Colorado Court of Appeals decision 12-9-10

People v. Moore            Defective Curtis advisement   / Juror Miscoduct / Confrontation Clause and Pen Packs         

Facts: A jury found Mr. Moore guilty of attempted first-degree murder,

two counts of first-degree burglary, first-degree assault, sexual assault, menacing, and violation of a protection order. Further, the trial court adjudicated Mr. Moore to be a habitual offender. During the Curtis advisement, the trial court advised Mr. Moore,” ‘the Prosecutor may ask you what [your] prior felony conviction or convictions were for’ and ‘whether the convictions were by a guilty plea, or whether you actually went to trial, and were found guilty at the trial.’ “ In People v. Gomez, the Court of Appeals “held that ‘in cross-examining a defendant, the prosecutor may not ask whether a prior felony conviction arose from a plea or a trial,’ and that a Curtis advisement to the contrary is erroneous.” (Moore, quoting Gomez)(emphasis added).

Issue: Whether the trial court committed plain error with a defective Curtis advisement?

Held: No.

Reasoning: Because Colorado law was unsettled and because a different division of the Court of Appeals did not decide Gomez until after Mr. Moor’s trial the error did not amount to “plain error”.

Issue: Whether the trial court abused its discretion by not excusing a juror who’s husband read to her Mr. Moore’s criminal history from the newspaper?

Held: Ummm… did you see the crimes in which the jury convicted Mr. Moore? Then it was not error.

Reasoning:  

The CofA outlined this procedure for dealing with prejudicial publicity,

“A trial court should deal with juror exposure to prejudicial publicity during trial as follows:

1) the trial court must determine whether the publicity is inherently prejudicial;

2) if so, the court should canvass the jury to determine whether the jury learned of the prejudicial publicity; and

3) the trial court should individually examine exposed jurors to determine how much they know of the publicity and what effect, if any, the publicity will have on their deliberations.”

After the article on Mr. Moore’s case came out in the newspaper, Juror S disclosed that her husband read the entire article to her “from another room.” Juror S claimed to not have paid much attention, that she did not remember anything from the article, and of course, she could be “fair and impartial.” (hahaha….seriously, with bitch counts thrown into the mix?) Further, Juror S claimed that she did not tell her husband to stop for fear of violating the trial court’s order to not discuss the case at all with anyone.  The CofA affirmed the trial court’s decision to keep Juror S on the panel.

Issue: Confrontation and Pen Packs

The CofA found no Confrontation Clause error in admitting the pen packs.