Peo v. Baldwin

22CA0180 Peo v Baldwin 01-02-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA0180
City and County of Denver District Court No. 21CR1526
Honorable Martin F. Egelhoff, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Gary L. Baldwin,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division VI
Opinion by JUDGE HAWTHORNE*
Welling and Brown, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced January 2, 2025

Philip J. Weiser, Attorney General, Austin R. Johnston, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Barbara A. Snow, Alternate Defense Counsel, Longmont, Colorado for
Defendant-Appellant

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2024.
¶1 Defendant, Gary L. Baldwin, appeals the judgment of

conviction entered on a jury verdict finding him guilty of second

degree murder. Baldwin contends that the trial court erred by

(1) responding to a jury question without first asking the jury if it

was deadlocked and (2) denying his motion to suppress statements

he made and evidence obtained following his arrest. We disagree

with both of Baldwin’s contentions and, therefore, affirm.

I. Background

¶2 A video recording from a High Activity Location Observation

(HALO) camera captured the shooting death of a victim in a park in

downtown Denver. The HALO video showed a black male fleeing

the scene “wearing a red sweatshirt with a white hood, jeans[,]

black shoes and a beanie.” A detective in an unmarked car saw

someone matching that description walking away from the location

where the shooting happened. The detective followed the suspect

and provided information on his movements to other police officers.

He also saw the suspect remove and dispose of the sweatshirt.

Uniformed police officers found the suspect, later identified as

Baldwin, hiding in a stairwell near where the detective had last seen

him and arrested him. The police later recovered the sweatshirt

1
and discovered a gun wrapped in it. The prosecution charged

Baldwin with first degree murder.

¶3 Before his trial, Baldwin moved to suppress the statements

and evidence obtained following his detention and arrest. The court

denied his motion, finding that the police had a reasonable

suspicion to stop him and probable cause to arrest him. Following

a five-day trial, the jury found Baldwin guilty of the lesser included

offense of second degree murder.

II. The Trial Court Properly Answered the Jury’s Question
During Deliberations

¶4 Baldwin contends the trial court committed reversible error by

responding to the jury’s question about returning a guilty verdict on

a lesser included offense when it had not unanimously agreed on a

greater offense without first asking the jury if it was deadlocked. He

argues that the court’s response was premature and potentially

coerced the jury into finding him guilty of the greater offense. We

perceive no error in the trial court’s response to the jury’s question.

A. Applicable Law and Standard of Review

¶5 Section 18-1-408(8), C.R.S. 2024, provides that without the

prosecution’s consent, “no jury shall be instructed to return a guilty

2
verdict on a lesser offense if any juror remains convinced by the

facts and law that the defendant is guilty of a greater offense

submitted for the jury’s consideration, the retrial of which would be

barred by conviction of the lesser offense.”

¶6 When responding to a jury question about a defendant’s

degree of guilt, the trial court may properly instruct the jury that

“[i]f any juror remains convinced by the facts and law that the

defendant is guilty of a greater offense,” it should continue to

deliberate if there is a likelihood of progress toward a unanimous

verdict on any charge. People v. Richardson, 184 P.3d 755, 762

(Colo. 2008).

¶7 Whether to provide the jury with additional written

instructions properly stating the law is a matter committed to the

trial court’s sound discretion. People v. Alvarado, 284 P.3d 99, 101

(Colo. App. 2011).

B. Additional Facts

¶8 Before the jury began deliberating, the trial court instructed it

on first degree murder and the lesser included offenses of second

degree murder and reckless manslaughter.

3
¶9 On the second day of its deliberations, the jury sent the

following question to the court:

If we are unanimous that the prosecution has
proved beyond a reasonable doubt the
defendant is guilty of one of the offenses and
we are not unanimous and unlikely to be
unanimous regarding a greater offense, are we
required to return a guilty verdict for the
offense on which we are unanimous?

¶ 10 The court told the parties, “[t]his is an 18-1-408(8) question

issue” and then asked for their positions on how it should instruct

the jury. The prosecution said it did not consent to the court

instructing the jury to render a verdict on the lesser offense to

which it had agreed and suggested that the court instruct the jurors

to continue deliberating on any of the charges that they were

considering until they were unanimous. Baldwin objected to any

answer that “more or less [would] likely . . . implicate what

influences the jury’s decision.”

