COLORADO COURT OF APPEALS                                          2017COA50


Court of Appeals No. 14CA2417
El Paso County District Court Nos. 13CR3575, 13CR3586 & 13CR3600
Honorable Robert L. Lowrey, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Brock Edward Butson,

Defendant-Appellant.


                            JUDGMENT AFFIRMED

                                   Division VII
                           Opinion by JUDGE HARRIS
                       Lichtenstein and Vogt*, JJ., concur

                           Announced April 20, 2017


Cynthia H. Coffman, Attorney General, Melissa D. Allen, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee

Kathy Goudy, Alternate Defense Counsel, Carbondale, 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. 2016.
¶1    CRE 408 bars the admission at trial of settlement discussions,

 or offers to compromise a claim, when the evidence is offered to

 prove liability for, invalidity of, or amount of a disputed claim.

¶2    Defendant Brock Edward Butson was convicted of multiple

 counts of bank robbery and conspiracy to commit bank robbery.

 On appeal, he contends that his statements to police during a

 custodial interrogation constituted settlement negotiations, or an

 offer to compromise a claim. Thus, he argues, pursuant to Rule

 408, his statements should have been excluded at trial.

¶3    We conclude that, subject to certain exceptions, Rule 408 bars

 the admission in a criminal proceeding of statements made in

 connection with the settlement of a civil claim. As Butson

 acknowledges, his statements to police, even if construed as an

 offer to compromise, were made during discussions concerning

 criminal charges, not a civil claim. Moreover, his statements, which

 he made to a government agent, would be admissible under an

 exception to the rule. We therefore reject Butson’s argument that

 the district court erred in denying his motion to suppress the

 statements.




                                    1
¶4    We also reject Butson’s contentions that the district court

 erred in joining his three separately charged bank robbery cases for

 trial and in denying his motion for a special prosecutor.

 Accordingly, we affirm the judgment of conviction.

                           I.   Background

¶5    During the summer of 2013, Butson and his two sons robbed

 several banks in and around Colorado Springs. In each of the nine

 robberies, Butson selected the target bank, wrote the demand note,

 and acted as the designated “getaway driver,” while his sons,

 wearing dark-colored baseball caps each time, robbed the banks.

¶6    The spree ended when the police arrested Butson and his

 sons. The People charged Butson in three cases (13CR3575,

 13CR3586, and 13CR3600) with robbery and conspiracy to commit

 robbery. Butson was interviewed by police, waived his rights under

 Miranda v. Arizona, 384 U.S. 436 (1966), and provided details about

 the planning and commission of the robberies. He later moved to

 suppress his statements on the theory that he made them during

 the course of settlement discussions and therefore they were

 inadmissible at trial under CRE 408. The district court denied

 Butson’s motion, finding that the evidence did not demonstrate that


                                   2
 Butson and the officer were engaged in a mutual effort to

 compromise or negotiate the charges against Butson or his sons.

¶7    In the meantime, while the bank robbery cases were pending,

 the People filed a new witness tampering complaint against Butson,

 alleging that he had sent one of his sons a letter from jail, in which

 he attempted to dissuade the son from testifying at the bank

 robbery trial. Because the prosecutor in the bank robbery cases

 had handled the letter, Butson contended that he was entitled to a

 special prosecutor in all of his pending cases. The court denied

 Butson’s request after determining that the prosecutor was not a

 potential witness in the witness tampering case.

¶8    The prosecution moved to join the three bank robbery cases

 for trial, and the court granted the motion over defense counsel’s

 objection. A jury found Butson guilty of all but two counts. A

 month later, the court dismissed the witness tampering case when

 the prosecution failed to present sufficient evidence at the

 preliminary hearing.

               II.   Joinder of the Bank Robbery Cases

¶9    Butson first contends that the district court erred by joining

 the three bank robbery cases for trial.


                                    3
                         A.   Standard of Review

¶ 10   Relying on People v. Bondsteel, 2015 COA 165, ¶ 27 (cert.

  granted Oct. 31, 2016), the People contend that, notwithstanding

  Butson’s initial objection to joinder of the cases, he waived the

  claim by failing to renew his objection or to seek a severance during

  trial. We are not persuaded.

¶ 11   The division in Bondsteel held that an objection to joinder is

  unpreserved if not renewed at trial, id., but the division also

  acknowledged that its holding departed from nearly fifteen years of

  contrary precedent. See People v. Gross, 39 P.3d 1279, 1282 (Colo.

