial that they had no

memory of the night in question or of any of the statements they

made to the police, their actual trial testimony belied those claims.

Both witnesses testified that they remembered their car being

pulled over, that they remembered being arrested, and both were

able to identify who was in the car at the time. Thus, like in

Cookson, the witnesses were able to recall at least some of the

events underlying their statements to the police, and, unlike in

Goforth, neither witness suffered from “total loss of memory.”

¶ 47

Though Leverton claims that he could not effectively

cross-examine the witnesses, in fact he did so, emphasizing the

witnesses’ alleged drug-induced memory loss in an effort to

discredit their testimony. As the Court observed in Owens, 484

U.S. at 559, attacking a witness’s memory is often one of the prime

objectives of cross-examination. Leverton was able to do so in this

case and that dooms his Confrontation Clause argument.

5 We note that the Supreme Court recognized such a possibility

both in California v. Green, 399 U.S. 149, 168-69 (1970), and

Delaware v. Fensterer, 474 U.S. 15, 20 (1985).

¶ 48

We also observe that a rule that a witness is unavailable for

Confrontation Clause purposes based entirely upon the witness’s

testimony that she suffers from memory loss is unworkable.

Memory loss may be real or feigned. It may be total or partial.

Sometimes lost memory may be refreshed in whole or in part. To

permit a witness to unilaterally control the admission into evidence

of the witness’s prior relevant statements merely by professing a

lack of memory is intolerable to the criminal justice system.

¶ 49

For similar reasons, we reject Leverton’s analogy of a witness’s

exercise of his Fifth Amendment right not to incriminate himself or

herself to a witness’s professed lack of memory.

¶ 50

These situations are not analogous. In the Fifth Amendment

context, the witness has a constitutional right not to testify; so long

as that Fifth Amendment right has not been waived, the right is

absolute. A court cannot overrule the exercise of the right on the

basis that the testimony is essential, and no inquiry into the

reasons for the exercise of the right is permissible (other than

whether testimony on the subject might tend to incriminate the

witness). People v. Razatos, 699 P.2d 970, 976 (Colo. 1985). Thus,

a witness who exercises her Fifth Amendment right not to testify is

unavailable for Confrontation Clause purposes. United States v.

Smalls, 605 F.3d 765, 776 (10th Cir. 2010). In contrast, the

availability inquiry in the memory loss context depends on a

multitude of factors beyond simply an assertion of constitutional

rights.

¶ 51

For all of these reasons, we hold that Leverton’s right to

confrontation was not violated.

IV. Sufficiency of the Evidence

¶ 52

Leverton argues that the prosecution did not present sufficient

evidence to prove beyond a reasonable doubt that he committed

theft or possessed drug paraphernalia. We disagree.

¶ 53

“The due process clauses of the United States and Colorado

Constitutions prohibit the criminal conviction of any person except

on proof of guilt beyond a reasonable doubt.” Kogan v. People, 756

P.2d 945, 950 (Colo. 1988), abrogated on other grounds by Erickson

v. People, 951 P.2d 919 (Colo. 1998). A reviewing court faced with a

sufficiency challenge must determine whether the relevant evidence,

both direct and circumstantial, when viewed as a whole and in the

light most favorable to the prosecution, is substantial and sufficient

to support a conclusion by a reasonable person that the defendant

is guilty of the charge beyond a reasonable doubt. Dempsey v.

People, 117 P.3d 800, 807 (Colo. 2005); People v. Gonzales, 666

P.2d 123, 127 (Colo. 1983).

¶ 54

In determining whether the evidence is sufficient to sustain a

conviction, “[t]he prosecution is entitled to the benefit of every

reasonable inference that may fairly be drawn from the evidence,

even if the record also contains evidence to the contrary.” People v.

Thornton, 251 P.3d 1147, 1149 (Colo. App. 2010).

¶ 55

The determination of the credibility of witnesses is solely

within the province of the jury, as is the specific weight to be

accorded to that testimony. People v. Sprouse, 983 P.2d 771, 778

(Colo. 1999); see also People v. Duncan, 109 P.3d 1044, 1045-46

(Colo. App. 2004).

¶ 56

We review the record de novo to determine whether the

evidence is sufficient to sustain a criminal conviction. Dempsey,

117 P.3d at 807.6

6 Relying on People v. Lacallo, 2014 COA 78, ¶¶ 4-23, the Attorney

General argues that because Leverton did not raise the issue of

sufficiency in the trial court, we should review only for plain error.

We need not resolve that issue here because we conclude that

sufficient evidence supported Leverton’s convictions. People v.

