The Colorado Court of Appeals issued its opinion in People v. Banks on September 27, 2012.

Juvenile Charged as Adult and Convicted—Privilege Against Self-Incrimination—Recorded Statements—Due Process—Confrontation of Witnesses—Polygraph Test—Challenge for Cause—Sentence—Parole.

Defendant appealed his judgment of conviction entered on a jury verdict finding him guilty of first-degree murder and his sentence of life imprisonment without parole. The judgment was affirmed, the sentence was affirmed in part and vacated in part, and the case was remanded to the trial court for resentencing.

On December 11, 2004, defendant, then age 15 and a member of the Tre Tre Crips gang, attended a house party, where he shot and killed the victim, a 16 year old. Defendant was charged as an adult with first-degree murder after deliberation and later was convicted and sentenced to life imprisonment without parole.

On appeal, defendant contended that the trial court erred in denying his motion for mistrial and permitting the prosecution to question a witness regarding an assertion of the privilege against self-incrimination. Although the prosecution asked the witness about the privilege, the witness did not invoke his Fifth Amendment privilege at trial. Further, because the witness’s credibility was impeached by his admission to having three prior felony convictions, being incarcerated at the time of trial, and lying to an officer, the prosecution’s question about privilege did not have any further prejudicial impact on his credibility.

Defendant also argued that the trial court erred in denying two motions for mistrial and admitting five recorded statements containing inadmissible material. A majority of the statements in these interviews were prior inconsistent or consistent statements, and the required foundational elements were met. Further, most of the statements were cumulative of other testimony or provided context, and defendant did not meet his burden of persuasion in showing how the statements prejudiced him. Thus, the trial court did not abuse its discretion in admitting the recorded interviews or in denying defendant’s two motions for mistrial based on the statements.

Defendant further argued that the trial court violated his federal and state constitutional rights to due process and to confront witnesses. Defendant did not preserve his state constitutional argument. Four of the witnesses were available for the second trial, where defense counsel cross-examined them, and the fifth witness, who was subjected to prior cross-examination, was found by the court to be unavailable to testify. Therefore, the trial court did not violate defendant’s right to confront witnesses by admitting the recorded statements.

Defendant also claimed that the trial court erred by permitting the prosecution to repeatedly refer to Hicks, a known gang member who was a defendant in an unrelated high-profile murder case. The testimony regarding Hicks was relevant to show Hicks’s relationship with defendant, a witness’s fear of testifying, and the disposal of the murder weapon. Thus, evidence of Hicks’s involvement in the case at hand was relevant and was not unduly prejudicial.

Defendant contended that the trial court erred in permitting testimony about a witness’s agreement to take a polygraph test. The trial court did not abuse its discretion in admitting testimony that a witness changed his testimony when confronted with a polygraph test when no results of the polygraph test were mentioned.

Defendant argued that the trial court violated defendant’s right to a fair and impartial jury when it denied his challenges for cause regarding two jurors. Both jurors, however, gave assurances to the court about their ability to be fair and impartial despite their concerns about gang affiliation and safety issues.

Defendant further argued that the mandatory sentence of life imprisonment without parole constituted cruel and unusual punishment and violated his rights to equal protection and due process. The Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders. Therefore, defendant’s sentence to life imprisonment was affirmed, but was vacated to the extent he was denied the possibility of parole. The case was remand to the trial court to modify the sentence by including a provision for the possibility of parole after forty years in accordance with CRS § 17-22.5-104(2)(c).

Summary and full case available here.