People v. Kirby

549 P.3d 1055

2024 COA 20

The PEOPLE of the State of Colorado, Plaintiff-Appellee,

v.Bryan Christopher KIRBY, Defendant-Appellant.

Court of Appeals No. 21CA1699

Colorado Court of Appeals, Div. V.

Announced February 29, 2024

Adams County District Court No. 18CR4280, Honorable Sean Finn, Judge

Philip J. Weiser, Attorney General, Trina K. Kissel, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Jeffrey A. Wermer, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

Opinion by JUDGE KUHN

¶ 1 Defendant, Bryan Christopher Kirby, appeals his convictions and sentences for reckless vehicular homicide, reckless manslaughter, leaving the scene of an accident resulting in death, and careless driving resulting in death. His challenge requires us to decide for the first time whether reckless manslaughter and careless driving resulting in death are lesser included offenses of reckless vehicular homicide.

¶ 2 Applying the clarified statutory elements test from Reyna-Abarca v. People, 2017 CO 15, 390 P.3d 816, and deriving further support from the supreme court’s ruling in People v. Chapman, 192 Colo. 322, 557 P.2d 1211 (1977), we hold that reckless manslaughter and careless driving resulting in death are both lesser included offenses of reckless vehicular homicide. Consequently, we vacate Kirby’s convictions for the two lesser included offenses, and we remand the case to the trial court to correct his mittimus. In all other regards, we affirm.

I. Background

¶ 3 Early one morning, Kirby caused a deadly crash on E-470 in Adams County. According to the probable cause affidavit for his arrest, Kirby was driving at a high rate of speed in the left lane before losing control, drifting into the right lane, and hitting the back of another vehicle. The force of the impact caused both vehicles to roll over several times on the highway and down an embankment. The driver of the other car suffered devastating injuries and died at the scene. Kirby, on the other hand, fled the scene of the crash without reporting it or assisting the victim.

¶ 4 A few days later, police identified Kirby as the perpetrator of the hit-and-run based on physical evidence recovered from the crime scene and a livestream video that Kirby had posted to Facebook shortly after the crash. During the seven-and-a-half-minute video, Kirby can be seen bragging about how fast he was driving; he reached speeds of up to 167 miles per hour and was going about 120 miles per hour just before crashing into the victim’s car.

¶ 5 The prosecution charged Kirby with first degree extreme indifference murder and leaving the scene of an accident resulting in death. Kirby argued at trial that his conduct didn’t rise to the level of first degree murder because he didn’t intend to kill the victim. The jury convicted Kirby of reckless manslaughter — a lesser included offense of first degree murder. The jury also convicted him of leaving the scene of an accident resulting in death, reckless vehicular homicide, and careless driving resulting in death.

¶ 6 The court sentenced Kirby to fifteen years in the custody of the Colorado Department of Corrections for the leaving the scene of an accident resulting in death conviction, and eight years each for his reckless manslaughter and reckless vehicular homicide convictions. The court also imposed a thirty-day jail sentence for the careless driving resulting in death conviction. All four sentences were imposed to run concurrently.

II. Analysis

¶ 7 On appeal, Kirby contends that the trial court reversibly erred by (1) continuing his jury trial past the statutory speedy trial deadline; (2) failing to merge the convictions for reckless manslaughter and careless driving resulting in death with his conviction for reckless vehicular homicide; (3) engaging in judicial factfinding of aggravating circumstances; and (4) failing to consider his character and rehabilitative potential at the sentencing hearing. We agree with Kirby on his second claim. Thus, we vacate his convictions and sentences for reckless manslaughter and careless driving resulting in death, remand the case to the trial court to merge these offenses with his conviction for reckless vehicular homicide, and direct the court on remand to correct his mittimus. We disagree with Kirby’s other claims.

A. Speedy Trial

¶ 8 Kirby first contends that the trial court violated his statutory right to a speedy trial by relying on the effects of the COVID-19 pandemic to continue his trial date past the speedy trial deadline. We disagree.

1. Additional Background

¶ 9 Kirby’s six-month speedy trial timeframe started in July 2019 when he pleaded not guilty to his charges. See § 18-1-405(1), C.R.S. 2023. In October, that deadline was extended to April 22, 2020, after Kirby waived his speedy trial right in connection with resetting the trial.