Sena, 2016 COA 161, ¶ 8.

A. Theft

¶ 57

“[A] person commits theft by receiving when he receives,

retains . . . or disposes of anything of value of another, knowing or

believing that said thing of value has been stolen, and when he

intends to deprive the lawful owner permanently of the use or

benefit of the thing of value.” § 18-4-410(1), C.R.S. 2012.

¶ 58

A few days after the car had been reported stolen, the police

found Leverton sitting in the car’s front passenger seat. Though

Leverton told the police that the car had been given to him by the

victim, his statement was directly refuted by the victim’s testimony

that she had never met him. Evidence also was presented at trial

that Leverton himself drove the vehicle to a gas station.

¶ 59

Based on all of this evidence, we conclude that the jury was

entitled to infer that Leverton intended to permanently deprive the

owner of the car of the rights of ownership. Thus, sufficient

evidence supported the theft by receiving conviction.

B. Possession of Paraphernalia

¶ 60

“[A] person commits possession of drug paraphernalia if he or

she possesses drug paraphernalia and knows or reasonably should

know that the drug paraphernalia could be used under

circumstances in violation of the laws of this state.” § 18-18428(1)(a).

¶ 61

The prosecution presented evidence that, prior to placing

Leverton into the police vehicle, a police officer searched the

vehicle’s back seat and found nothing. While Leverton was being

transported to the police station, he was fidgeting. After removing

Leverton from the vehicle, the officer discovered in the back seat

where Leverton had been sitting a pipe of the sort commonly used

to smoke methamphetamine. The pipe contained a white residue

which the officer testified was consistent with methamphetamine.

¶ 62

Leverton argues that no jury rationally could have concluded

that the pipe belonged to him because if he had had the pipe on his

person, it would have been discovered when he was patted down

before he was placed into the police vehicle. He also argues that the

pipe could have belonged to the driver of the stolen car, who rode in

the police vehicle with him. But the fact that the officer did not find

the pipe during the pat-down search goes to the weight of the

officer’s testimony, an inquiry that is irrelevant in determining

sufficiency. Sprouse, 983 P.2d at 778. And while the pipe might

have belonged to the other man, it was the jury’s role to decide to

whom the pipe belonged.

¶ 63

Viewing the evidence in the light most favorable to the

prosecution, we conclude that there was sufficient evidence for the

jury to convict Leverton of possession of drug paraphernalia.

V. Guilt by Association

¶ 64

Leverton also contends that “the trial court erred by allowing

the prosecution to seek Mr. Leverton’s convictions on the basis of

guilt by association.” We have held that the prosecution presented

sufficient evidence for the jury to conclude that every element of the

charged crimes was proved beyond a reasonable doubt. Leverton’s

convictions were not based on his association with other persons;

they were based on evidence that proved that Leverton, not some

other person, committed the crimes.

¶ 65

To the extent that Leverton asserts a back-door Fourth

Amendment argument ― that the police officer’s search of the police

vehicle after Leverton exited the vehicle was unreasonable ― we

reject it for two reasons: (1) it was not sufficiently developed and we

do not address skeletal arguments, People v. Simpson, 93 P.3d 551,

555 (Colo. App. 2003); and (2) it was not raised in the trial court

and thus was waived, People v. Cordova, 293 P.3d 114, 120 (Colo.

App. 2011).

VI. Conclusion

¶ 66

The judgment of conviction is affirmed.

JUDGE DAILEY and JUDGE J. JONES concur.

Appendix B

•

Op. Br., pp. 4, 8, 17, 18, 19, 20, 21, 22

Resp. Br., pp. 2, 11-13

Reply Br., pp. 9, 15

Tr. [Sep. 16, 2014], pp.15, 83, 85-6, 95

COURT OF APPEALS, STATE OF COLORADO

2 East 14th Avenue

Denver, Colorado 80203

DATE FILED: October 9, 2015 11:58 PM

FILING ID: F87B7AB21C9F2

CASE NUMBER: 2015CA50

Appeal from the District Court, El Paso County

Honorable Robert Lowrey, District Judge

Case No. 13CR123

Defendant-Appellant:

Randall Leverton

Plaintiff-Appellee:

▲COURT USE ONLY ▲

The People of the State of Colorado

Attorney for Appellant (Appointed by the office of the

Alternate Defense Counsel):

Case No. 2015CA50

Katayoun A. Donnelly

Azizpour Donnelly LLC

2373 Central Park Boulevard, Suite 100

Denver CO 80238

Phone Number: 720-675-8584

E-mail:katy@kdonnellylaw.com

Atty. Reg. #: 38439

DEFENDANT-APPELLANT’S OPENING BRIEF

The prosecution’s theft by receiving case was built on out-of-court

testimonial statements of Ms. Harbaugh. Before the trail started, though, the

prosecution knew that their main witness, Ms. Harbaugh, would not respond

to any questions regarding the events at issue in this trial, as she had asked

the prosecution to release her from her subpoena due to a drug-induced total

lack of memory regarding any prior statements and the events related to this

case. (See id., p.15, ll.12-19.) Over Mr. Leverton’s ad nauseam objections

throughout the trial, the trial court allowed the prosecution to read Ms.