¶ 11 The court reiterated that the issue raised came under section

18-1-408(8) and proposed to tell the jury: “If any juror remains

convinced by the facts and law that the defendant is guilty of a

greater offense, then you may not return a verdict on a lesser-

4
included offense. You should continue to deliberate if there is a

likelihood of progress toward a unanimous verdict.”

¶ 12 The prosecution agreed to the court’s proposal. Baldwin,

however, objected to including the language telling the jury that it

“may not return a verdict on a lesser-included offense” because he

believed it would “appear to maybe insinuate to return a verdict of a

higher” offense. The court disagreed with Baldwin because the

language informing the jury that it could not return a verdict on a

lesser included offense was required by section 18-1-408(8). The

court then instructed the jury as it had previously proposed.

¶ 13 Later that day, the jury returned a verdict finding Baldwin

guilty of second degree murder.

C. Preservation

¶ 14 The People assert that we should decline to address Baldwin’s

contention because he either waived or invited any error related to

the trial court’s handling of the jury’s question. We disagree.

¶ 15 Both of those doctrines preclude review of an alleged error

based on an affirmative act of the party raising the issue on appeal.

See Phillips v. People, 2019 CO 72, ¶ 16 (waiver requires an

“intentional relinquishment of a known right or privilege.”); People v.

5
Zapata, 779 P.2d 1307, 1309 (Colo. 1989) (the doctrine of invited

error applies when a party has invited or injected the error into the

case).

¶ 16 Under the circumstances here, we are not persuaded that

Baldwin intentionally relinquished a known right or injected the

alleged error into the case by raising only a limited objection to the

court’s proposed response. Thus, we decline to apply either waiver

or invited error to Baldwin’s appellate claim.

D. Analysis

¶ 17 The jury’s question in this case referred to a disagreement

about the degree of Baldwin’s guilt. As the Richardson court noted,

“section 18-1-408(8) expressly prohibits the trial court from

alleviating jury deadlock over the degree of guilt by instructing the

jury, without the prosecution’s consent, to return a guilty verdict on

a lesser-included offense” if any juror remains convinced that the

defendant is guilty of a greater offense. Id. at 761.

¶ 18 Consistent with section 18-1-408(8) and the supreme court’s

guidance in Richardson, the trial court properly instructed the jury

to continue deliberating if there was a likelihood of progress toward

a unanimous verdict. See id. at 761-62.

6
¶ 19 We reject Baldwin’s argument that the trial court erred

because it did not ask the jury whether it was deadlocked before

responding to the jury’s question. The supreme court in Richardson

approved of the trial court giving essentially the same instruction as

was given here without requiring the court to first inquire about

whether the jury was deadlocked. Thus, we perceive no error in the

court’s providing the instruction without first inquiring about

whether the jury was deadlocked.

¶ 20 Finally, the court’s response did not require the jury to reach a

verdict, nor did it suggest any juror should compromise their

honestly held beliefs. Consistent with section 18-1-408(8), the

court merely informed the jury that it could not return a guilty

verdict on a lesser included offense if any juror was convinced that

the defendant was guilty of a greater offense and that the jury

“should continue to deliberate if there is a likelihood of progress

toward a unanimous verdict.”1

1 We would also note that it is not clear from the record that

Baldwin was prejudiced at all by the jury reaching its verdict after
the court’s supplemental instruction. This is because nothing in
the jury’s question — or any other part of the record — reveals
which of the offenses it had agreed on. Rather, the jury told the

7
III. No Error in Denying Baldwin’s Suppression Motion

¶ 21 Baldwin contends that the trial court erred by denying his

motion to suppress evidence obtained and statements he made

during his detention and arrest. Specifically, he argues that the

police did not have a reasonable suspicion to detain him or

probable cause to arrest him, and therefore, the stop and arrest

violated his fourth amendment right to be free from unlawful

searches and seizures. We disagree.

