Colorado Court of Appeals 12-24-09

People v. Barrus       Self-Defense and Obstructing a Peace Officer / Severance-Joinder / Indecent Exposure

Obstructing, Self-Defense and Severance - In two separated incidents, the prosecution alleged Mr. Barrus committed indecent exposure, and in both he attempted to flee the police. First on May 14 Mr. Barrus actually got away, and on June 2, he attempted but could not flee. In the first, a school teacher reported a man was naked in his car in the parking lot. In the June 2, the police got a call of a man walking around naked. Both incidents involved a black Toyota. However, in the first incident Mr. Barrus claimed he wanted to testify to establish self-defense against the obstructing charge. (If the trial court agreed, than those charges in which Mr. Barrus would testify to would mandate severance from the other charges). The trial court found self-defense does not apply to obstructing a police officer. The Court of Appeals reversed the obstructing conviction, and remanded that charge for a new trial. The CofA held that a person does have a right to self-defense to the application of unlawful or excessive force, and thus, a person is entitled to a self-defense instruction if there is evidence that supports the defense. However, the CofA upheld the conviction on the two F5 Vehicular Eluding charges. The CofA did not think the verdict on the obstructing a peace officer influenced the verdicts on the eluding counts.

Indecent Exposure – The CofA held that a person running naked without more is insufficient to support a conviction for indecent exposure. The
Court wrote,

“we reject any suggestion that the elements are satisfied simply by proof that defendant was naked. By its very terms, the statute requires a defendant to expose his or her genitals to another person in a manner that is likely to cause affront or alarm. In other words, to satisfy the elements of the crime of indecent exposure, a person must do something that would make his or her genitals visible to another person."

People v. Flockhart              Jury Pre-Deliberation Discussion / Recusal / Fourth Amendment Standing / Challenges for Cause

Pre-deliberation Discussion - The Court of Appeals held that the trial court erred in allowing pre-deliberation discussions. However, instead of simply reversing the conviction, the CofA remanded for a hearing on whether the error was harmless beyond a reasonable doubt. (one Appeals Court Judge dissented from this portion of the opinion, and in an lengthy dissent went on and on about how “social science” has shown pre-deliberation discussions do not adversely affect a defendant).

Challenges for Cause – the trial court required both the challenges and the arguments on those challenges to be heard in open court in front of the very jurors defense counsel sought to oust from the panel. The CofA found the trial court erred because the procedure may create a bias against the defendant that did not exist previously. However, the CofA did not find the error substantial enough to be plain error.

Recusal – The CofA held, despite similar charges, merely showing that the trial judge previously prosecuted the defendant did not require recusal of the judge.

People v. Hunter  Definition of “Stranger” under Sexually Violent Predator

The Court of Appeals held that because Mr. Hunter was a neighbor of the alleged victims, he did not fit the definition of “stranger” under the Sexually Violent Predator statute. The CofA found that because Mr. Hunter lived in the trailer next door to the victims, met them, and that they knew him, that Mr. Hunter did not fit the definition of stranger.