People v. Martinez

552 P.3d 551

2024 COA 34

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

v.Stephanie MARTINEZ, Defendant-Appellant.

Court of Appeals No. 22CA0667

Colorado Court of Appeals, Div. VII.

Announced April 11, 2024

City and County of Denver District Court No. 20CR2834, Honorable Jay S. Grant, Judge

Philip J. Weiser, Attorney General, Josiah Beamish, 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 LIPINSKY

[1] ¶ 1 Our system of criminal justice does not condone forcing a defendant to guess the charges the defendant will face at trial. "The right of an accused to notice of the charges which have been made against [the accused] constitutes a fundamental constitutional guarantee and lies at the foundation of due process of law." People v. Cooke, 186 Colo. 44, 46, 625 P.2d 426,428 (1974).

[2, 3] ¶ 2 These due process principles underlie the prohibition against "constructive amendments." A constructive amendment occurs when a court "changes an essential element of the charged offense and thereby alters the substance of the charging instrument." People v. Rodriguez, 914 P.2d 230, 257 (Colo. 1996). Such a difference between the charging instrument and the judgment of conviction "contravenes a defendant’s constitutional rights when it ‘effectively subject[s] [the] defendant to the risk of conviction for an offense that was not originally charged.’ Hoggard v. People, 2020 CO 54, ¶ 24, 465 P.3d 34, 41 (quoting Rodriguez, 914 P.2d at 257).

¶ 3 In this case, we consider whether a defendant’s due process rights are violated when the court enters a judgment of conviction on an uncharged lesser nonincluded offense premised on the jury’s answer to a verdict question presented in a special interrogatory (the interrogatory) at the close of evidence — even though the defendant knew about the fact addressed in the verdict question from the inception of the proceedings.

[4, 5] ¶ 4 We hold that, notwithstanding the defendant’s awareness of the undisputed fact, the constitution prohibits a court from relying on the jury’s answer to the interrogatory to enter a conviction on the lesser nonincluded offense because such use of the answer "effectively subject[s] [the] defendant to … conviction for an offense that was not originally charged." Rodriguez, 914 P.2d at 257 (quoting United States v. Mosley, 965 F.2d 906, 915 (10th Cir. 1992)). Due process protects a defendant not only from surprise regarding evidence offered at trial, but also from surprise regarding the charges for which she is prosecuted, so she can tailor her defense and trial strategy appropriately. See Cooke, 186 Colo. at 46, 525 P.2d at 428.

¶ 5 In the absence of guidance from our supreme court whether a constructive amendment is a structural error, requiring automatic reversal, we apply the constitutional harmless error standard of review and conclude that, in this case, the People did not prove beyond a reasonable doubt that the constructive error was harmless.

¶ 6 Stephanie Martinez appeals the judgment of conviction for criminal negligence resulting in the death of an at-risk person and second degree assault. The jury specifically found Martinez guilty of criminally negligent homicide and that her victim was an at-risk person. We reverse Martinez’s conviction for criminal negligence resulting in the death of an at-risk person but affirm her conviction for second degree assault, and we remand the case with instructions to enter a conviction for criminally negligent homicide.

I. Background

¶ 7 A jury could have reasonably found the following facts.

¶ 8 Martinez was sitting on a bench in downtown Denver next to George Black, an eighty-year-old man. A surveillance video showed that Martinez struck Black several times, they became entangled and fell to the ground, and a bystander intervened and chased Martinez away. Black had a heart attack and was pronounced dead less than two hours after the altercation.

¶ 9 Martinez was arrested. As law enforcement officers attempted to place her into a holding cell at the Denver jail, Martinez spat in the face of Officer Kenneth Bridges, who was wearing a face mask.

¶ 10 Martinez was charged with two counts of first degree murder of Black, pursuant to section 18-3-102(1)(a) and (d), C.R.S. 2023; second degree assault of Officer Bridges, pursuant to section 18-3-203(1)(h), C.R.S. 2023; and violation of bail bond conditions, pursuant to section 18-8-212(1), C.R.S. 2023. (The charge for violation of bail bond conditions was later dismissed.)

¶ 11 At the conclusion of trial, the jury acquitted Martinez of first degree murder but found her guilty of the lesser included offense of criminally negligent homicide. It also found that Black was an at-risk person. Based on those findings, the court entered a conviction for criminal negligence resulting in the death of an at-risk person under section 18-6.5-103(2)(a), C.R.S. 2023. Applying the crime of violence sentencing framework, the court sentenced Martinez to fourteen years in the custody of the Department of Corrections.