¶ 10 Three weeks before the April trial date, the parties attended a pretrial conference where they announced their readiness to proceed. By that time, however, the federal and state governments had already started to impose restrictive measures intended to curb the effects of the COVID-19 pandemic. Recognizing this reality, the prosecution qualified its position on readiness:

Obviously, there are extenuating circumstances I think we are all aware of. I will tell the Court as far our preparedness goes, there is one witness we have to fly in from out of state, Mr. [Ruben] Ramos, form[er]ly with the Colorado Bureau ofInvestigation. We do consider him a central witness.

At this time there does not appear to be impediments getting him here. However, as the situation evolves, if there are airport shutdowns, things of that nature, we may have to revisit the issue.

¶ 11 In the days following the pretrial conference, the Governor of Illinois — the state where Ramos lived at the time — and multiple government agencies in Colorado issued various orders restricting the movement of people and limiting the size of gatherings. In response to these developments, the prosecution moved to continue the trial ten days before it was set to begin. The prosecution argued that a continuance was warranted under section 18-1-405(6)(g) because (1) Ramos, an expert witness in the case, couldn’t travel to Colorado because Illinois had a stay-at-home order in effect; and (2) the COVID-19 virus, and the measures imposed to address it, constituted exceptional circumstances precluding effective administration of the trial.

¶ 12 After holding a hearing on March 31, the court agreed with the prosecution on both counts. It granted the continuance and reset the trial to July 2020, well after the then-effective April 22 speedy trial deadline.

¶ 13 The day after the April 22 deadline expired, Kirby moved the court to dismiss the case for violation of his statutory speedy trial right, arguing that the court erred by granting the continuance under section 18-1-405(6)(g)(I)-(II). When the court denied the motion, it reiterated that continuing the case was appropriate due to the pandemic and supplemented its rationale with the supreme court’s ruling in People v. Lucy, 2020 CO 68, 467 P.3d 332.

¶ 14 Between July 2020 and July 2021, the court reset the trial date four more times. On two occasions, in October 2020 and February 2021, Kirby requested the continuance and waived his speedy trial right.¹ Finally, the case proceeded to a four-day jury trial on July 12-15, 2021, almost two years after Kirby pleaded not guilty.

2. Applicable Law and Standard of Review

[1] ¶ 15 Section 18-1-405 guarantees criminal defendants the right to a speedy trial. People v. McMurtry, 122 P.3d 237, 240 (Colo. 2005). Specifically, the statute requires that a defendant be brought to trial within six months of entering a plea of not guilty unless the time for trial is extended or tolled for one of several statutorily specified reasons. § 18-1-405(1). In turn, subsection (6) identifies the delays that toll the speedy trial deadline from running:

In computing the time within which a defendant is brought to trial as provided in subsection (1) of this section, the following periods of time are excluded:

….

(g) The period of delay not exceeding six months resulting from a continuance granted at the request of the prosecuting attorney, without the consent of the defendant, if:

(I) The continuance is granted because of the unavailability of evidence material to the state’s case, when the prosecuting attorney has exercised due diligence to obtain such evidence and there are reasonable grounds to believe that this evidence will be available at the later date; or

(II) The continuance is granted to allow the prosecuting attorney additional time in felony cases to prepare the state’s case and additional time is justified because of exceptional circumstances of the case and the court enters specific findings with respect to the justification.

§ 18-1-405(6) (emphasis added); see also Lucy, ¶ 24 (concluding that subsection (6)(g)(I) applies in circumstances where material evidence is unavailable due to the public health crisis, the prosecution has exercised due diligence to obtain that evidence, and there are reasonable grounds to believe that the unavailable evidence will be available on the new trial date).

[2–4] ¶ 16 Whether a defendant’s statutory speedy trial right has been violated is a matter of statutory interpretation that we review de novo. People v. Nunez, 2021 CO 31, ¶ 16, 486 P.3d 1149. In contrast, we review the trial court’s decision to grant a continuance under subsection (6) of the statute for an abuse of discretion. Delacruz v. People, 2017 CO 21, ¶ 20, 393 P.3d 480. The court abuses its discretion when it acts in a manifestly arbitrary, unfair, or unreasonable manner, or its decision is based on a misunderstanding or misapplication of the law. People v. Marston, 2021 COA 14, ¶ 21, 491 P.3d 412.

3. Discussion

[5–7] ¶ 17 Kirby only challenges the court’s...