Colorado Court of Appeals decision 1-6-11

People v. Smith            6^th Amendment Right to Present a Defense vs. the 5^th Amendment Privilege of Co-Defendant

Synopsis: Essentially, Mr. Smith wanted his co-defendant / coconspirator to testify in his trial where the prosecution alleged theft, forgery, criminal impersonation, and various other offenses relating to four purses stolen from a daycare center in Jeffco. Mr. Smith’s co-defendant previously pled, but had not been sentenced by the time Mr. Smith’s trial rolled around. At trial, the co-defendant asserted her 5^th Amendment Privilege Against Self-incrimination. Mr. Smith moved to continue the trial until after the co-defendant’s sentencing. The trial court, Judge Munch in Jeffco, denied the motion.

Issue: Whether the trial court violated Mr. Smith’s Right to Present a Defense under the 6^th Amendment when it allowed the co-defendant to assert her 5^th Amendment Privilege?

Held: No.

Reasoning:  The CofA held that despite her plea, the co-defendant still had a right not to incriminate herself. Mitchell v. United States, 526 U.S. 314 (1999). Further, the CofA stated, “A court may deny a witness’s claim of privilege only if it is absolutely clear that the witness is mistaken and the testimony cannot possibly incriminate him.” quoting, People v. Villa, 671 P.2d 971, 973 (Colo.App. 1983). Here, the CofA reasoned because sentencing can take in a whole host of factors to aggravate or mitigate a sentence, virtually anything upon which the co-defendant testified could potentially be used against her at sentencing. In any event, the CofA reasoned it was not “absolutely clear” the co-defendant would not incriminate herself.  Further, the CofA held when the 5^th Amendment Privilege clashes with another’s 6^th Amendment Right to Present a Defense, the Right to Present a Defense loses.

Nevertheless, here is some helpful language prevent our clients from hanging themselves by submitting to a PSI or offense specific evaluation (such as sexual assaults or other case where it would be more harmful to submit to the evaluation): “There is no basis for the assertion of the privilege when a witness has been charged with a crime, but ‘the sentence has been fixed and the judgment of conviction has become final.’” quoting, Mitchell 119 S.Ct. at 326.

Issue: Whether the trial court abused its discretion in denying Mr. Smith’s motion to continue until after the co-defendant’s sentencing?

Held: No

Reasoning: The CofA reasoned, 1) the co-defendant could decide to appeal her sentence, and thus, her conviction would not be final until she exhausted her appellate rights; and 2) the prosecution in Mr. Smith’s trial stipulated to some statements and a letter written by the co-defendant which exculpated Mr. Smith.