Free Notice (Other) - District Court of Colorado - Colorado

Case 1:04-cv-01235-WYD

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COLORADO COURT OF APPEALS ________________________________________________________________________ Court of Appeals No.: 04CA1682 Jefferson County District Court Nos. 95CR2377, 96CR617 & 99CR1378 Honorable Jane A. Tidball, Judge ________________________________________________________________________ The People of the State of Colorado, Plaintiff- Appellee, v. Jason A. Cappelli, Defendant- Appellant. ________________________________________________________________________ ORDER AFFIRMED Division VI Opinion by: JUDGE J. JONES Webb and Carparelli, JJ., concur NOT PUBLISHED PURSUANT TO C.A.R. 35(f) Announced: October 5, 2006 ________________________________________________________________________ John W. Suthers, Attorney General, Matthew D. Grove, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee Paul Grant, Centennial, Colorado, for Defendant-Appellant

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Defendant, Jason A. Cappelli, appeals the trial court' order s denying his motion for postconviction relief under Crim. P. 35(c). We affirm. I. Background On May 24, 1999, defendant drove to a Blockbuster Video store in Lakewood, Colorado, and while in the store had a verbal confrontation with a store employee. The store employee asked defendant to leave the store. Defendant got into his truck, but had difficulty backing out of his parking space because a car was in his way. Defendant honked his horn and began yelling at the driver of the other vehicle. Both drivers got out of their vehicles. Defendant ran up to the other driver and kicked him in the chest several times, knocking him off his feet and back into the driver' side s doorway of his vehicle. When the passenger in the victim' car got s out to help the victim, defendant tried to kick him, but missed. Defendant then chased both the victim and the passenger around the victim' car. s At that point, a store employee, who had followed defendant out of the store to make sure that he left, attempted to intervene. Defendant threatened her, so she ran back into the store to call the
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police. Defendant got back into his truck and parked it next to the victim' car. He got out of his truck and tried to punch the s passenger of the other car, retrieved a bottle of motor oil from his truck, and poured oil over the exterior and throughout the interior of the victim' car. Defendant then drove away. s The People filed an information charging defendant with criminal mischief (a class four felony), third-degree assault (a class one misdemeanor), attempted third-degree assault (a class two misdemeanor), and menacing (a class three misdemeanor). At trial, the driver/victim testified, as did two of the store employees, both of whom had witnessed the incident. Defendant' s theory of defense was that he had acted in self-defense. In essence, defendant contended that the driver/victim was lying about which of them was the instigator. In attacking the victim' credibility, s defendant' counsel elicited testimony from the victim that he was s on probation for sexual assault on a child, his probation had been extended, and one of the terms of his probation was that he not commit any criminal offenses. Defendant' theory was that the s victim had been at the Blockbuster Video store to peddle wares outside the store, which was illegal. The victim was lying about
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why he was at the store so as to avoid the possible revocation of his probation. Since the victim was lying about that fact, the jury should disbelieve him as to which of them had been the instigator. Defendant called the victim' probation officer, Cheryl Boller, s as a witness. Defendant' counsel sought to ask Boller about two s charges filed against the victim for street peddling after the date of the incident. The trial court sustained the prosecutor' objection to s that question on the basis that evidence of the victim' conduct s after May 24, 1999 was not relevant. On cross-examination, the prosecutor and Boller had the following exchange: Q . . . During the entire time of [the victim' probation, he has been, for want of a s] better term, [an] exemplary probationer? A Overall compliant. ... Q Since August of ' at least through 95, March or May the 24th of 1999, he had been fully compliant with all the terms and conditions and things that you require that he do; is that not true? A That' correct. s Q You have not seen any reason since that period of time to revoke his probation; is that not true?
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A That' correct. s Defendant' counsel asked to approach the bench. Defendant' s s counsel told the court that Boller' testimony was untrue because s the victim had been charged with street peddling. The court ruled that while defendant' counsel would not be permitted to ask Boller s about the victim' alleged crimes, he could ask Boller questions to s clarify what time period Boller had been referring to when she testified that the victim was in compliance with the terms of his probation. On redirect, defendant' counsel asked Boller: " s [W]hen you indicated that [the victim] had been an exemplary probationer, you were referring from the commencement of probation up until May 24 of 1999, correct?" Boller responded: " Yes, I have not supervised him, but as far as what I can see from his records, he hasn' had t any violations." The jury convicted defendant of all four charges. The trial court sentenced defendant to concurrent terms of imprisonment of twelve years, two years, one year, and six months.

