Colo. R. Crim. P. 8
Colo. R. Crim. P. 8
Annotation I. General Consideration. Law reviews. For article, "Colorado Felony Sentencing", see 11 Colo. Law. 1478 (1982). Applied in People v. Mendoza, 190 Colo. 519, 549 P.2d 766 (1976); People v. McCrary, 190 Colo. 538, 549 P.2d 1320 (1976); Brutcher v. District Court, 195 Colo. 579, 580 P.2d 396 (1978); Jeffrey v. District Court, 626 P.2d 631 (Colo. 1981); People v. Holder, 632 P.2d 607 (Colo. App. 1981). II. Joinder of Offenses When joinder of offenses permitted. This rule provides that two or more offenses may be charged in the same information, in a separate count for each offense, if the offenses charged are based upon the same act or transaction, or on two or more acts or transactions connected together and that they were properly charged in separate counts for each offense. Ruark v. People, 158 Colo. 287, 406 P.2d 91 (1965). Where the acts involved were committed at the same time or in immediate succession and at the same place, they arose out of the same criminal episode; therefore, it is appropriate to include the separate counts in a single information. People v. McGregor, 635 P.2d 912 (Colo. App. 1981). Purpose of joinder is 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. Ruth v. County Court, 198 Colo. 6, 595 P.2d 237 (1979). "Single prosecution" is a proceeding from the commencement of the criminal action until further prosecution is barred. Ruth v. County Court, 198 Colo. 6, 595 P.2d 237 (1979). Rule 8(a) applies only where prosecution aware of other offenses. Section (a) of this rule and § 18-1-408(2) apply only where the prosecution is aware of other offenses at the time the original action is commenced. People v. Scott, 615 P.2d 680 (Colo. 1980). Jeopardy must attach before there is "subsequent prosecution". The proscription contained in section (a) is against bringing a "subsequent prosecution" based on charges known to the prosecutor at the time he commenced the initial prosecution, and there is no "subsequent prosecution" until jeopardy attaches to the initial prosecution. People v. Freeman, 196 Colo. 238, 583 P.2d 921 (1978). Guilty plea to related charge bars subsequent prosecution. Section (a) and § 18-1-408(2), bar the prosecution of a defendant for two pending charges arising out of the same criminal episode when the defendant has pleaded guilty and has been sentenced for a third related charge. Ruth v. County Court, 198 Colo. 6, 595 P.2d 237 (1979). Effect of dismissal on attachment of jeopardy. Where dismissal of a count occurred prior to trial and the dismissal had nothing to do with the defendant's criminal liability, jeopardy does not attach. People v. Freeman, 196 Colo. 238, 583 P.2d 921 (1978). In joinder of offenses of similar character, prejudice may develop because defendant's statements concerning his involvement in one count would not ordinarily be admissible at a separate trial of the second count, since it is related to the other count only as a crime of a similar nature. People v. McCrary, 190 Colo. 538, 549 P.2d 1320 (1976). Nearness in time, proximity of place and unity of scheme are not indispensable prerequisites to joinder under the "same criminal episode" standard, although multiple offenses characterized by all three components would certainly qualify for joinder under section (a). Corr v. District Court, 661 P.2d 668 (Colo. 1983). Law of joinder and severance dependent on facts in each case. The law relating to joinder and severance and that which permits consolidation of charges depends on the facts in each particular case. Hunter v. District Court, 193 Colo. 308, 565 P.2d 942 (1977). Where joinder permitted in sanity trial. Joinder of a charge of forcible rape with an unrelated deviate sexual intercourse charge committed on a different female on a different date for purposes of trial on the sanity issue was not error. People v. Renfrow, 193 Colo. 131, 564 P.2d 411 (1977). But accessory charge barred if not included in first information. The prosecution is precluded from pursuing a second prosecution where the accessory charge could have been included in the first information. People v. Riddick, 626 P.2d 641 (Colo. 1981). Joinder of offenses permitted. People v. Trujillo, 181 Colo. 350, 509 P.2d 794 (1973). Where