14CA0848 Peo v Mitchell 09-13-2018 COLORADO COURT OF APPEALS Court of Appeals No

82 Pages·2017·0.23 MB·English

14CA0848 Peo v Mitchell 09-13-2018

COLORADO COURT OF APPEALS

Court of Appeals No. 14CA0848
La Plata County District Court No. 12CR165
Honorable Jeffrey R. Wilson, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Tommy Mitchell,

Defendant-Appellant.

JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS

Division III
Opinion by JUDGE FOX
Webb and Richman, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced September 13, 2018

Cynthia H. Coffman, Attorney General, Kevin E. McReynolds, Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee

Samler Whitson PC, Hollis A. Whitson, Eric A. Samler, Denver, Colorado, for
Defendant-Appellant
Table of Contents
I.  Background ....................................................................1  
II.  Sufficiency of the Evidence ..............................................2  
A.  Preservation and Standard of Review ...............................3  
B.  Attempted Robbery ..........................................................4  
1.  Relevant Background ......................................................5  
2.  Law and Analysis ............................................................8  
C.  Theft of Property Under $500 ........................................ 11 
III.  Recusal ......................................................................... 15 
A.  Relevant Background .................................................... 15 
B.  Judicial Bias and the Right to a Fair Trial...................... 18 
1.  The Appearance of Partiality Under Colorado Law .......... 22 
2.  Evaluating Recusal Motions .......................................... 25 
C.  Preservation and Standard of Review ............................. 27 
D.  Timeliness ..................................................................... 30 
E.  Analysis ........................................................................ 34 
IV.  Evidentiary Issues ......................................................... 44 
A.  Standard of Review ....................................................... 44 
B.  Challenges to Admitted Evidence ................................... 45 
1.  Preservation and Applicable Law ................................... 45 
2.  Gun-Related Evidence ................................................... 50 
a.  Reputation for Carrying Guns ....................................... 50 
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b.  Trading Drugs for Guns ................................................ 51 
3.  Prior Homicide .............................................................. 52 
a.  Relevant Background .................................................... 52 
b.  Analysis ........................................................................ 59 
i.  Rule 404(a)(2), Rule 405(a), and Rule 405(b) Testimony . 59 
ii.  Rule 404(b) ................................................................... 61 
4.  Gang Membership ......................................................... 64 
a.  Relevant Background .................................................... 64 
b.  Analysis ........................................................................ 66 
5.  Drug-Related Evidence .................................................. 69 
6.  Reversible Error ............................................................ 71 
C.  Other Evidentiary Issues ............................................... 72 
1.  Preservation .................................................................. 73 
2.  Law and Analysis .......................................................... 73 
V.  Remaining Issues Raised on Appeal ............................... 78 
VI.  Conclusion .................................................................... 79 

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¶ 1 Tommy Mitchell appeals his convictions for felony murder,
burglary, theft, and attempted robbery. We conclude that because
the trial judge’s pretrial comments demonstrated an appearance of
partiality, the judge erred in denying Mitchell’s motion to recuse.
Additionally, significant bad character evidence was erroneously
admitted. For both of these reasons, we reverse and remand for a
new trial conducted before a different judge.
I. Background
¶ 2 The evidence at the trial discloses that a nineteen-year-old
Mitchell, a small-time drug dealer, had fronted the victim, Joey
Benavidez, $780 to purchase marijuana. Mitchell went to
Benavidez’s house in Ignacio, Colorado, to wait for the marijuana to
be delivered by third parties. What exactly happened inside the
house is disputed.
¶ 3 Mitchell testified that Benavidez pulled a butterfly knife,1
threatening his companion, Elijah Anglin, and in defense of Anglin,

1 Defense counsel described a butterfly knife at trial as “an illegal
weapon in Colorado . . . because it’s a loose flying blade that spins
around. . . . And the two handles lock down . . . and then it turns
into a stiff blade. They’re illegal because you can conceal them and
open them real fast and go after somebody.”
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Mitchell shot Benavidez. Benavidez was ultimately shot to death in
the driveway by Mitchell and Anglin.
¶ 4 Mitchell was charged with numerous crimes. As relevant here,
the jury convicted him of felony murder (attempted robbery
predicate), felony murder (burglary predicate), second degree
murder, two counts of burglary (one predicated on robbery, one
predicated on theft), theft of property under $500, and attempted
robbery. The judge merged the felony murder (burglary predicate)
and second degree murder convictions into the felony murder
(attempted robbery predicate) conviction. Mitchell was sentenced to
life without the possibility of parole.
II. Sufficiency of the Evidence
¶ 5 Mitchell argues that the evidence was insufficient to support
his convictions for count 2 felony murder (attempted robbery
predicate), count 3 felony murder (burglary predicate), count 7
burglary (robbery predicate), count 16 burglary (theft predicate),
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count 19 theft of property under $500, and count 25 attempted
robbery.2
A. Preservation and Standard of Review
¶ 6 The parties agree Mitchell preserved his sufficiency claims in
his motion for judgment of acquittal on all counts.
¶ 7 “We review de novo whether the evidence is sufficient to
support a conviction.” People v. Randell, 2012 COA 108, ¶ 29. In
evaluating the sufficiency of the evidence, we must determine
whether a rational fact finder might accept the evidence, taken as a
whole and in the light most favorable to the prosecution, as
sufficient to support a finding of the defendant’s guilt beyond a