  App. 2001) (requiring only a pretrial objection to preserve the issue);

  see also People v. Curtis, 2014 COA 100, ¶ 12 (noting that People v.

  Gross “has been on the books without apparent controversy for

  almost thirteen years” and concluding that pretrial objection

  preserves a challenge to joinder). Because Butson’s trial preceded

  the Bondsteel decision, even were we to agree with that decision, we

  would not be inclined to apply its holding to this case because doing

  so may give rise to due process concerns. See Bondsteel, ¶ 30

  (recognizing that, “[t]o hold that the issue is waived, despite this




                                     4
  precedent, could be a retroactive application of a new rule, which

  might implicate due process”).

¶ 12    We review a decision concerning the joinder of separate cases

  for an abuse of discretion. Curtis, ¶ 14. An abuse of discretion

  occurs when the joinder causes actual prejudice as a result of the

  jury’s inability to separate the facts and legal theories applicable to

  each offense. Id. at ¶ 15; People v. Gregg, 298 P.3d 983, 985-86

  (Colo. App. 2011). A defendant cannot establish actual prejudice

  where evidence of each offense would have been admissible in

  separate trials. Gregg, 298 P.3d at 986.

                               B.    Analysis

¶ 13    A trial court may order two or more criminal complaints to be

  tried together if the offenses could have been joined in a single

  complaint. Crim. P. 13. Two or more offenses may be charged in

  the same charging document if the offenses are of the same or

  similar character or are based on two or more connected acts or

  transactions or are part of a common scheme or plan. Crim. P.

  8(a)(2).

¶ 14    In evaluating a motion to join cases for trial, the trial court

  must determine whether the offenses are sufficiently similar to be


                                      5
  tried together without causing juror confusion and whether, under

  CRE 404(b), evidence of each offense would have been admissible in

  separate trials. Gregg, 298 P.3d at 986.

¶ 15   Butson and his sons committed all of the robberies during the

  course of a few months and all involved the same handful of banks

  in relatively close proximity to each other. In each robbery, Butson

  identified the target bank, wrote a note, and staked out an

  advantageous spot to wait in the getaway car. Then one of the sons

  — wearing a baseball cap and sunglasses (the perpetrator was

  dubbed the “Ball Cap Bandit” by the press) — entered the bank

  with the note, departed with the cash, and escaped in the getaway

  car driven by Butson. They robbed some banks more than once.

¶ 16   Butson points out that the robberies involved different banks

  with different teller-victims, and were sometimes committed by one

  son and sometimes by the other. But when determining whether

  multiple offenses qualify for consolidation, “it is not essential that

  the means of committing the other crimes replicate in all respects

  the manner in which the crime charged was committed.” People v.

  Owens, 97 P.3d 227, 231 (Colo. App. 2004) (quoting People v.

  McKibben, 862 P.2d 991, 993 (Colo. App. 1993)). We conclude that


                                     6
  the robberies were sufficiently similar to satisfy Rules 8(a)(2) and

  13. See Gregg, 298 P.3d at 986 (robberies of banks located in same

  city committed within period of several months by common method

  were sufficiently similar for consolidation purposes).

¶ 17   Additionally, evidence of each of the charged robberies would

  have been admissible in separate trials. Under Rule 404(b),

  evidence of other crimes, wrongs, or acts is inadmissible as

  “propensity” evidence, but may be introduced to prove motive,

  intent, preparation, plan, knowledge, identity, or absence of mistake

  or accident. CRE 404(b); see also Gross, 39 P.3d at 1282. Such

  evidence is admissible if its relevance to a material issue in the case

  is independent of the intermediate inference that a defendant has a

  bad character and acted in conformity with that bad character, and

  its probative value is not substantially outweighed by the danger of

  unfair prejudice. People v. Whitlock, 2014 COA 162, ¶ 12; see also

  People v. Spoto, 795 P.2d 1314, 1318 (Colo. 1990) (to determine

  admissibility under CRE 404(b), court asks whether proffered

  evidence relates to a material fact, whether evidence is logically

  relevant, whether the logical relevance is independent of

  intermediate inference that the defendant has a bad character and


                                     7
  acted in conformity therewith, and whether probative value of the

  evidence is substantially outweighed by its prejudicial effect).

