July 21, 2019

Colorado Court of Appeals: Absence of Defendant During Allen Instruction May Have Prejudiced Jury

The Colorado Court of Appeals issued its opinion in People v. Payne on Thursday, July 3, 2014.

Allen Instruction—Constitutional Right—Jury Deliberations—Evidence—Theft—Value.

V.V.’s home was burglarized while he and his family were away. A neighbor, who had observed part of the burglary, reported that she had noticed a car parked near V.V.’s house. Four days after the burglary, police officers pulled over defendant and noticed that the vehicle he was driving matched the description the neighbor had given to the police. Defendant was subsequently found guilty of second-degree burglary and theft.

On appeal, defendant contended that his right to be present at his trial was violated when the trial court delivered a “modified Allen instruction” to the jury in his absence during jury deliberations and against his counsel’s objection. Because of the psychological influence his absence or presence may have on the jury, a defendant has a constitutional right to be present when a modified Allen instruction is read to a deadlocked jury. Therefore, the Court determined that defendant’s constitutional right was denied. Because the People failed to carry their burden of proving beyond a reasonable doubt that there was no possibility that defendant was prejudiced by his absence when the court read the instruction, defendant’s convictions were reversed.

Defendant also contended that the evidence was insufficient to support his conviction of theft of property valued between $1,000 and $20,000. V.V.’s testimony that the digital camera and video camera were worth a total of $780 was sufficient evidence of value for those items. However, V.V.’s testimony that the television cost $1,400 could not support an inference that the purchase price of the television was comparable to its fair market value at the time the offense was committed. Accordingly, the evidence was insufficient to sustain a conviction of class 4 felony theft of property valued between $1,000 and $20,000. The judgment was reversed, defendant’s sentence was vacated, and the case was remanded with directions.

Summary and full case available here.

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