March 9, 2012

Colorado Court of Appeals - 3-1-12 decision - People v. Carbajal

People v. Carbajal            Possession of a Weapon by a Previous Offender – Constitutional Defense
Facts: The police searched Mr. Carbajal’s home, and claim they found three handguns. Mr. Carbajal previously suffered a felony conviction, and thus, the prosecution charged him with three counts of possession of a weapon by a previous offender (POWPO). The prosecution hung its whole case on a modification of the stock affirmative defense instruction. The stock instruction comes from the Right to Bear Arms in the Colorado Constitution. Colo. Const. Art. II, § 13. Section 13 of Article II reads, “The right of no person to keep and bear arms in defense of his home, person and property, or in aid of the civil power when thereto legally summoned, shall be called in question….” The stock instruction reads, “It is an affirmative defense to the charge of [POWPO] that the defendant possessed a firearm for the purpose of defending himself, home, or property.” However, the prosecution asked and the trial court gladly added, “…from what he reasonably believed to be a threat of imminent harm,” to the stock instruction.
Issue: Whether the modification to the stock affirmative defense instruction which was based upon a substantive constitutional right violated Mr. Carbajal’s right to due process and fair trial?
Held: Yes.
Reasoning: The Court of Appeals highlighted the prosecutor’s cross-examination and closing argument - both of which the prosecutor wove around the faulty modification of the stock affirmative defense instruction. Further, the Court held despite the sky-will-be-falling and felons-everywhere-will-soon-possess-firearms hysterics by the State, that the prosecutor could make all the same arguments under the stock instruction. Moreover, the stock instruction does not impair the prosecutor’s cross-examination or limit the questions. Lastly, the Court held that the “modification to the instruction impacted (Mr. Carbajal’s) substantive rights, and therefore, was not harmless error.”

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