Colorado Supreme Court decisions 6-28-10

Wend v. People         Prosecutorial Misconduct / Plain Error / Use of the word “lie”

Synopsis: Ms. Wend and the deceased did methamphetamine together, and the deceased let Ms. Wend live with him. To celebrate Christmas, the pair did some meth together. At some point, the deceased sought, demanded or threatened Ms. Wend to have sex with him, according to the defense theory. Ms. Wend, who previously expressed fear of the deceased to others, shot the deceased. Ms. Wend recruited another cohort to help her dump the body in a refrigerator in a dump outside Castle Rock. Cohort enters a plea deal, and he snitches on Ms. Wend. Police arrest Ms. Wend. During the interrogation, Ms. Wend went from knowing nothing, to blaming the cohort, to self-defense. Further, Ms. Wend acknowledges to the police during the interrogation that she lied to them. At trial, Ms. Wend asserted self-defense. During trial, Defense counsel admits client lied during interrogation. Prosecution weaves its entire case around the word lie in opening and closing. The defense does not object to the prosecution’s repeated characterization.

Issue: Did the prosecution commit plain error by repeatedly characterizing the defense as a lie?

Holding: Yes.

Reasoning: Every Justice, including the dissent, agreed that there is a “categorical prohibition on the use of the word lie and all its derivatives.” Thus, every justice agreed that the prosecution violated the categorical rule. The majority held the error amounted to plain error (plain error is the standard when defense counsel DOES NOT object). Justice Rice, writing for the majority, found although not “constitutional”, the error undermined the “basic fairness of the trial.” Thus, she reasoned, the error mandated reversal. Justice Eid wrote for herself and Justice Coates in dissent. Justice Eid reasoned that because defense counsel also used the word “lie” that the error did not amount to plain error.

Lesson: OBJECT if you hear the word lie out of anyone’s mouth, especially the prosecution. Further, DO NOT concede your client lied. It will invite the prosecution to adopt the language, and void any error on appeal.