Harbaugh out-of-court testimonial statements to the jury line by line, after

she represented that she could not remember having made any statements at

all. And again, over Mr. Leverton’s objection, the prosecution re-read them

to the jury while questioning officers Widner and Ryan Jacobsen.2

The other main witness in the case was the driver of the stolen

vehicle, Mr. Carter. The trial court, over Mr. Leverton’s objection, excused

Mr. Carter from taking the stand because the prosecution refused to offer

him immunity to respond to Mr. Leverton’s questions. Outside the presence

of the jury, Mr. Leverton tendered the specific questions he planned to ask

Mr. Carter. (Rec. Tr. Vol. II [Sep. 17, 2014], p.23.) The questions were

Ms. Engler, similarly, could not remember having made any statements to

the police. Mr. Leverton raised the same objections as to reading her alleged

testimony to the jury. (See, e.g., Rec. Tr. Vol. I, pp.85-6.)

dismiss 2013CR123 for violation of the mandatory joinder rule. The court

orders, therefore, violated Mr. Leverton’s rights under the double jeopardy

and due process clauses of the United States and Colorado Constitutions.

This was a structural error.

Third, the trial court erred when it allowed the prosecution to call Ms.

Harbaugh to the stand, over Mr. Leverton’s objection, knowing that she

would assert total loss of memory as to existence of any prior statements and

their contents. Under these circumstances, Ms. Harbaugh’s assertion of

complete loss of memory regarding making any statements regarding Mr.

Leverton’s involvement did not constitute a statement, for the purposes of

rules of evidence, to allow admission of any prior inconsistent statements.

And more importantly, even if those prior statements could be admissible

under the rules of evidence, Ms. Harbaugh was an unavailable witness under

Crawford v. Washington.

Her out-of-court testimonial statements were

introduced to the jury without Mr. Leverton ever having had the opportunity

for a meaningful cross-examination of those prior statements that implicated

him.4 This error violated the rules of evidence and Mr. Leverton’s rights

under the confrontation clauses of the United States and Colorado

The same analysis applies to Ms. Engler’s statements. Like Ms. Harbaugh,

Ms. Engler asserted that she could not remember having made any

statements that night. And Mr. Leverton objected to the improper admission

of her prior statements. (See Rec. Vol. I., pp. 118-20.)

examination violated the defendant's right of confrontation.”), cert. denied,

546 U.S. 996, 126 S.Ct. 597, 163 L.Ed.2d 496 (2005).

Whether the admission of objected-to evidence under Rule[s] . . . [of]

Evidence, was proper is a mixed question of law and fact; the factual

determinations are reviewed for clear error and the legal issues are reviewed

de novo. See United States v. Bagley, 537 F.2d 162, 166 (5th Cir. 1976).

Legal Analysis

In all state and federal criminal prosecutions, the accused has a right,

guaranteed by the Sixth and Fourteenth Amendments to the United States

Constitution, “to be confronted with the witnesses against him.” U.S. Const.

amends. VI, XIV; Crawford v. Washington, 541 U.S. 36, 42, 124 S.Ct. 1354,

1359, 158 L.Ed.2d 177 (2004).

The only statements against Mr. Leverton in the theft case came from

the other passengers in the car (who had received favorable plea deals from

the prosecution, (see Rec. Tr. Vol. I, pp. 82.)).7 Both Ms. Harbaugh and Ms.

Widner stated at trial that they did not remember having made any

statements in this case and that they could not remember any specifics about

Mr. Leverton’s involvement. The statements read to the jury were out-ofMr. Leverton also requests that the court take judicial notice of Ms.

Engler’s plea of deferred sentence in El Paso County case No. 2012CR4671.

court testimonial statements that Mr. Leverton never got the chance to crossexamine. Therefore, he was not able to confront the witnesses against him

concerning either their statements or their loss of memory.