¶ 18   Common plan and scheme are “well-accepted methods of

  proving the ultimate facts necessary to establish the commission of

  a crime, without reliance upon an impermissible inference from bad

  character.” People v. Rath, 44 P.3d 1033, 1040 (Colo. 2002).

¶ 19   At trial, Butson denied that he had participated in any of the

  robberies and argued instead that his sons had implicated him to

  secure favorable plea deals. The bank robberies charged in each of

  the separate complaints established a pattern of behavior by

  Butson — he planned the robberies, he wrote the note, he drove the

  getaway car — that made it more probable that he was an active

  participant, rather than an innocent bystander. For example, the

  pattern of conduct tended to establish that Butson was aware of the

  robberies, and, therefore, as the designated “getaway driver,” was

  not in fact driving the car on each occasion for another, permissive

  reason. See, e.g., People v. Morales, 2012 COA 2, ¶¶ 32-33 (home

  burglaries, involving “defendant’s particular approach,” were

  sufficiently similar to show intent, modus operandi, and common

  plan); see also United States v. McGuire, 27 F.3d 457, 461 (10th Cir.


                                     8
  1994) (series of eight bank robberies “had many common

  characteristics,” including traveling to a medium-sized city, staying

  in town for one or two days, purchasing an inexpensive used car,

  and planning a specific getaway driving strategy, thus establishing

  the robberies were “but a part of a larger common scheme or plan”);

  United States v. Gutierrez, 696 F.2d 753, 755 (10th Cir. 1982)

  (evidence showed common scheme or plan where, among other

  similarities, defendant drove the getaway vehicle and used her

  children as a “cover” in both the prior bank robbery and the one at

  issue).

¶ 20   Butson nonetheless contends that joinder was improper

  because admission of the other acts evidence affected the jury’s

  ability to separate the facts and legal principles applicable to each

  offense. That contention is belied by the jury’s verdict. Counts one

  and two of the complaint filed in case 13CR3600 charged

  aggravated robbery and conspiracy to commit aggravated robbery,

  respectively. The jury acquitted on these charges — the two most

  serious counts in the consolidated complaints — demonstrating its

  ability to distinguish among the facts and law applicable to each

  charge. See People v. Garcia, 2012 COA 79, ¶ 30.


                                     9
¶ 21   Accordingly, we discern no abuse of discretion by the district

  court in joining the cases for trial.

¶ 22   Alternatively, Butson argues that, even if the cases were

  properly joined, the district court erred in failing to instruct the jury

  that it could consider evidence of the two bank robberies charged in

  cases 13CR3575 and 13CR3586 only for the limited purposes

  allowed under Rule 404(b). Butson did not request a limiting

  instruction, though, and so we review any error under a plain error

  standard of review. People v. Underwood, 53 P.3d 765, 771 (Colo.

  App. 2002). Under this standard, we will reverse only if the error

  was obvious and “undermined the fundamental fairness of the trial

  itself so as to cast serious doubt on the reliability of the judgment of

  conviction.” People v. Miller, 113 P.3d 743, 750 (Colo. 2005)

  (quoting People v. Sepulveda, 65 P.3d 1002, 1006 (Colo. 2003)).

¶ 23   The People contend that a limiting instruction was

  unnecessary because, once the cases were consolidated for trial, all

  of the counts merged into a single case such that Rule 404(b) was

  no longer applicable.

¶ 24   We need not resolve that issue, however, because even if Rule

  404(b) is applicable in a consolidated trial, it is defense counsel who


                                     10
  is “charged with the task of deciding whether a limiting instruction

  is desirable.” Bondsteel, ¶ 85 (quoting People v. Griffin, 224 P.3d

  292, 298 (Colo. App. 2009)). Here, defense counsel did not ask for

  one.

¶ 25     And even if we assume, without deciding, that the district

  court erred by failing to give a Rule 404(b) limiting instruction, we

  conclude, under the circumstances of this case, that any error does

  not rise to plain error. See Davis v. People, 2013 CO 57, ¶ 21

  (concluding that lack of a limiting instruction, when not requested

  by counsel and not required by statute, did not constitute reversible

  error). We are not persuaded, as Butson argues, that it was “almost

  impossible” for the jury to sort through the evidence and determine

  “what evidence was other acts, and what was direct evidence.”