¶ 12 Additionally, the court entered a judgment of conviction based on the jury’s verdict finding Martinez guilty of second degree assault (bodily fluids), pursuant to section 18-3-203(1)(h). The court sentenced Martinez to two years in the custody of the Department of Corrections on that charge, with the sentences to run consecutively.

II. Analysis

¶ 13 On appeal, Martinez contends that (1) the court violated her due process and statutory rights by entering a conviction on and sentencing her for an uncharged, lesser non-included offense over her objection — amounting to a constructive amendment of the information; (2) there was insufficient evidence to support a finding that she had the intent to infect, injure, or harm Officer Bridges and, therefore, to sustain the second degree assault conviction; and (3) the court reversibly erred by excluding evidence that Martinez asked law enforcement personnel if she was "going to detox." We agree with her first argument and disagree with her second and third arguments.

A. Constructive Amendment

1. Additional Facts

¶ 14 Three days after the incident, the prosecution filed an information charging Martinez with two counts of first degree murder pursuant to section 18-3-102 under subsection (1)(a) (after deliberation) and subsection (1)(d) (extreme indifference). The information did not allege that the victim — Black — was an at-risk person, refer to Black’s age, or allege a separate count for a crime of violence.

¶ 15 At a pretrial conference, defense counsel indicated that she would likely seek jury instructions for all the lesser included homicide offenses. The prosecution did not move to amend the information under Crim. P. 7(e).

¶ 16 On the last day of trial, the prosecutor asked the court to provide the jury with an at-risk-person interrogatory "because of the nature of the lesser includeds that the Defense has asked for." The prosecutor explained that the jury’s answer to the interrogatory would then "make those counts crimes of violence," or could otherwise be used as an aggravating factor at sentencing. The court allowed the interrogatory over defense counsel’s objection. In addition to instructions for first degree murder (after de- liberation) and (extreme indifference), the court also gave the jury instructions and verdict questions for the lesser included offenses of second degree murder, reckless manslaughter, and criminally negligent homicide.

¶ 17 The jury acquitted Martinez of first degree murder but found her guilty of the lesser included offense of criminally negligent homicide, a class 5 felony under section 18-3-105, C.R.S. 2023, with a presumptive sentencing range of one to three years’ imprisonment. See § 18-1.3-401(1)(a)(V)(A.1), C.R.S. 2023. It also found that Black was an at-risk person.

¶ 18 The prosecution filed a post-trial motion requesting that the court sentence Martinez for criminal negligence resulting in the death of an at-risk person, a class 4 felony under section 18-6.5-103(2)(a), and a crime of violence as defined by section 18-1.3-406(2)(a)(I), C.R.S. 2023, with a sentencing range of five to sixteen years imprisonment. See § 18-1.3-406(1)(a); § 18-1.3-401(1)(a)(V)(A.1), (10)(a). The prosecution conceded that it had not charged Martinez under the crimes against at-risk persons statute. However, the prosecution asserted that a judgment of conviction for the lesser nonincluded offense would not raise due process concerns because it requested the interrogatory "only after [Martinez] requested several lesser included offenses."

¶ 19 The court granted the motion. As noted above, it entered a judgment of conviction for criminal negligence resulting in the death of an at-risk person, and sentenced Martinez to fourteen years on that charge.

¶ 20 On appeal, Martinez contends that, by entering a conviction and sentencing her on this uncharged, lesser nonincluded offense, the court violated her constitutional right to due process. We agree.

2. Relevant Law and Standard of Review

[6–8] ¶ 21 "The U.S. and Colorado Constitutions guarantee defendants the right to be notified of the charges against them." Hoggard, ¶ 22, 465 P.3d at 40. An information serves this constitutional interest by "provid[ing] the defendant with notice of the offense charged, as well as the factual circumstances surrounding the offense so that the defendant can adequately defend … herself." Fisher v. People, 2020 CO 70, ¶ 14, 471 P.3d 1082, 1086 (quoting People v. Williams, 984 P.2d 56, 60 (Colo. 1999)). "The notice given must be sufficient to advise the accused of the charges, to give [her] a fair and adequate opportunity to prepare [her] defense, and to ensure that [s]he is not taken by surprise because of evidence offered at the time of trial." Cooke, 186 Colo....