The prosecution at trial relied on Colorado Revised Statute section 1610-201 as the basis for admission of these statements. Mr. Leverton

objected to admission of Ms. Harbaugh and Ms. Engler’s out-of-court

testimonial statements on the basis that when the witness denies

remembering having ever made the statement, there is no statement made

and therefore prior inconsistent statements cannot be admitted. (See, e.g.,

Rec. Tr. Vol. I. pp.62-64, 71-2, 75-6, 85-6.) Nevertheless, the court allowed

the prosecution to read the prior statements, in their entirety, to the jury,

multiple times, once when questioning the witnesses who did not remember

making the statements and again and again by asking the officers. (See Rec.

Tr. Vol. I. pp.62-64, 71-2, 75-6, 85-6, 118-19, 120, 122, 153, 155.) And it

did this knowing that Mr. Leverton would not be able to cross-examine them

on those statements since they denied remembering ever making them. Mr.

Leverton, again, objected relying on Crawford that under the circumstances

created by the court’s rulings he was deprived of his right to meaningfully

cross-examine prior statements that involved him. (See, e.g., Rec. Tr. Vol. I.

pp.85-6.)

As Mr. Leverton argued during trial, the statements in question here

are not admissible under Section 16-10-201 because a witness is not

“testifying” as to an issue, even if she is physically present, if she claims

complete loss of memory regarding making a statement.8 And as such, she

cannot be impeached by prior inconsistent statements, since no statement has

been made to be impeached.

“A claimed inability to recall, when

disbelieved by the trial judge, may be viewed as inconsistent with previous

statements when the witness does not deny that the previous statements were

in fact made.” United States v. Brown, 788 F.3d 830, 834 (8th Cir. 2015)

(emphasis added) (quoting United States v. Rogers, 549 F.2d 490, 496 (8th

Cir. 1976)).

Accordingly, the trial court erred when it allowed the prosecution to

read and re-read those statements to the jury.

(1) Where a witness in a criminal trial has made a previous statement

inconsistent with his testimony at the trial, the previous inconsistent

statement may be shown by any otherwise competent evidence and is

admissible not only for the purpose of impeaching the testimony of the

witness, but also for the purpose of establishing a fact to which his testimony

and the inconsistent statement relate, if:

(a) The witness, while testifying, was given an opportunity to explain or

deny the statement or the witness is still available to give further testimony

in the trial; and

(b) The previous inconsistent statement purports to relate to a matter within

the witness’s own knowledge.

More importantly, even if the statements were admissible under the

rules of evidence, they still violated Mr. Leverton’s Sixth Amendment

rights.

The Confrontation Clause of the Sixth Amendment is

violated when cross-examination is limited to such a degree that

“the trial court did not permit defense counsel to expose to the

jury the facts from which jurors ... could appropriately draw

inferences relating to the credibility of the witness.” Delaware

v. Fensterer, 474 U.S. 15, 19, 106 S.Ct. 292, 88 L.Ed.2d 15

(1985) (quotation marks omitted). If the limits imposed violate

the right of confrontation, we must “consider whether the

record shows ‘beyond a reasonable doubt that the error

complained of did not contribute to the verdict obtained.’”

United States v. Love, 329 F.3d 981, 985 (8th Cir.2003)

(quoting Delaware v. Van Arsdall, 475 U.S. 673, 678–79, 106

S.Ct. 1431, 89 L.Ed.2d 674 (1986)).

United States v. Bentley, 561 F.3d 803, 808 (8th Cir. 2009).

“ The Supreme Court has refocused its analysis of confrontation

clause violations, mandating not that evidence necessarily be reliable, but

that its reliability be assessed in a particular manner—through crossexamination.”

People v. Fry, 92 P.3d 970, 976 (Colo. 2004) (discussing Crawford).

Here, Mr. Leverton could not cross-examine Ms. Harbaugh and Ms.

Engler regarding their prior statements about him because they asserted that

they could not remember having made such statements and that they had a

complete loss of memory regarding those statements. As a result, for the

purposes of meaningful cross-examination and the Sixth

Amendment confrontation guarantee under Crawford, much like witnesses

invoking their Fifth Amendment rights, they were unavailable witnesses,

even though they appeared physically present.9 See e.g., United States v.