  Though the district court did not give a Rule 404(b) limiting

  instruction, it did instruct the jury that “[e]ach count charges a

  separate and distinct offense and the evidence and law applicable to

  each count should be considered separately, uninfluenced by your

  decision as to any other count.” We presume the jury followed this

  instruction, which limited the jury’s consideration of the evidence.

  See Curtis, ¶ 23. Moreover, in this case, that presumption is


                                    11
  confirmed by the jury’s verdict which, as we have noted, reflects

  careful parsing of the evidence of guilt as to each count.

                         III.   Special Prosecutor

¶ 26   Butson next contends that, where the lead prosecutor in the

  consolidated bank robbery cases was endorsed as a witness in the

  later-filed witness tampering case, the district court erred in

  denying his motion for a special prosecutor. We disagree.

¶ 27   In the trial court, Butson argued that, pursuant to Rule 3.7 of

  the Colorado Rules of Professional Conduct, the prosecutor could

  not act as both a witness and the prosecuting attorney in the

  witness tampering case. But there was no similar allegation that

  the prosecutor might be called as a witness in the bank robbery

  cases. So Butson argued that a special prosecutor was necessary

  in the trial of those consolidated cases to prevent “the appearance

  of impropriety” created by the prosecutor’s potential appearance as

  a witness in the related witness tampering case.

¶ 28   We review a district court’s decision whether to disqualify a

  district attorney, and therefore whether to appoint a special

  prosecutor, for an abuse of discretion. Dunlap v. People, 173 P.3d

  1054, 1094 (Colo. 2007).


                                     12
¶ 29   Prior to its amendment in 2002, section 20-1-107 provided for

  disqualification if the district attorney was “interested” in the case,

  § 20-1-107, C.R.S. 2001, which appellate courts interpreted to

  include a circumstance that created “an appearance of

  impropriety,” People v. Palomo, 31 P.3d 879, 882 (Colo. 2001). The

  amended version of section 20-1-107, however, eliminated an

  appearance of impropriety as a basis for disqualification. People in

  Interest of N.R., 139 P.3d 671, 675 (Colo. 2006).1

¶ 30   Accordingly, Butson’s only argument in support of his request

  for a special prosecutor in the bank robbery cases was not a

  cognizable basis for disqualification of the prosecutor.

¶ 31   On appeal, while Butson insists that his “right to a fair trial” in

  the bank robbery cases “was impacted,” he does not explain how,

  and we are unable to discern any possible prejudice. See People v.

  Loper, 241 P.3d 543, 546 (Colo. 2010) (A party moving for

  disqualification on the basis that he will not receive a fair trial must


  1 The current version of the statute specifies that “[a] district
  attorney may only be disqualified in a particular case at the request
  of the district attorney or upon a showing that the district attorney
  has a personal or financial interest or finds special circumstances
  that would render it unlikely that the defendant would receive a fair
  trial.” § 20-1-107, C.R.S. 2016.

                                     13
  point to “actual facts and evidence in the record supporting the

  contention, not mere hypothetical information.”). The witness

  tampering case was dismissed shortly after the bank robbery trial,

  at the preliminary hearing stage. Thus, consistent with his

  statements to the court at the hearing on Butson’s motion, the

  prosecutor was never called as a witness in the witness tampering

  case. And no mention was made at the bank robbery trial of any

  letter allegedly sent by Butson to one of his sons or any other

  attempt by him to tamper with a witness.

¶ 32    We therefore conclude that the district court did not abuse its

  discretion in denying Butson’s motion for a special prosecutor.

            IV.   Suppression of Statements Under CRE 408

   A.   The Custodial Interrogation and Butson’s Motion to Suppress

¶ 33    Several days after Butson’s arrest, he contacted a detective

  from jail to request a meeting. At the hearing on his motion to

  suppress, Butson testified that when the detective arrived at the

  jail, Butson asked “if it would be possible to speak with him and the

  DA together for an interview to get consideration for my children.”

  The detective could not secure the district attorney’s presence,

  according to Butson, but told Butson that he would take a


                                    14
  statement and “do everything [he] could.” The detective testified

  that he did not recall Butson offering to provide information in

  exchange for sentencing concessions or other “consideration” for

  himself or for his sons. He denied telling Butson that he would “in

  any way put in a good word on his behalf for the cooperation.”

¶ 34   The detective transported Butson from jail to the police

  station, where Butson submitted to a videotaped interview. Prior to

  questioning, Butson was advised of, and validly waived, his Miranda

  rights. For the next approximately ninety minutes, he recounted

  details of each of the bank robberies, admitting his own involvement

  and implicating his children in the crimes. During this part of the

  interview, he did not tell the detective that he hoped or expected

  that his cooperation would inure to the benefit of his children.