A. Standard of Review and Applicable Law

¶ 22 A trial court’s suppression order presents mixed questions of

fact and law. People v. Chavez-Barragan, 2016 CO 66, ¶ 18. We

accept the court’s findings of historic fact if competent evidence

supports those findings, but we assess the legal significance of

those facts de novo. People v. Dacus, 2024 CO 51, ¶ 23; see also

People v. Glick, 250 P.3d 578, 582 (Colo. 2011) (“We will not

court that it was unanimous as to Baldwin’s guilt on a lesser
offense but was not unanimous on his guilt regarding a greater
offense. So it is just as likely that the jury had already agreed on
second degree murder and could not reach a unanimous agreement
on first degree murder, as the scenario that Baldwin posits on
appeal. In any event, because we conclude that the court did not
err in giving the instruction it gave, we do not need to consider the
issue of prejudice.

8
substitute our own judgment for that of the trial court unless the

trial court’s findings are clearly erroneous or not supported by the

record.”). In conducting that review, we look solely to the

suppression hearing record. Dacus, ¶ 24.

¶ 23 The Fourth Amendment of the United States Constitution and

Article II, section 7 of the Colorado Constitution protect individuals

from unreasonable searches and seizures. U.S. Const. amend. IV;

Colo. Const. art. 2, § 7; see also People v. Brown, 217 P.3d 1252,

1255-56 (Colo. 2009). Investigatory stops and arrests are seizures

that implicate Fourth Amendment protections. People v. Martinez,

200 P.3d 1053, 1057 (Colo. 2009). Investigatory stops require a

reasonable articulable suspicion to believe that the detainee is

committing, has committed, or is about to commit a crime; but an

arrest must be supported by probable cause to believe that the

defendant committed, is committing, or is about to commit a crime.

Dacus, ¶ 26; People v. Fields, 2018 CO 2, ¶ 12.

¶ 24 Probable cause to arrest exists when the facts and

circumstances known to the arresting officer at the time of the

arrest are sufficient to warrant the belief by a reasonable and

prudent person, in light of that person’s training and experience,

9
that an offense has been committed and the arrestee committed it.

People v. Thompson, 793 P.2d 1173, 1175 (Colo. 1990). Evidence

seized as the result of a warrantless arrest is only admissible at trial

if probable cause supported the arrest. People v. Castaneda, 249

P.3d 1119, 1122 (Colo. 2011).

¶ 25 Whether an officer has probable cause to arrest a suspect is a

legal question evaluated by considering the totality of the

circumstances at the time of the arrest. Id. at 1122. Under the

fellow officer rule, the information “that the police possess as a

whole” may be imputed to an individual officer. Grassi v. People,

2014 CO 12, ¶ 13. There are two conditions that must be met for

the fellow officer rule to apply: (1) the officer must be acting

pursuant to a coordinated investigation; and (2) at the time of the

detention or arrest, the police as a whole must possess sufficient

information to establish probable cause. Id. at ¶ 21.

B. Analysis

¶ 26 Baldwin contends that the arresting officer did not have one

concrete description of the suspect from any witness, and thus, did

not have either a reasonable suspicion to stop him or probable

cause to arrest him. We disagree.

10
¶ 27 Given that Baldwin’s stop and arrest occurred nearly

simultaneously, and because probable cause is a more demanding

standard than reasonable suspicion, we focus our attention on

whether the arresting officer had probable cause to arrest Baldwin.

¶ 28 At the suppression hearing, the plain-clothed detective who

initially saw Baldwin in the vicinity of the shooting testified as

follows:

• He learned from police dispatch that there had been a

shooting in the city park a few blocks from where he was

and based on the HALO video, the suspect was “a male

wearing a red sweatshirt with a white hood, blue jeans,

black shoes, and a black beanie.”

• Less than five minutes after hearing that description, he

spotted Baldwin a few blocks away from the park and

noticed that he fit the suspect’s description.

• He then noticed that Baldwin was (1) “very hyper vigilant

and was looking around in all directions as if performing

some sort of counter-surveillance”; and (2) clutching

“what looked like a large, heavy object in his waistband

11
concealed beneath his clothing, and he kind of slowly

walked and favored that right side.”

• In his twelve years of police experience, other people he

had encountered displaying those characteristics were

later found to be armed with a handgun.