Thomas, 62 F.3d 1332, 1337 (11th Cir. 1995) (“[b]ecause they invoked their

Fifth Amendment privilege to remain silent, it is clear that the McCoys were

unavailable”); Fensterer, 474 U.S. at 20, 106 S.Ct. 292; California v. Green,

399 U.S. 149, 168-69, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970) (supporting the

proposition that forgetfulness on the part of a witness can render a crossexamination so ineffective as to make the witness unavailable in instances

where the accused is unable to cross-examine a witness as to both the

statement and the event itself); Crawford v. Washington, 541 U.S. 36, 54,

124 S. Ct. 1354, 1365-66, 158 L. Ed. 2d 177 (2004) (“As the English

authorities above reveal, the common law in 1791 conditioned admissibility

It should be noted that the trial court did not allow Mr. Leverton to ask the

very narrow questions designed to avoid any self-incriminatory response,

even though Mr. Carter was charged with aggravated motor vehicle theft,

because Mr. Carter told the court that he would refuse to answer questions

regarding the events of that night. But at the same time, under almost

identical circumstances, where everyone knew that both Ms. Harbaugh and

Ms. Engler were refusing to respond to any questions regarding the events of

that night and denied remembering ever having made any statements

regarding those events, the court allowed the prosecution to read their prior

testimonies into evidence.

of an absent witness’s examination on unavailability and a prior opportunity

to cross-examine.”)

In sum, the confrontation clause was implicated here because the

prosecution used out-of-court testimonial statements about which the

declarant could not be cross-examined due to memory loss. And there was

no other evidence of Mr. Leverton’s guilt presented.

Accordingly, Mr. Leverton’s conviction for theft should be reversed

because there should be no doubt that there is a reasonable possibility that

the error might have contributed to the conviction. The prosecution cannot

carry its burden to show the trial court’s error was harmless beyond a

reasonable doubt.

IV.

MR. LEVERTON’S CONVICTIONS WERE

UNSUPPORTED BY PROOF OF SUFFICIENT EVIDENCE

BEYOND A REASONABLE DOUBT, IN VIOLATION OF

THE DUE PROCESS CLAUSES OF THE FIFTH AND

FOURTEENTH AMENDMENTS.

AZIZPOUR DONNELLY, LLC

/s/ Katayoun A. Donnelly

Katayoun A. Donnelly, #38439

2373 Central Park Blvd., Suite 100

Denver, CO 80238

Attorney for Defendant/Appellant

COURT OF APPEALS

STATE OF COLORADO

DATE FILED: July 29, 2016 11:48 AM

FILING ID: 7E986B51634EC

CASE NUMBER: 2015CA50

2 East 14th Avenue

Denver, CO 80203

El Paso County District Court

Honorable Robert Lowrey, Judge

Case No. 13CR123

THE PEOPLE OF THE STATE OF

COLORADO,

Plaintiff-Appellee,

RANDALL LEVERTON,

Defendant-Appellant.

CYNTHIA H. COFFMAN, Attorney General

LISA K. MICHAELS,

Assistant Attorney General*

Ralph L. Carr Colorado Judicial Center

1300 Broadway, 9th Floor

Denver, CO 80203

Registration Number: 38949

*Counsel of Record

COURT USE ONLY

Case No. 15CA50

PEOPLE’S ANSWER BRIEF

to jail, one of the officers observed the defendant moving around,

bending down and “acting not normal.” (R. Tr. 9-16-14, p. 139). The

officer then found a methamphetamine pipe hidden in the seat where

the defendant was sitting. (Id. , p. 140, 141).

SUMMARY OF THE ARGUMENT

The trial court properly joined the two offenses into a single

prosecution by granting the prosecution’s motion to amend the felony

case and dismiss the misdemeanor case. This procedure properly served

the purpose of the joinder rule—to join the related offenses to prevent a

technical, arbitrary ban on prosecution of the felony offense.

The trial court also properly admitted the witnesses’s prior

statements as prior inconsistent statements when they testified that

they could not remember either the events they witnessed or their

statements. The inability to remember a statement is tantamount to a

denial of the statement.

Finally, the evidence was sufficient to establish that the defendant

committed the offenses of theft by receiving and possession of

Preservation and Standard of Review

The People agree that the issue was preserved when the

defendant objected at trial as set forth below in section B. The People

also agree that evidentiary errors are reviewed for an abuse of

discretion, People v. Tyme, 2013 COA 59, ¶ 8, and confrontation clause

claims are reviewed de novo, People v. Brown, 2014 COA 155M, ¶ 18.

Preserved evidentiary errors are harmless unless they “substantially

influenced the verdict or affected the fairness of the trial proceedings.”

Hagos v. People, 288 P.3d 116, 119 (Colo. 2012) (internal quotations

omitted).

Additional Facts

Four occupants were in the vehicle when it was pulled over: the

defendant, the driver, and two female passengers, J.H. and A.E. (R. Tr.