¶ 35   As the interview was winding down, and in response to a

  question about his sons, Butson told the detective that he “want[ed]

  to do everything [he could] to get them off the hook entirely,” and

  that he “want[ed] to take the entire blame.” The detective

  responded, “Obviously you know that ain’t gonna happen.” At the

  conclusion of the interview, after the detective had explained that

  “we don’t dole out the punishment,” Butson said, “well, if you guys


                                    15
  have any influence at all on the punishment, I would ask that you

  try to minimize the damage it’s gonna cause to my, my boys.”

¶ 36   Butson filed a motion to suppress evidence, asserting that he

  made the statements to the detective in an effort to compromise a

  claim and therefore the entire custodial interview was inadmissible

  under Rule 408 to prove his guilt. The court denied the motion,

  reasoning that Butson had never made any formal offer to

  compromise a claim and the parties had not engaged in

  “give-[and]-take” negotiations.

                        B.    Standard of Review

¶ 37   In reviewing a trial court’s suppression order, we defer to the

  court’s factual findings, provided they are supported by competent

  evidence in the record. People v. Webb, 2014 CO 36, ¶ 9. Butson’s

  interview with the detective at the police station was videotaped,

  though some of the communications that Butson says are

  important occurred before the recorded interview. To the extent the

  unrecorded communications are relevant, we defer to the district

  court’s findings concerning those communications but, with respect

  to the videotaped statements, we are in the same position as the

  district court to determine whether those statements are entitled to


                                    16
  protection under CRE 408, a question of law that we review de novo

  in any event. See People v. Madrid, 179 P.3d 1010, 1014 (Colo.

  2008); see also People v. Reed, 216 P.3d 55, 56 (Colo. App. 2008)

  (appellate court reviews trial court’s interpretation of a rule of

  evidence de novo).

                               C.   CRE 408

¶ 38   The current version of CRE 408 provides as follows:

             (a) Prohibited uses. Evidence of the following
             is not admissible on behalf of any party, when
             offered to prove liability for, invalidity of, or
             amount of a claim that was disputed as to
             validity or amount, or to impeach through a
             prior inconsistent statement or contradiction:

             (1) furnishing or offering or promising to
             furnish accepting or offering or promising to
             accept a valuable consideration in
             compromising or attempting to compromise
             the claim; and

             (2) conduct or statements made in compromise
             negotiations regarding the claim, except when
             offered in a criminal case and the negotiations
             related to a claim by a public office or agency
             in the exercise of regulatory, investigative, or
             enforcement authority.

             (b) Permitted uses. This rule does not require
             exclusion if the evidence is offered for purposes
             not prohibited by subdivision (a). Examples of
             permissible purposes include proving a
             witness’s bias or prejudice; negating a
             contention of undue delay; and proving an

                                     17
            effort to obstruct a criminal investigation or
            prosecution.

¶ 39   Butson argues that his custodial interview constituted

  settlement discussions during which he offered to compromise a

  claim — that is, the criminal charges against his sons — by

  providing information about the bank robberies.

¶ 40   We note at the outset that, as the trial court observed, the

  applicability to criminal proceedings of the rule barring admission

  of offers to compromise a claim has been raised in only one

  Colorado case, McClain v. People, 111 Colo. 271, 141 P.2d 685

  (1943).2 The supreme court ultimately “pass[ed] th[e] question”

  whether the rule barred admission at trial of the defendant’s offer to

  plead guilty in exchange for a change of venue. Id. at 274, 141 P.2d

  at 687. Instead, the court concluded that the defendant’s

  statements to the prosecutor were admissible “for another reason”:

  as an “admission of guilt.” Id. at 275, 141 P.2d at 687.




  2 The principle discussed in McClain v. People, 111 Colo. 271, 141
  P.2d 685 (1943) — that offers to compromise a claim are ordinarily
  inadmissible at trial — was not codified in CRE 408 until 1980,
  when the Colorado Rules of Evidence became effective.

