Colorado Court of Appeals 9-15-11 Criminal Law Decision

People v. Gibbons           Modified Allen Instruction /  Time Fuse Instruction

Facts: The jury came back and said it was deadlocked. The trial court read the modified Allen instruction to the jury and told them to deliberate for another hour. The trial court stated in an hour it would check and see where the jury was at at that time. The jury then convicted Mr. Gibbons of theft by receiving and second-degree perjury.

Issue: Whether the hour time check stated by the trial court amounted to an impermissible ‘time-fuse’ instruction?
Held: No.

Reasoning: The Court of Appeals reasoned that by telling the jurors that it would check back with them in an hour, the trial court did not coerce the jury into its verdict. Unlike Allen v. People (where the trial court told the jury 15 more minutes and it was going to declare a mistrial), that the trial court did not give the jury a coercive time fuse instruction.

Colorado Court of Appeals 9-15-11 Criminal Law Decisions

People v. DeWitt            Right To Bear Arms / Affirmative Defenses / Possession of a Weapon by a Previous Offender

Facts: The prosecution charged Mr. DeWitt with possession of a weapon by a previous offender. The trial court in gun toting, military loving, red-neck hugging Colorado Springs denied Mr. Dewitt an instruction on the Right to Bear Arms as an affirmative defense. Mr. DeWitt testified that he carried the guns for self-defense.

Issue: Whether the trial court erred in denying Mr. DeWitt an instruction on the Right to Bear Arms as an affirmative defense to possession of a weapon by a previous offender?

Held: Yes.

Reasoning: A) The Court of Appeals found that the Right to Bear Arms under the Constitution is indeed a defense; B) Mr. DeWitt’s testimony provided more than the scintilla of evidence needed to justify instructing the jury on the Constitutional affirmative defense of Right to Bear Arms; C) This holding is completely consistent with People v. Barger, 732 P.2d 1225, 1226 (Colo.App.1986). In Barger, the Court held the offer of proof insufficient to justify the instruction. Here, Mr. DeWitt testified. Nice work trial attorney, whomever you may be.