two assault counts arose out of the same continuous sequence of events closely related in time and distance, the two counts were "based on two acts connected together", and the trial judge was not obligated to sever them at trial. People v. Walker, 189 Colo. 545, 542 P.2d 1283 (1975). Joinder not sanctioned. Where the alleged victims of the crimes are the same, but the same persons are not charged in each offense and material differences exist as to the date of each offense and the factual transactions specified in each count, joinder under such circumstances is not sanctioned by Crim. P. 8(a). Norman v. People, 178 Colo. 190, 496 P.2d 1029 (1972). To be duplicitous, information must join two or more distinct and separate offenses in the same count of an indictment or information. Marrs v. People, 135 Colo. 458, 312 P.2d 505 (1957); Leyba v. People, 174 Colo. 1, 481 P.2d 417 (1971). Count is not bad for duplicity where it sets forth several overt acts in pursuance of the principal act charged, or where it alleges several acts done by the same person which are only successive stages in the progress of a criminal enterprise, constituting as a whole only one offense, although either, when done alone, might be an offense. Marrs v. People, 135 Colo. 458, 312 P.2d 505 (1957). Rule authorizes the joinder of offenses based on a series of acts arising from the same criminal episode. Joinder of offenses committed at different times and places is permissible provided they are part of a schematic whole. People v. Taylor, 804 P.2d 196 (Colo. App. 1990). Sexual assault offenses may be joined if the evidence of each offense would be admissible in separate trials. People v. Williams, 899 P.2d 306 (Colo. App. 1995). Separate offenses may be joined that are committed at different times and places if they constitute part of a schematic whole. The incident at the grocery store and subsequent shopping spree were a continuous criminal episode and there was no prejudice to the defendant in trying the counts together. People v. Smith, 121 P.3d 243 (Colo. App. 2005). Trial court did not abuse discretion by denying motion to sever when the attempted manslaughter charge (having unprotected intercourse while HIV positive) arose from the same act as the sexual assault charges. People v. Dembry, 91 P.3d 431 (Colo. App. 2003). A defendant does not impliedly waive his right to rely upon the statute and rule by entering a plea of guilty in a county court case with knowledge that the district court case is pending. People v. Robinson, 774 P.2d 884 (Colo. 1989). But the right to compulsory joinder may be waived by raising the issue after jeopardy attaches in the second prosecution. People v. Wilson, 819 P.2d 510 (Colo. App. 1991); People v. Carey, 198 P.3d 1223 (Colo. App. 2008). III. Joinder of Defendants. Law reviews. For article, "Pronouncements of the U. S. Supreme Court Relating to the Criminal Law Field: 1985-1986", which discusses a recent case relating to misjoinder of defendants, see 15 Colo. Law. 1615 (1986). By consenting to a joint trial defendant waives any right to urge a later objection thereto based solely on the joinder. Pineda v. People, 152 Colo. 545, 383 P.2d 793 (1963). Considerations in granting motion for severance. When deciding whether to grant a motion for severance, the trial court should consider whether evidence inadmissible against one defendant will be considered against the other defendant, despite the issuance by the trial court of the proper admonitory instructions. An additional consideration is whether the defendants plan to offer antagonistic defenses. People v. Gonzales, 198 Colo. 450, 601 P.2d 1366 (1979). Severance required if joinder prevents fair trial. When joint prosecution would prevent a fair trial of one or more of the defendants, the trial court must grant a motion for severance. People v. Magoon, 645 P.2d 286 (Colo. App. 1982). Motion for severance is addressed to the sound discretion of trial court. People v. Magoon, 645 P.2d 286 (Colo. App. 1982). And not disturbed on appeal absent prejudice. A ruling on a motion for severance will not be disturbed on appeal in the absence of a showing that the denial of such motion prejudiced a defendant. People v. Magoon, 645 P.2d 286 (Colo. App. 1982).