May 22, 2018

Colorado Court of Appeals: Prosecutor’s Use of Partially Completed Puzzle to Illustrate Reasonable Doubt was Misconduct

The Colorado Court of Appeals issued its opinion in People v. Van Meter on Thursday, February 8, 2018.

Criminal Law—Possession of a Weapon by a Previous Offender—Reasonable Doubt—Mistrial—Prosecutorial Misconduct—Jury Instruction—Possession—Evidence.

Van Meter pleaded guilty to multiple crimes and served time in the Department of Corrections’ custody. After Van Meter was released on parole, his employer told Van Meter’s parole officer that Van Meter had a gun in his car and was possibly using heroin and stealing from customers. When Van Meter arrived at work he was arrested, and officers found a loaded semi-automatic handgun inside a toolbox in the trunk of his car. A jury found Van Meter guilty of possession of a weapon by a previous offender (POWPO).

On appeal, Van Meter argued that the trial court reversibly erred in failing to declare a mistrial after a prospective juror stated in front of the panel that he was aware of the underlying case because he was a deputy sheriff and had transported Van Meter to court. The record supports the trial court’s determination that the challenged comments did not taint the entire panel because they did not necessarily imply that the deputy sheriff transported Van Meter to court for the underlying case rather than a previous case, and the POWPO charge required the jury to learn that Van Meter had a prior felony conviction. The trial court did not abuse its discretion in declining to declare a mistrial.

Van Meter next asserted that the trial court reversibly erred by allowing the prosecutor to show the jury a picture of a partially completed puzzle of an iconic and easily recognizable space shuttle image to explain the concept of reasonable doubt. There was no contemporaneous objection. The challenged behavior constituted prosecutorial misconduct. However, because all the elements of the POWPO charge were clearly proven, and the error was neither obvious nor substantial, the trial court did not plainly err in allowing the prosecutor’s improper conduct.

Van Meter also argued that the trial court erroneously instructed the jury on the definition of “possession” in the context of the POWPO charge. The trial court gave the definition of “possession” from the new criminal jury instructions, and defense counsel affirmatively declined to object to the challenged instruction three times. The challenged instruction was not incorrect or otherwise confusing to the extent that it constituted plain error.

Van Meter next contended that the trial court reversibly erred in allowing evidence that the gun found in his vehicle was stolen and that Van Meter was allegedly using illicit drugs. Here, defense counsel offered no contemporaneous objections and strategically chose to elicit CRE 404(b) evidence, and there was overwhelming evidence of Van Meter’s guilt. Any error in allowing the challenged evidence did not rise to the level of plain error.

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.