People v. Black.

2022 COA 127. No. 19CA0395. First Degree Murder—Conspiracy to Commit First Degree Murder—Venue—Severance—Right to Public Trial—Trivial Courtroom Closure.

November 3, 2022

The victim was a traveling mechanic who fixed a car for an acquaintance of Black’s mother at a Denver motel. The victim saw evidence in the motel room that Black and several others had robbed a medical marijuana dispensary, and he reported what he had seen to police. Officers later arrested Black and several others. The victim was subsequently shot to death in Denver. In a joint trial with his mother, Black was convicted of first degree murder and conspiracy to commit first degree murder.

On appeal, Black argued that his convictions must be vacated because Arapahoe County was not the proper venue for his trial. CRS § 18-1-202(1) provides that a case must be tried either in the county where the offense was committed or in any other county in which an act in furtherance of the offense occurred. Here, Black had a discussion in Arapahoe County with his mother, in the presence of the acquaintance, about whether and when to kill the victim. Therefore, venue was proper in Arapahoe County because an act in furtherance of the murder occurred there.

Black also argued that the Eighteenth Judicial District Attorney lacked authority to charge him in the victim’s death. As discussed above, because venue was proper in the Eighteenth Judicial District, the offenses were triable there, and the Eighteenth Judicial District Attorney’s Office had authority to pursue the charges there.

Black further contended that the district court violated his constitutional right to a public trial when it excluded the public from the courtroom during jury selection. A court may close the courtroom completely or partially, and some closures are so trivial that they do not rise to the level of a constitutional violation. Courts consider the totality of the circumstances surrounding the closure to determine whether it was so trivial that it did not violate the defendant’s public trial right. Here, there were 50 potential jurors in a small courtroom, and the district court noted that a member of the public was seated in the courtroom. Because the court needed every available chair to seat the venire and out of concerns for fire safety, it asked the person to leave until a seat became available. The courtroom was closed only until the court dismissed the first potential juror as ineligible to serve on the jury, and the closed proceeding took place on the record. Under these circumstances, the closure was so trivial that it did not implicate Black’s public trial right.

Lastly, Black contended that the district court reversibly erred by not severing his case from his mother’s. Black’s mother was charged in connection with the dispensary robbery, and although the district court ultimately dismissed Black’s charges related to that robbery, the robbery was part of the criminal episode to murder the victim in order to hide the robbery. Black did not argue that any evidence introduced at the joint trial was inadmissible against him, so he was not entitled to severance as a matter of right under Crim. P. 14, and the district court had discretion to grant the motion for severance. Here, Black was not prejudiced by the trial evidence. Accordingly, the district court did not abuse its discretion in refusing to sever the trials.

The judgment of conviction was affirmed.