                                    18
¶ 41      We therefore look to the language of the rule and to cases

  addressing the issue under the analogous federal rule. See Stewart

  v. Rice, 47 P.3d 316, 321 (Colo. 2002) (when a state rule of evidence

  is similar to the federal rule, we may look to the federal authority

  for guidance in construing our rule). Using this framework, we

  discern two problems with Butson’s argument: first, as a matter of

  plain language, the term “claim” refers to a civil claim, and, second,

  even if the criminal charges constituted a “claim” that Butson had

  offered to settle, his settlement statements were made to a

  government agent and therefore were nonetheless admissible in his

  criminal trial under CRE 408(a)(2).

¶ 42      In construing a rule of evidence, we apply standard principles

  of statutory construction. In re Marriage of Wiggins, 2012 CO 44,

  ¶ 24. Accordingly, we first aim to interpret a rule’s language

  consistent with its “commonly understood and accepted meaning.”

  Leaffer v. Zarlengo, 44 P.3d 1072, 1078 (Colo. 2002) (quoting

  Farmers Ins. Exch. v. Bill Boom Inc., 961 P.2d 465, 469 (Colo.

  1998)). If the rule is unambiguous, we apply it as written. Wiggins,

  ¶ 24.




                                      19
¶ 43   CRE 408(a) prohibits admission of settlement offers when

  offered to prove “liability for, invalidity of, or amount of a claim” that

  was “disputed as to validity or amount . . . .” This language is

  commonly understood as referring to a civil claim. We do not

  ordinarily refer to bank robbery charges as “claims” for which there

  might be a dispute concerning “validity or amount.” Cf. United

  States v. Baker, 926 F.2d 179, 180 (2d Cir. 1991) (“The reference to

  ‘a claim which was disputed as to either validity or amount’ does

  not easily embrace an attempt to bargain over criminal charges.”),

  superseded by rule as stated in United States v. Davis, 596 F.3d 852

  (D.C. Cir. 2010).

¶ 44   We find support for this interpretation of “claim” in a different

  rule of evidence, CRE 410, which explicitly addresses a defendant’s

  offer of information in exchange for leniency in a criminal case.3

  Under Rule 410, statements made in connection with a guilty plea

  or an offer to plead guilty are not admissible in any civil or criminal



  3 Butson could not rely on CRE 410, however, because a division of
  this court has interpreted the rule to apply only when the
  prosecutor has knowledge of, and has agreed to be bound by, the
  plea discussions, People v. Martinez, 36 P.3d 154, 161 (Colo. App.
  2001), a prerequisite that was not satisfied here.

                                     20
  action against the person who made the plea or offer. If the term

  “claim” in Rule 408 also encompassed criminal charges that could

  be “compromised” through discussions akin to plea negotiations,

  CRE 410 would seem to be unnecessary. Cf. Baker, 926 F.2d at

  180.

¶ 45     Butson has not pointed to any case, and we have not

  uncovered one, where a court has interpreted the term “claim” in

  Rule 408 to mean “criminal charges.” Instead, cases interpreting

  the scope of Rule 408 all involve statements made in an attempt to

  settle a civil claim. The question in these cases is whether Rule 408

  prohibits the admission of such statements at a criminal trial, not

  whether the rule protects inculpatory statements by the defendant

  made in the context of the criminal proceeding itself. See, e.g.,

  United States v. Logan, 250 F.3d 350, 367 (6th Cir. 2001) (issue was

  whether defendant’s civil settlement agreement with the

  Department of Housing and Urban Development was admissible at

  his mortgage fraud trial), superseded by rule as stated in McAuliffe

  v. United States, 514 F. App’x 542 (6th Cir. 2013); United States v.

  Hays, 872 F.2d 582, 588-89 (5th Cir. 1989) (issue was whether




                                    21
  evidence of settlement agreement between a bank and its officers

  was admissible in the officers’ criminal fraud trial).

¶ 46   Thus, we conclude that, as a general matter, Rule 408

  precludes admission of statements made for the purpose of settling

  a civil claim. But even so, there are exceptions to Rule 408’s bar.

¶ 47   That brings us to the second problem with Butson’s argument.

  Even if his interview with the detective could be construed as

  discussions to settle a “claim,” his statements are nonetheless

  admissible under CRE 408(a)(2) because they were made to a

  government agent.

¶ 48   Prior to the 2006 amendment to Fed. R. Evid. 408, which

  added subsection (a)(2),4 courts were divided on the Rule’s

  applicability to criminal proceedings. Compare, e.g., United States

  v. Prewitt, 34 F.3d 436, 439 (7th Cir. 1994) (the defendant’s

  statements made during negotiations with a state agency to settle

  civil investigation into deceptive business practices were admissible

  at his criminal trial on charges of defrauding investors), and State v.


