People v. Walker.

2022 COA 15. No. 18CA0963. Outrageous Government Conduct—Out-of-Court Identification—Prosecutorial Misconduct—Constitutional Law—Cruel and Unusual Punishment—Habitual Criminal—Proportionality Review.

February 10, 2022

C.O. called 911 to report that he was observing a man taking a bicycle from his neighbor’s garage. Police detained defendant in a nearby alley, and C.O. identified him as the person who took the bicycle. A jury found defendant guilty of second degree burglary (a class 4 felony). The trial court adjudicated defendant a habitual criminal based on his prior felony convictions and sentenced him to 24 years in prison in accordance with the statute.

On appeal, defendant contended that the trial court erred by denying his motion to dismiss the charges on the grounds of outrageous governmental conduct, based on the prosecutor’s decision to request jailhouse recordings of defendant’s phone conversations with an attorney. Here, the trial court granted defendant’s motion to suppress the calls, and the record does not show that the calls had any bearing on the case, so the trial court did not err by denying defendant’s motion.

Defendant also contended that the trial court erred by declining to suppress evidence of C.O.’s out-of-court identification of him. Because the prosecution presented overwhelming evidence that defendant was the person who took the bicycle from the garage, and defendant’s identity as that person was not seriously contested at trial, any error in admitting the identification was harmless beyond a reasonable doubt.

Defendant also argued that the judgment must be reversed because the prosecutor engaged in misconduct during closing and rebuttal arguments. Here, some of the prosecutor’s arguments did not constitute misconduct because they were supported by the record or made in response to defense counsel’s arguments. Assuming that other arguments were improper, they were relatively brief and confined to a small part of the prosecutor’s closing. Therefore, the alleged improprieties were not so egregious as to warrant reversal.

Lastly, defendant argued that his prison sentence was grossly disproportionate and thus constituted cruel and unusual punishment under the US and Colorado Constitutions. Defendant maintained that the court erred by failing to conclude that a comparison of his triggering and predicate offenses to his sentence raises an inference of gross disproportionality. Defendant did not raise this claim in the trial court, but the Court of Appeals concluded that plain error review applies to an unpreserved contention that a defendant’s sentence is unconstitutionally disproportionate. Here, the prosecution proved five habitual criminal counts against defendant, which established that he had six prior felony convictions. At the time of defendant’s habitual criminal adjudication, the trial court could have reasonably concluded that he had been convicted of at least three per se grave or serious offenses: the triggering offense (second degree burglary) and two predicate offenses (distribution of a controlled substance and failure to register as a sex offender). In addition, defendant had three other felonies (attempted pandering of a child, second degree assault with a deadly weapon, and attempted second degree sexual assault), and his sentence was subject to parole. Further, because defendant had at least three prior felony convictions, the trial court was required to sentence him to four times the maximum term in the presumptive range for the second degree burglary offense, for a total of 24 years, and any review of the penalty as compared to the gravity or seriousness of the offenses is circumscribed because the legislature’s establishment of the harshness of the penalty is entitled to great deference. Accordingly, the trial court did not commit obvious error.

The judgment and sentence were affirmed.