February 16, 2012
Colorado Court of Appeals 2-2-12 People v. Wartena
People v. Wartena Lesser Non-Includeds – Re-Trial – Double Jeopardy / Burglary – intent to commit a crime therein
Facts: This unfortunate day for Mr. Wartena started when he and a friend stole a truck, a license plate, and items from another car. The thefts got the attention of the eye-witness in the case. The eye-witness called the police and followed the pair as they drove the stolen truck. At some point, Mr. Wartena shot at the eye-witness. Subsequently, the police chased the pair in the stolen truck. During the chase, Mr. Wartena’s co-defendant lost control of the truck, hit an SUV, and killed a passenger in the SUV. Mr. Wartena and the co-defendant escaped on foot, and took refuge in a barn. By the time they had gotten to the barn, Mr. Wartena lost his shoes. The prosecution claimed the boots Mr. Wartena wore when the police arrested him came from the barn.
The prosecution charged a slew of crimes with the most serious being 1˚ extreme indifference murder for the dead person in the SUV, and attempted murder for shooting at the eye-witness. The first trial ended in a hung jury on the most serious charges, but the jury convicted Mr. Wartena on lesser non-included offenses the defense submitted. Upon re-trial, the defense argued for a judgment of acquittal on the burglary because the prosecution failed to prove that Mr. Wartena formed the requisite intent to commit theft prior to entering the barn. The trial court denied the motion. Further, the trial court refused to submit the same lesser non-includeds the defense submitted and the jury convicted on in the first trial. The trial court reasoned that Double Jeopardy barred re-trial on those same charges. The jury hung again after the second trial, and the prosecution eventually dismissed the 1˚ murder charge against Mr. Wartena. However, the jury returned guilty verdicts on other charges, including burglary. Great work by the trial lawyers - Nancy Holton and Rex Hegyi.
Issue: Whether the requisite intent for burglary can be formed after entering the structure?
Reasoning: The Court of Appeals reversed centuries of law, and held that the intent to commit the crime therein can be formed after entering the barn. The Court cited the legislative change after the Colorado Supreme Court decided In Cooper v. People, 973 P.2d 1234, 1240 (Colo.1999)(where the Court held the requisite intent must be formed prior to entry of the structure). The Court of Appeals reasoned “the General Assembly amended the second degree burglary statute by adding the ‘after a lawful or unlawful entry’ language ... thus removing the requirement that intent to commit a crime exist at the time of entry.” quoting People v. Larkins, 109 P.3d 1003, 1004 (Colo.App. 2004)(where the Larkins panel held intent may be formed after entry of the structure).
Issue: Whether the trial court may deny lesser non-included instructions on the basis a prior jury previously convicted the accused of the same charges?
Reasoning: The Court of Appeals held that if the instructions as a whole encapsulate the defense theory of the case, then the trial court may deny otherwise applicable lesser non-included instructions. On appeal the prosecution argued that the Double Jeopardy Clauses and issue preclusion barred the lesser non-includeds upon retrial. The Court of Appeals sidestepped the, Trujillo, to hold that even though the evidence supported the lesser non-included offense instructions, the trial court did not deny Mr. Wartena due process because the instructions as a whole encompassed his theory of defense.