9-16-14, pp. 105, 114). J.H. testified that she did not remember any

details about the night the vehicle was pulled over. (Id., pp. 57-60). She

also testified that she did not remember talking to police about what

happened the night they were pulled over or a couple weeks later at the

jail. (Id., pp. 60-61).

As the prosecutor prepared to confront J.H. with her specific

statements to police, the defendant objected, arguing that the prior

statements were inadmissible because the witness did not remember

making them. (R. Tr. 9-16-14, pp. 61-62). The defendant also objected to

the prosecutor confronting the witness with the statements. (Id., p. 63).

The trial court overruled the objection, stating that the prior statements

were admissible and the prosecutor was required to confront the

witness with the statements to lay the foundation for their admission.

(Id., p. 63).

The prosecutor confronted J.H. with her statements to police,

which J.H. testified she did not remember making. (R. Tr. 9-16-14, pp.

65-73, 75-78). The defendant objected on the same grounds, and the

trial court overruled the objection. (Id., pp. 71-72). After the

examination, the defendant objected to the impeachment procedure as

violating his confrontation rights. (Id., pp. 85-86). The trial court again

ruled that the impeachment procedure was proper under the governing

law. (Id., pp. 85-87).

A.E. also testified that she did not remember any details about the

night the vehicle was pulled over. (R. Tr. 9-16-14, pp. 91-94). She also

testified that she did not remember talking to police about what

happened that night or getting a call from the detective. (Id., pp. 94-96).

The prosecution presented J.H. and A.E.’s statements to police

through the testimony of Officer Widner and Detective Jacobsen. (R. Tr.

9-16-14, pp. 120-22, 150-52; R. Tr. 9-17-14, pp. 5-9, 12).

Law and Analysis

Section 16-10-201, C.R.S. (2015) allows the admission of prior

inconsistent statements for impeachment. CRE 613 permits the

admission of prior inconsistent statements by extrinsic evidence

“[w]here the witness denies or does not remember making the prior

statement.” (emphasis added). “For the purpose of introducing the prior

testimony of a witness, the witness’ inability to remember a statement

is tantamount to a denial that he made the statement.” People v. Baca,

633 P.2d 528, 529 (Colo. App. 1981).

Here, the witnesses’s prior statements to police were admitted to

impeach their inconsistent testimony at trial, and in accordance with

CERTIFICATE OF SERVICE

This is to certify that I have duly served the within PEOPLE’S

ANSWER BRIEF upon KATAYOUN A. DONNELLY, via Integrated

Colorado Courts E-filing System (ICCES) on July 29, 2016.

/s/ Tiffiny Kallina

COURT OF APPEALS, STATE OF COLORADO

DATE FILED: October 7, 2016 11:28 PM

FILING ID: 919AB31785405

CASE NUMBER: 2015CA50

2 East 14th Avenue

Denver, Colorado 80203

Appeal from the District Court, El Paso County

Honorable Robert Lowrey, District Judge

Case No. 13CR123

Defendant-Appellant:

Randall Leverton

▲COURT USE ONLY ▲

Plaintiff-Appellee:

The People of the State of Colorado

Attorney for Appellant (Appointed by the Office of the

Alternate Defense Counsel):

Case No. 2015CA50

Katayoun A. Donnelly

Azizpour Donnelly LLC

2373 Central Park Boulevard, Suite 100

Denver CO 80238

Phone Number: 720-675-8584

E-mail:katy@kdonnellylaw.com

Atty. Reg. #: 38439

DEFENDANT-APPELLANT’S REPLY BRIEF

the district court or to the jury that the two offenses were not a part of the

same criminal episode and there was no proof beyond a reasonable doubt

that they were.3 As such, this argument is waived and has no merit.

Finally, in this case, there was no dispute before the trial court that the

prosecution knew4 about both offenses and had ample opportunity to (1) join

the two cases in a single prosecution under Colorado Rule of Criminal

Procedure 8(a) in the beginning, (2) add Case No. 2013CR123 to Case. No

2013M116 by amendment under Colorado Rule of Criminal Procedure 7(e),

Indeed, as discussed in the Opening Brief, the only evidence relating to the

details of the underlying incident was presented by the prosecution, not any

witnesses, in violation of the confrontation clause, since both witnesses

asserted that they could not remember anything about the offenses.

Now, they both claim not to have memory. And, again, you

can decide if someone has incredible detailed recall on January 8th

in the jail, someone that says, “Hey, he had it several days” to

Sergeant Widner but then tells Officer Jacobsen, “Oh, no, the only

time I seen him with that vehicle was that night, the 22nd into the

23rd.”

