February 21, 2011

Colorado Court of Appeals decisions 2-17-11


People v. LePage            Plain Error – Wrong Jury Verdict Form / “soft transition” vs “hard transition” jurisdiction / Challenge for Cause
Facts: A jury convicted Mr. LePage of 2nd Degree Assault. The defense submitted a lesser of Obstruction of a Peace Officer. Seems the state previously incarcerated Mr. LePage for life, and this skirmish with a guard occurred up in Sterling Correctional. The trial court correctly instructed the jury on the elements of Obstruction. However, the trial court gave the jury a verdict form for the lesser of 3rd Degree Assault – not Obstruction. Neither defense counsel nor the prosecution objected.
Issue: Whether trial court’s failure to give the proper verdict form for the lesser offense amounted to plain error?
Held: No.
Reasoning: The CofA defined Colorado as a “soft transition” jurisdiction based upon People v. Richardson, 184 P.3d 755 (Colo.2008). Thus, a jury can decide the lesser offenses prior to deciding the greater offenses. “In accordance with
the ‘soft transition’ approach, when there is a rational basis for the jury to convict the defendant on a lesser included offense, the trial court's failure to instruct on that offense constitutes reversible error.” People v. Pena, 962 P.2d 285, 287 (Colo.App.1997). Mr. LePage argued that the trial court’s failure to give the proper verdict form amounted to a refusal to permit the jury to decide the issue of Obstruction. The CofA disagreed, and affirmed the conviction.

Issue: Whether “I think I would” is sufficient grounds to challenge a juror for cause?
Held: No
Reasoning: The juror said, “I'd like to hear from the defendant, his side of the story.” LePage’s lawyer asked the juror, “Would you hold that against Mr. LePage just even a little bit?” The juror answered, “I think I would.”
The prosecution then easily rehabbed the juror:
The prosecutor asked Juror M., “[D]o you feel that you could render a fair and impartial verdict?” and Juror M. answered, “Yeah, I think I could.” The prosecutor then asked, “You are not going to try and assume something simply based on silence?” and Juror M. responded, “I would go with the evidence, you know, what's going to be presented.” Finally, the trial court informed Juror M., “LePage doesn't have to present any evidence at all. Do you understand that?” and “Do you feel you could follow that instruction?” to which Juror M. twice answered, “Yes.” When asked, “[S]o if [LePage] didn't testify, you would not hold that against him?” Juror M. answered, “No.”

Moral of the story? Follow Ann Roan’s flow chart for challenges for cause. This lawyer stopped at the slightest hint of unfairness, which is never sufficient (truth be told, I know I have committed the same error). The lawyer did not open it up for all the reasons the juror felt the way he/she did about testifying. The lawyer did not then lead the juror through the same with leading questions. The lawyer did not then give the law as an out and close the cave. The trial lawyer believed he/she established enough when clearly even without the rehab she/he did not.

People v. Hicks            Statute of Limitations / Ex Post Facto
Facts: Mr. Hicks pled to sexual assault when a COLD! CASE! Unit ran the DNA from some old ’92 rape case. The offense occurred in ’92 and the prosecution charged him in ’06. Mr. Hicks’ lawyer filed a motion to dismiss based upon the statute of limitations (10 years in ’92), but the trial court never ruled on the motion. Instead, Mr. Hicks pled.
Issue: Whether the 10-year statute of limitations applied depriving the trial court of jurisdiction?
Held: No.
Reasoning: The CofA reasoned the 10-year statute of limitations did not apply. Because the legislature modified the statute to indefinite in ’01 before the original statute of limitations ran out on this offense, Ex Post Facto did not prohibit the state from prosecuting Mr. Hicks. “It is well established that ‘a law enacted after expiration of a previously applicable limitations period violates the Ex Post Facto Clause when it is applied to revive a previously time-barred prosecution.’ Stogner v. California, 539 U.S. 607, 632-33 (2003)…”

People v. Walker            Speedy Trial
Facts: On October 6, 2008, Mr. Walker pled not guilty to first-degree assault, second-degree assault, and domestic violence charges. The trial court set trial for March 30 2009. On March 30, 2009, the day of trial, the prosecution told the trial court it could not proceed because the complaining witness did not show on the subpoena. The trial court dismissed the charges against Mr. Walker, and issued a warrant for the complaining witness. On November 9, 2009, the police arrested the complaining witness, and the prosecution re-filed the charges against Mr. Walker. Mr. Walker filed and the trial court granted the motion to dismiss for violation of Mr. Walker’s statutory speedy trial rights.
Issue: Does dismissing and then re-filing charges outside the original speedy trial period violate a person’s statutory right to speedy trial?
Held: No.
Reasoning: The CofA reasoned dismissal sufficiently protected Mr. Walker’s rights under the speedy trial statute, and the re-filing of the exact same charges based upon the exact same evidence did not violate those rights. The CofA mentioned the trial court said “without prejudice” - words I’ve always thought had absolutely no meaning but made retards feel like they knew what they were talking about. Further, the CofA mentioned that defense counsel did not object to the “without prejudice” language. Most importantly, the CofA held there is really no such thing as an “anticipatory speedy trial violation.” Thus, perhaps if defense counsel would have objected, and asked that the trial be reset on the last day or at least within the remaining speedy trial period (all of 6 days), then maybe counsel could have preserved the right and established a violation of speedy trial. Idiotic, because the original trial judge put on the record it was impossible to re-set the case in the next 6 days. Good God. The lengths we go to incarcerate people. Too bad Courts are not that forgiving when it comes to defense motions or the Constitution. 

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