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Defendant appealed his convictions. A division of this court affirmed defendant' convictions. People v. Cappelli, (Colo. App. No. s 00CA0808, Oct. 24, 2002) (not published pursuant to C.A.R. 35(f)). Defendant filed a petition for a writ of certiorari with the supreme court, which the court denied on March 17, 2003. Defendant filed a timely postconviction motion pursuant to Crim. P. 35(c) in the trial court on June 15, 2004. By order dated August 16, 2004, the trial court denied that motion. Defendant appeals that order. II. Analysis Defendant claims initially that Boller committed perjury when she testified that she had not seen any reason to seek to revoke the victim' probation because she knew at the time she testified that a s probation revocation proceeding was actually pending against the victim at the time of the trial. According to defendant, his constitutional right to confront the witnesses against him was infringed by virtue of the trial court' decision to prohibit s questioning of Boller about events occurring after the date of the incident because certain such events, including the fact the victim was facing the possible revocation of his probation, gave the victim
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a motive to curry favor with the prosecution by tailoring his testimony to buttress the prosecution' case against defendant. s At the outset, we reject the premise of defendant' argument s that Boller committed perjury. In denying defendant' Crim. P. s 35(c) motion, the trial court, who also presided over defendant' s trial, ruled that Boller had not committed perjury. The record contains substantial evidence supporting the trial court' s conclusion that, when Boller' testimony is viewed as a whole, and s in context, Boller meant that she had no reason to seek to revoke the victim' probation based on matters occurring as of the date of s the incident for which defendant was charged, May 24, 1999. We decline defendant' invitation for us to substitute our judgment on s that factual question for that of the trial court. See People v. Starkweather, ___ P.3d ___ (Colo. App. No. 05CA0110, July 13, 2006); People v. Perry, 68 P.3d 472, 477 (Colo. App. 2002). Thus, stripped of this " perjury"veneer, it is clear that defendant' argument is simply that evidence of events occurring s after May 24, 1999 potentially impacting the victim' probation s status were relevant, and it was constitutional error for the trial court to preclude such evidence. This precise argument was raised
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by defendant on direct appeal and rejected by a division of this court. See Cappelli, supra, slip op. at 4-6. Indeed, defendant invoked his rights to confront the witnesses against him, to due process, and to present a defense in the context of that argument on direct appeal. A defendant cannot use a Crim. P. 35(c) proceeding to relitigate a matter fully and finally resolved in an earlier appeal. DePineda v. Price, 915 P.2d 1278, 1281 (Colo. 1996); People v. Rodriguez, 914 P.2d 230, 249 (Colo. 1996); People v. Martinez, 36 P.3d 201, 205 (Colo. App. 2001). Accordingly, we will not revisit this claim. Defendant nevertheless contends that because his claim in this proceeding is based on new evidence ­ the discovery that a probation revocation action was filed after the date of the incident ­ he is not procedurally barred from raising it. We are unpersuaded. On direct appeal, defendant argued that he should have been allowed to present evidence that a week after the incident the victim was charged with street peddling, which placed him at risk of having his probation revoked, and therefore gave him a motive to lie. The new fact asserted by defendant in this Crim. P. 35(c)
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proceeding is offered for the very same purpose. Thus, the division' conclusion on direct appeal that the trial court did not s abuse its discretion in excluding such evidence ­ to the extent it related to events after May 24, 1999 ­ logically applies to the new fact now raised by defendant. In effect, defendant merely disagrees with the direct appeal division' resolution of the issue of s evidentiary relevance, and seeks to relitigate that issue. He may not do so. Defendant also claims that his right to confront the witnesses against him was infringed by virtue of the trial court' decision s denying his motion to compel the prosecution to turn over the victim' probation and court files. s Again, defendant raised this precise argument on direct appeal, and it was rejected. See Cappelli, supra, slip op. at 1-3. Accordingly, he may not reraise it in a Crim. P. 35(c) proceeding. Rodriguez, supra, 914 P.2d at 249. III. Conclusion For the foregoing reasons, we affirm the order of the trial court. JUDGE WEBB and JUDGE CARPARELLI concur.
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