• He continued to follow Baldwin as Baldwin weaved up

and down streets and alleys and jumped over fences, and

he radioed his observations and Baldwin’s movements to

the other officers in the area.

• Because he was in an unmarked car and not wearing a

uniform, he did not contact Baldwin out of concern that a

shoot-out might ensue and officers coming onto the

scene would not know he was a police officer.

• He saw Baldwin take the sweatshirt off and throw it

down, and, less than a minute later, a uniformed police

officer contacted Baldwin and took him into custody.

• He saw a gun removed from the discarded sweatshirt

when it was recovered.

¶ 29 The officer who initiated Baldwin’s detention and placed him

in custody testified that:

12
• He was on patrol in the area of the shooting when he

heard dispatch describe the suspect as a Hispanic or

black male in his twenties, running southbound, and

wearing a red sweatshirt, jeans, and black shoes.

• He heard the detective’s statements relayed over the

radio concerning Baldwin’s location and his movements.

• When he spotted Baldwin walking, he announced that he

was a police officer and told Baldwin to stop. Baldwin,

however, began running and removed and discarded his

sweatshirt while running.

• Through police communications, he eventually located

Baldwin in a stairwell on the outside of a house, placed

him in handcuffs, and put him in a police squad car.

¶ 30 The trial court found that the information available to the

police as a whole was enough to provide them with a reasonable

suspicion to stop Baldwin and probable cause to arrest him. We

perceive no error in the court’s decision.

¶ 31 The evidence provided at the suppression hearing through the

detective’s and officer’s testimony established that when Baldwin

was apprehended and arrested, the police knew: (1) Baldwin

13
matched the shooter’s description and was seen wearing the same

clothing as the shooter in the HALO video; (2) Baldwin was seen

going up and down the streets and alleys and jumping fences in the

area of the shooting while the police were attempting to locate him;

(3) while walking, Baldwin was holding something to his side in a

manner that suggested he had a weapon; (4) Baldwin removed and

discarded the red hoodie prior to being apprehended; (5) Baldwin

refused to stop when the officer told him to and ran away instead;

and (6) a gun was found in the red hoodie Baldwin discarded.

Based on that evidence, we conclude that the information known to

the police as a whole and imputed to the detaining police officer

under the fellow officer rule was sufficient to establish probable

cause for Baldwin’s arrest because it supported a reasonable belief

that Baldwin had committed the shooting in the park. See

Thompson, 793 P.2d at 1175.

IV. Constitutionality of Crim. P. 5

¶ 32 Finally, Baldwin asserts that Crim. P. 5 is unconstitutional,

both on its face and as applied to him. Specifically, he argues that

(1) the rule does not establish a timeline for requiring a judicial

determination of probable cause consistent with federal law; and

14
(2) he was detained for “a number of days before a documented

judicial determination of probable cause, in what was a warrantless

arrest case, took place.”

¶ 33 Initially, we note that Baldwin did not raise this constitutional

challenge to Crim. P. 5 in the district court. Therefore, we decline

to address his as-applied challenge. See People v. Mountjoy, 2016

COA 86, ¶ 36 (noting that appellate courts typically decline to

address unpreserved as-applied constitutional challenges); see also

People v. Thompson, 2017 COA 56, ¶ 199 (declining to consider

unpreserved as-applied challenges because factual record not

developed in the district court).

¶ 34 As for his claim that Crim. P. 5 is unconstitutional on its face,

Baldwin baldly asserts that the rule is unconstitutional because it

fails to establish timelines for requiring probable cause

determinations consistent with federal law. Baldwin, however, does

not develop his “on-its-face” argument or even identify the

particular constitutional provision he claims the rule violates.

Therefore, we reject this claim because it is bare and conclusory.

See People v. Lientz, 2012 COA 118, ¶ 30 (rejecting a conclusory

claim because parties must present reasoned analysis for their

15
appellate assertions and not rely on conclusory allegations); see

also People v. Simpson, 93 P.3d 551, 555 (Colo. App. 2003)

(declining to address a bald legal proposition presented without

argument or development).

V. Disposition

¶ 35 We affirm the judgment of conviction.

JUDGE WELLING and JUDGE BROWN concur.

16