  4CRE 408 was amended in 2007 to mirror the federal rule. Rule
  Change 2007(13), Colorado Rules of Evidence (Amended and
  Adopted by the Court, En Banc, Sept. 27, 2007),
  https://perma.cc/U6G7-BTUB.

                                     22
  Mead, 27 P.3d 1115, 1128 (Utah 2001) (the defendant’s statements

  made in an attempt to settle a wrongful death case were admissible

  in his murder trial), with United States v. Bailey, 327 F.3d 1131,

  1146 (10th Cir. 2003) (statements made by the defendant during

  settlement discussions with investors were inadmissible in his later

  criminal fraud trial).

¶ 49   The amendment made clear that Rule 408 applies to both civil

  and criminal proceedings. See McAuliffe, 514 F. App’x at 549 (“A

  2006 rule amendment . . . conclusively settled a circuit split in

  favor of applying Rule 408 in criminal cases.”). However, Rule 408

  now draws “a distinction between civil disputes involving the

  government and civil disputes involving private parties.” Davis, 596

  F.3d at 860. Under the current version of Rule 408, a defendant’s

  statements in settlement negotiations with government agencies

  may be admitted in a criminal case. CRE 408(a)(2). But if the

  claim arises from a dispute with a private party, the defendant’s

  offer of settlement and related statements may not be admitted in a

  criminal prosecution when “offered to prove liability for, invalidity

  of, or amount of a claim.” Davis, 596 F.3d at 860 (quoting Fed. R.

  Evid. 408(a)).


                                    23
¶ 50   In Davis, for example, the defendant was charged with

  embezzling funds from the fraternity for which he served as

  treasurer. 596 F.3d at 853. At trial, the government introduced

  testimony from the incoming treasurer about a conversation that

  had occurred prior to the filing of the criminal charges. During that

  conversation, the incoming treasurer confronted the defendant

  about $29,000 in checks which, contrary to the defendant’s earlier

  assurances, had apparently not been deposited into the fraternity

  bank account. The defendant did not admit any wrongdoing, but

  he offered to pay half the $29,000 to “make th[e] situation just go

  away.” Id. at 854.

¶ 51   On appeal, the court agreed with the defendant that his

  statements should have been excluded under Rule 408. The

  defendant offered to compromise a disputed claim with a private

  party, the court reasoned, and the government introduced the

  statements to prove his “liability” for the claim. Id. at 859.

¶ 52   In contrast to the circumstances in Davis, the detective with

  whom Butson spoke was a government agent employed by the

  Colorado Springs Police Department, and the discussion related to

  criminal charges brought by the District Attorney’s Office in the


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  exercise of its investigative or enforcement authority. CRE

  408(a)(2).

¶ 53   The advisory committee note to amended Fed. R. Evid. 408

  explains that the new rule provides no protection for statements

  made to government officials because “[w]here an individual makes

  a statement in the presence of government agents, its subsequent

  admission in a criminal case should not be unexpected.” Fed. R.

  Evid. 408 advisory committee’s note. Butson could not have

  reasonably expected that inculpatory statements he made to a

  police officer during a custodial interrogation would be excluded

  from his criminal trial. In fact, he explicitly agreed, when he waived

  his rights under Miranda, that his statements could be used against

  him in his criminal case.

¶ 54   We therefore conclude, albeit for reasons different than the

  district court, that CRE 408 does not bar the admission of Butson’s

  statements to the detective.5 See People v. Terhorst, 2015 COA 110,



  5 Still, we conclude that the record supports the district court’s
  finding that neither the pre-interview exchange at the jail nor the
  interview itself amounted to settlement discussions because Butson
  did not make a concrete offer to provide anything of value in
  exchange for leniency and the detective made clear from the outset

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  ¶ 24 (appellate court may affirm the denial of a suppression motion

  on any ground supported by the record, even if it is a ground not

  relied on by the district court). Accordingly, the district court did

  not err in denying Butson’s motion to suppress his statements.

                             V.   Conclusion

¶ 55   The judgment of conviction is affirmed.

       JUDGE LICHTENSTEIN and JUDGE VOGT concur.




  that he could not “settle” the criminal cases or otherwise negotiate
  for a particular outcome.

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