2 On remand, Mitchell cannot be retried on any charges of which he
was acquitted. § 18-1-301(1)(a), C.R.S. 2017. While Mitchell does
not specifically list second degree murder (count 1) as a count with
insufficient evidence to support the conviction, section IV.C of
Mitchell’s opening brief argues there was insufficient evidence to
support count 1. Because there is sufficient evidence on this count,
Mitchell may be retried for it. But, the jury instructions given on
remand must follow the supreme court’s guidance in Castillo v.
People, 2018 CO 62, and avoid an appearance of shifting the
burden of proof from the prosecution to Mitchell, see People v.
Monroe, 2018 COA 110, ¶ 29 (Reversal was required where “[a]
reasonable jury would be left with the erroneous understanding
that while it would not be permitted to impose an obligation or duty
to retreat, it could find that a reasonable person would have done
so.”). Thus, we do not further address Mitchell’s challenge to jury
instruction 16.
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reasonable doubt. People v. Sprouse, 983 P.2d 771, 777 (Colo.
1999); Randell, ¶ 31. We may consider direct and circumstantial
evidence. People v. Duran, 272 P.3d 1084, 1090 (Colo. App. 2011).
¶ 8 Our inquiry is also guided by five well-established principles:
(1) we give the prosecution the benefit of every reasonable inference
that might fairly be drawn from the evidence; (2) the credibility of
witnesses is solely within the jury’s province; (3) we may not serve
as a thirteenth juror to determine the weight of evidence; (4) a
modicum of relevant evidence will not rationally support a
conviction beyond a reasonable doubt; and (5) verdicts in criminal
cases may not be based on guessing, speculation, or conjecture.
Sprouse, 983 P.2d at 778; Randell, ¶ 31.
B. Attempted Robbery
¶ 9 The prosecution’s theory at trial was that Mitchell orchestrated
a plan and recruited friends to accompany him to Benavidez’s
house. The plan was to retrieve his $780 or the drugs Benavidez
owed him and take Benavidez’s phone, which would allow Mitchell
access to Benavidez’s drug sources. Mitchell testified there was no
such plan.
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1. Relevant Background
¶ 10 At the 2014 trial, Anglin, the codefendant who joined Mitchell
inside Benavidez’s house, testified on direct examination that
 on the way to Benavidez’s house, Mitchell said that if
Benavidez “didn’t have his money or his weed, he was
going to jack him”;
 Anglin and Mitchell always took guns to drug deals;
 Anglin and Mitchell discussed the possibility of taking
Benavidez’s phone on the drive to Benavidez’s house; and
 after Benavidez had been shot, Anglin took Benavidez’s
phone for Mitchell so Mitchell could access Benavidez’s
drug “connects.”
¶ 11 On cross-examination, Anglin testified that the plan was to
retrieve Mitchell’s money or the marijuana he purchased from
Benavidez. He claimed that there was not a definite plan to steal
anything from Benavidez.
¶ 12 Jeremiah Mason was in a second car that followed Mitchell
and Anglin’s car to Benavidez’s house. Mason testified that when
he had accompanied Mitchell to previous drug deals at Benavidez’s
house, they had taken a single vehicle, not a backup car with extra
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people. Mason also stated that while he was not expressly
instructed to be a lookout, he watched the house with a pair of
binoculars while Mitchell and Anglin were inside.
¶ 13 Mason further testified:
 “[I thought we’d] get some weed and go shooting;3
 he could not initially recall stating, in his police
interview, that Mitchell told him, “I’m going to go to
Ignacio and fucking get some weed [if] this guy don’t give
my motherfucking weed or my money, I’m going to
probably have to kill the motherfucker and all that shit”;
but
 he believed Mitchell’s statements were a joke and in
response to the prosecutor’s question, “Does it appear to
you now that [Mitchell] actually had this planned out?”
Mason responded, “I can’t answer, I don’t know.”
¶ 14 Armando Yazzie, who was also in the second car, testified that

3 Mason clarified in response to a jury question that “go shooting” to
him meant “we [were] going to go out shooting and go fire off some
rounds” in the countryside.
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 Mitchell brought two cars with multiple people to the
drug deal at Benavidez’s house;
 Yazzie assumed Mitchell brought guns because
“[Mitchell] was planning on threatening [Benavidez]”
although Mitchell did not actually say that;
 “[a]t the gas station, there was talk that [Mitchell] was
going to go collect money” that Benavidez owed Mitchell;
and
 although Yazzie was not told to be a lookout, he had a
feeling that was the case because this was not how
Mitchell had conducted prior drug deals.
¶ 15 Shanice Smith, Mitchell’s cousin, testified that she rode in the
second car and brought the AK-47 Mitchell had instructed her to
buy. Yazzie (not Smith) testified that Mitchell had arranged with
Smith that he would signal her if he needed her to approach the
house with the AK-47.
¶ 16 Finally, Mitchell’s then girlfriend, R.S. — a juvenile — testified
that she had arranged an alibi for Mitchell before he went to
Benavidez’s house.
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