(Tr. Sep. 17, 2014; closing argument, p. 66, ll. 7-11.)

“Deputy, chief deputy, and assistant district attorneys have all the powers

of the district attorney. Sections 20-1-202, 20-1-204, & 20-1-207, C.R.S.

(1986 Repl.Vol. 8B). Because deputy, chief deputy, and assistant district

attorneys function only by virtue of the district attorney's authority, the

official actions and knowledge of the deputy, chief deputy, and assistant

district attorneys are imputable to the district attorney for purposes of the

compulsory joinder requirement.” People v. Robinson, 774 P.2d 884, 886

(Colo. 1989).

at 1369 n. 9; and California v. Green, 399 U.S. 149, 151, 90 S.Ct. 1930, 26

L.Ed.2d 489 (1970)).

In this case, the only witnesses who could testify against Mr. Leverton

were Ms. Harbaugh and Ms. Wider.

Characterizing them as “prior

inconsistent statements,” the prosecution read their testimony to the jury

multiple times. But Mr. Leverton was not able to cross-examine either of

them because they both stated that they had no memory of ever having made

any statements in this case and that they could not remember any specifics

about Mr. Leverton’s involvement in the case. (See, e.g., R. Tr. [Sep. 16,

2014 (Vol. I)], p. 83, ll. 19-23; p. 94, ll. 12-3, 19-20; p. 95, ll. 10-21; see

also Res. Br., at 7, 15, 16, 17, 18.) Mr. Leverton’s arguments on this issue

and on applicability of Colorado Rules of Evidence and Colorado Revised

Statute section 16-10-201 regarding the “prior inconsistent statements” are

fully briefed in the Opening Brief. (See Op. Br., 17-29 [whether, based on

these facts, for the purposes of Colorado Rules of Evidence and Colorado

Revised Statute section 16-10-201, any “statements” were made].)

The main question before the Court is whether the holdings of the preCrawford cases the prosecution cites survive Crawford.

Respectfully submitted on October 7, 2016.

AZIZPOUR DONNELLY, LLC

/s/ Katayoun A. Donnelly

Katayoun A. Donnelly, #38439

2373 Central Park Blvd., Suite 100

Denver, CO 80238

Attorney for Defendant/Appellant

DISTRICT COURT, EL PASO COUNTY,

STATE OF COLORADO

270 South Tejon Street

Colorado Springs, CO 80903

______________________________________

THE PEOPLE OF THE STATE OF COLORADO,

Plaintiff,

vs.

RANDALL ERIC LEVERTON,

Defendant.

COURT USE ONLY

For the Plaintiff:

DDA Sharon Flaherty, #30909

Office of the District Attorney

105 East Vermijo Street

Colorado Springs, CO 80903

719.520.6000

Case Nos. 13CR123

15CA50

Division 12

For the Defendant:

Damon Cassens, #24503

Office of Alternate Defense Counsel

111 East Cimarron Street

Colorado Springs, CO 80903

719.444.0687

REPORTER'S TRANSCRIPT - VOLUME I

The above-entitled matter came on for jury trial on

Tuesday, September 16, 2014, before the HONORABLE ROBERT LOWREY,

Judge of the District Court.

up here timely.

I don't know if we can, because I don't know how

many trials are going and who's going to try to grab a part of the

panel first from downstairs, but presumably we can get up here

timely.

into the noon hour.

break sometime probably between 12:00 and 12:30, but if it looks

like we can finish by 12:30 to 12:45, we'll just rush right on and

try to get it done.

All right.

We'll plan to go start to finish, even if it runs a bit

If I see that that's not realistic, we will

Aside from the issue we still have to resolve

about the in limine motion, any other questions or comments from

counsel?

MS. FLAHERTY:

Your Honor, I just wanted to make a

record.

I provided Mr. Cassens some additional information this

morning.

One of our witnesses, Jennifer Harbaugh, who was a

passenger in the vehicle, contacted me about what time to appear at

court today.

time to be here.

her subpoena because she doesn't remember anything.

that information on to Mr. Cassens.

And I advised her how to find the courtroom and what

She wanted to know if she could be released from

So I passed

In addition, another witness that we have listed, Victor

Carter, in rerunning the criminal histories this morning to make

sure there was nothing new, Mr. Carter, in fact, does have

something new.

aggravated motor vehicle theft.

state judicial and I have provided it to Mr. Cassens, so that has

He has a 14CR case where he is charged with

I printed the information off of

No.

-- 2012?

But you know it wasn't you?

Well, I don't know how to drive, Your Honor -- sir.

