People v. Curtis , 2014 Colo. App. LEXIS 1335 ( 2014 )

JUDGE WEBB

concurring specially.

156 While in agreement with the majority's disposition, I write separately to revisit People v. Gross, 39 P.3d 1279 (Colo.App.2001), which the Attorney General asserts was wrongly decided. Both parties extensively briefed the continued viability of Gross. Its holding-that a defendant need not renew at trial an objection to joinder to preserve the issue for appeal-is not subject to the constitutional avoidance doctrine. See People v. Thomas, 867 P.2d 880, 888 (Colo.1994) ("When possible, statutes are to be construed in such a manner as to avoid questions of their constitutional validity.").

157 Preservation has been described as both "[aln initial question," Minto v. Lambert, 870 P.2d 572, 574 (Colo.App.1993), and "a preliminary matter," Maes v. Lakeview Assocs. Ltd., 892 P.2d 375, 376 (Colo.App. 1994). Our supreme court has explained that before addressing the merits on appeal, "we must consider as a threshold matter whether [the party's arguments below] were adequate to preserve the issue ... for appellate review." Blueflame Gas, Inc. v. Van Hoose, 679 P.2d 579, 586 (Colo.1984).

158 For these reasons, I address preservation, even if-as the majority ably shows-Curtis's misjoinder contention can be rejected without doing so. And contrary to Gross, I conclude that a defendant must renew a joinder objection to preserve the issue, which Curtis failed to do.

I. Background

159 Curtis was first indicted on the charges involving S.C. Six months later, he was separately indicted on the charges involving C.C. Before trial, the prosecution moved to join the cases under Crim. P. 18. The court granted the motion at a pre-trial hearing, over Curtis's objection.

IIL Preservation

(60 In Gross, 39 P.3d at 1281-82, the division held that a defendant need not renew an objection to the prosecution's motion to consolidate indictments in separate cases to preserve the issue for appellate review. The division explained: (1) the requirement that a defendant renew a motion to sever under Crim. P. 14 is not controlling because under Crim. P. 13, "the prosecution rather than the defendant [i]s the moving party with the burden of proof";' (2) because objecting to consolidation under Crim. P. 13 is analogous to a motion in limine, "the objector is entitled to assume that the trial court will adhere to its initial ruling and that the objection need not be repeated"; and (8) the current version of Crim. P. 33(a) "allows the appellate court to review the trial record for prejudice." Id. Since then, other divisions of this court have adopted this conclusion, but without further analysis. See People v. Barrus, 232 P.3d 264, 269 n. 1 (Colo.App.2009); People v. Owens, 97 P.3d 227, 231 (Colo.App.2004); People v. Dembry, 91 P.3d 431, 435 (Colo.App.2003).

161 For the following three reasons, I would decline to follow Gross. See, eg., People v. Washington, 2014 COA 41, 127 ("To the extent that several divisions of this court have departed from Strickland's above-noted statements regarding the applicable burden of proof, we are not obligated to follow those divisions." (citations omitted)).

T 62 First, where a defendant seeks severance under Crim. P. 14, the defendant bears the burden of proof and the defendant must renew the motion to preserve the issue for appellate review. See, eg., People v. Aalbu, 696 P.2d 796, 806 (Colo.1985). In contrast, the prosecution bears the burden of proof under Crim. P. 13. But I do not see why who has the burden would determine that the defendant need not renew the joinder objection to preserve it for appellate review. In either cireumstance, the defendant faces trial on multiple charges.

T 63 Second, the motion in limine rationale would have equal application to a trial court's presumed adherence to its earlier ruling whether a defendant objects to consolidation or moves for severance. Cf. CRE 103(a)(@2) ("Onee the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal."). Thus, why a defendant would be required to renew an objection in one cireumstance but not in another is likewise unclear.

{64 Third, while Crim. P. 88(a) makes post-trial motions optional, the reasons set forth in Aalbu for requiring renewal of a motion to sever do not rest on the scope of appellate review:

The purpose of the renewal motion is to alert the court to the necessity of reconsidering its original decision in light of the evidence presented at trial and to permit the defendant to reevaluate the issue of prejudice and to elect to proceed with a consolidated trial despite the risk of prejudice.

~ 696 P.2d at 806 (internal quotation marks omitted).

'I 65 Thus, the advantages of requiring that a severance motion be renewed are two-fold.

¶66 First, giving the trial court an opportunity to correct potential error furthers judicial economy. People v. Casitas, 2012 COA 117, ¶ 57, 312 P.3d 208 (noting "the significant societal costs" of multiple proceedings). And even if the trial court's only remedy would be ordering a mistrial and retrying the case, the costs and delay of an appeal would be avoided.

T 67 Second, "the defense may have strategically changed its position during the course of the proceeding based upon a perception that developments had redounded to its advantage." State v. Walker, 140 Ohio App.3d 445, 748 N.E.2d 79, 87 (2000). Thus, requiring a defendant to renew the objection to joinder at the close of evidence "prevent[s] a defendant from deliberately failing to make a meritorious motion and waiting to see what verdict the jury returns." United States v. Terry, 911 F.2d 272, 277 (9th Cir.1990).

T 68 Contrary to the division's approach in Gross, both rationales would have similar force if applied to an objection to a motion to join cases under Crim. P. 13. And such a motion raises the same concerns as a motion to sever under Crim. P. 14. See Spicer v. State, 12 S.W.3d 438, 444 (Tenn.2000) ("[Als a practical matter, the appellant's objection to consolidation had the same procedural and substantive effect as a formal motion to sever.").

IIL. Conclusion

T69 I would hold that to preserve an objection to joinder for appeal, the defendant must renew the objection again, no later than at the close of the prosecution's evidence.¹ And I would further hold that because Curtis did not do so, he failed to preserve his improper joinder claim for appeal.

1 . Although relatively few jurisdictions have addressed this question, requiring that the objection be renewed reflects the weight of authority. See, e.g., State v. Bingaman, 655 N.W.2d 51, 53 (N.D.2002) (holding "issue is not properly preserved for appeal" where defendant "objected to joinder before trial, but did not make a motion for severance at the close of evidence"); State v. Walker, 140 Ohio App.3d 445, 748 N.E.2d 79, 87 (2000) (Renewal of an objection to a motion to consolidate "is generally held necessary to preserve the issue for review on appeal."); Spicer v. State, 12 S.W.3d 438, 444 n. 7 (Tenn.2000) ("Because the appellant in this case did renew his objection to consolidation after the State's proof and again in his motion for new trial, he thereby properly preserved his objection for appeal.").