December 6, 2010

Colorado Supreme Court decisions 11-30-10

People v. White        Juror Qualifications – Residency
Ann Roan previously sent around an email about this decision. The Colorado Supreme Court held that a juror no longer living in Teller County and who did not intend to move back to Teller County anytime soon, still qualified as a resident of Teller County. The Court reasoned that because the juror was a college-aged kid (although not actually in college or any educational institution), lived with his sister, had just moved from his dad’s house in Teller County, and at some point in his life intended to move back. Justice Coats, he of strict Constitutional interpretation when it limits our clients’ ability to address violations, wrote for the majority, “Beyond these syntactical considerations, statutory definitions, and interlocking statutory schemes, interpreting the existing juror qualification statute as providing for broad-based juror eligibility on the basis of either majority presence in the county or maintaining a domicile there comports with both the realities of our contemporary mobile culture and the extremely minimal nature of constitutional vicinage requirements. Ensuring that jury verdicts result from the common sense judgment of lay representatives of the community and that an accused is provided with a fair opportunity for obtaining a representative cross section of the community on
the jury is in no way furthered by hyper-restrictive residency requirements.” Read a history of Justice Coats decisions, and you will find that he limits any statute to prevent a plaintiff in the civil arena from winning, he reads defense objections very narrowly, and he limits any exercise of constitutional rights by the accused in criminal cases. Yet, now he wants to read a straight forward residency statute broadly, and just coincidentally, that reading obviates the need for a re-trial of Mr. White. Incredible result oriented decision.

People v. Martinez Closing Argument – Prosecutorial Misconduct - Tailoring Argument / Harmless Error
Essentially, the Colorado Supreme Court, unlike the U.S. Supreme Court, held that a prosecutor cannot make a generic tailoring argument. 
Facts: The prosecution asserted that Mr. Martinez ‘tailored’ his testimony to fit the evidence at trial. The Court of Appeals found the prosecution did not violate Mr. Martinez’s rights because the record of the trial supported the prosecution’s argument. Interestingly, the Colorado Supreme Court pointed out that the CofA went through the record to support the prosecutor's argument, but the prosecutor only generically reference how Mr. Martinez tailored his testimony.
Issue: Whether Colorado law prohibits prosecutors from making generic tailoring arguments?
Whether the prosecution's tailoring argument is harmless error?
Held: Yes and Yes.
Reasoning: The Colorado Supreme Court defined generic tailoring arguments: “Generic tailoring arguments occur when the prosecution attacks the defendant's credibility by simply drawing the jury's attention to the defendant's presence at trial and his resultant opportunity to tailor his testimony.” The Court tracked and cited favorably U.S. Supreme Court Justice Ginsberg’s dissent in Portuondo v. Agard, 529 U.S. 61, 120 S.Ct. 1119, 146 L.Ed.2d 47 (2000). In Potuondo, the U.S. Supreme Court held that tailoring arguments do not violate the Federal Constitution. Although Mr. Martinez's counsel objected, the Colorado Supreme Court determined that Mr. Martinez failed to raise this issue under the Colorado Constitution because Mr. Martinez's counsel did not cite specifically cite the Colorado Constitution in the objection. Nevertheless, the Court found the prosecutor’s argument improper because the prosecutor argued only generically that Mr. Martinez tailored his argument. In finding the argument improper, the Court wrote, “During rebuttal argument, the prosecutor referenced defendant's presence at trial two times. The prosecutor first suggested that the defendant had been ‘able to sit in here the whole time and listen to what everybody had to say.’ The prosecutor then asked the jury ‘to judge the credibility of all witnesses’ because he ‘was able to tailor his statement with what everybody else had to say because he's been here.’ In all three instances, then, the prosecutor clearly failed to tie her tailoring arguments to evidence in the record. Instead, the prosecutor merely referenced the defendant's presence at trial, asking the jury to draw an unreasonable inference regarding the defendant's credibility. These are precisely the types of generic tailoring arguments that rise to the level of improper trial argument.”  Unfortunately, the Court found the prosecutor’s argument improper only under Rule 52(c) – not the Colorado Constitution (again, because trial counsel did not cite the Colorado Constitution specifically in his objection). Thus, the Court easily found that the error did not rise to the level of a plain error.  As Ann Roan stated in her previous email, always cite the Federal and Colorado constitutions not only in your motions and briefs, but also in your objections and arguments.

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