Do you remember whether it was the white guy or the black

I don't remember.

guy?

I mean, I would have said it was the

black guy, but I don't want to say I remember because I don't.

Now, earlier you testified you get mad when you go to

Yes.

Why is that?

Because I lose my freedom.

Does that getting mad make you do things?

Sometimes.

Like, make stories up?

Sometimes.

Seek revenge against people?

Yes.

jail?

I mean, I don't remember if I did or not.

even remember anything of that night.

up a story that night.

wrong and wrote it in the book differently.

anything that I said.

I don't

I don't remember if I made

I don't remember if a cop took my word

I don't remember

But, again, to be clear, one of the things -- you just

testified that one of the things you do when you get mad when you

MS. FLAHERTY:

That's fine.

I would want to take a break after her at the very least.

THE COURT:

MS. FLAHERTY:

THE COURT:

she's going to take a while.

Is it going to be long?

I don't believe so.

We will take a break beforehand, if you think

(Whereupon the following proceedings were held in the

hearing of the courtroom:)

THE COURT:

recess at this time.

I have Ashley Engler here.

All right, Folks.

We'll take an afternoon

Let me remind you again not to discuss this case among

yourselves or with any third persons.

you, let me know.

case in any form of media.

any kind on your own.

And do not form a final opinion until you are allowed to

deliberate.

If anyone tries to talk to

Do not read or listen to anything about this

Do not undertake any investigation of

Don't visit any premises you've heard about.

We'll probably take a 15-minute recess.

If you'll go

with my clerk, please.

(At 3:11 p.m. - jury excused from courtroom.)

THE COURT:

MR. CASSENS:

Anything before we break?

Your Honor, not to violate my own rule of

never continuing to argue after I've been told no, but I think I do

need to make some additional record.

cross-examine.

I have zero ability to

Yes, Ms. Harbaugh was called and, yes, we'll have the

officer later; but, again, I can't cross-examine "I don't know."

have no zero ability to do that.

cross-examine the officer and his veracity of repeating something

that was told him at a later date in time.

I have absolutely no ability to

I just under -- under Crawford and all the confrontation

cases, I have -- again, I have no ability to cross-examine "I don't

know."

There's no way to get at that.

THE COURT:

Anything else, Ms. Flaherty?

MS. FLAHERTY:

Your Honor, Pepper -- I acknowledge his

difficulty, but took the position that where a witness takes the

stand and is available for cross-examination, the witness's actual

or feigned memory loss regarding prior inconsistent statements does

not violate a defendant's confrontation right.

THE COURT:

Well, I'm not sure the rule could be any

other way under these circumstances.

upon the statute and the rules of evidence, you have to be able to

lay the foundation.

with specific questions.

do that.

In this Court's view, based

Ms. Flaherty is trying to do that specifically

I am not sure there's any better way to

The fact this witness, as she said, either doesn't

remember or feigns lack of memory certainly doesn't really aid

either side, unfortunately.

witness, frankly.

virtually zero memory of a period of time a year and a half ago.

I don't know what to make of this

I don't know that I've seen someone who had

In the police car.

I don't remember.

Do you remember if Jennifer was in the car with you?

Yeah, she was in the car with me.

Okay.

Was there anyone else in the car with

you?

Do you remember if you and she had any

conversation on the way to Fountain?

No, I don't.

Do you remember speaking with a Sergeant Widner down at

Fountain?

No.

Do you remember him taking you aside, away from Jennifer,

to speak with you privately?

No, I don't.

Do you remember him asking you how you came to be in that

vehicle that night?

No, I don't.

Do you remember telling Sergeant Widner that Mr. Leverton

had picked you up in that vehicle that night?

I don't remember.

Do you remember what your telephone number was back then?

No, I don't.

If I told you 216.9450, was that ever your telephone

number?

Appendix C

DATE FILED: October 2, 2017

CASE NUMBER: 2017SC311

Colorado Supreme Court

2 East 14th Avenue

Denver, CO 80203

Certiorari to the Court of Appeals, 2015CA50

District Court, El Paso County, 2013CR123

Petitioner:

Supreme Court Case No:

2017SC311

Randall Eric Leverton,

Respondent:

The People of the State of Colorado.

ORDER OF COURT

Upon consideration of the Petition for Writ of Certiorari to the Colorado

Court of Appeals and after review of the record, briefs, and the judgment of said

Court of Appeals,

IT IS ORDERED that said Petition for Writ of Certiorari shall be, and the

same hereby is, DENIED.

BY THE COURT, EN BANC, OCTOBER 2, 2017.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.