April 22, 2019

Colorado Court of Appeals: Previously Unresolved Issues Decided Against Defendant’s Position

The Colorado Court of Appeals issued its opinion in People v. Jacobson on Thursday, July 13, 2017.

Statutory DUI Affirmative Defense Instruction Not Given Sua Sponte—C.R.S. § 42-4-1301(2)(a)—Jury Instruction—Jury Questions—Invited Error.

In 2014 COA 149, the Colorado Court of Appeals reversed defendant’s conviction for failure to poll the jury about exposure to extraneous, prejudicial information. The Colorado Supreme Court reversed and remanded to the court of appeals. Before the supreme court’s mandate was issued, defendant requested that the court of appeals decide two unresolved issues, either of which could lead to reversal of the judgment of conviction entered on jury verdicts finding her guilty of vehicular homicide, driving under the influence (DUI), and other related charges arising from a collision between her truck and a taxi. The court of appeals granted the request.

Defendant first argued that the trial court erred in failing to sua sponte instruct the jury on the DUI affirmative defense of having consumed alcohol between the time she stopped driving and when her blood alcohol testing (BAC) occurred. Defendant testified at trial that she was sober when the accident occurred at about 10:30 a.m., but 15 minutes later, she drank a Vitamin Water bottle that contained one-half 99 proof schnapps. Defendant was contacted by two police officers at 10:58 a.m. She later failed a roadside sobriety test and was taken to a hospital for blood draws. The prosecution presented expert evidence that defendant’s BAC would have been .274 at the time of the accident. Defense counsel did not request the trial court to instruct the jury on the DUI affirmative defense of having consumed alcohol between the time she stopped driving and when the testing occurred.

It was undisputed that there was sufficient evidence to warrant an instruction on the affirmative defense. The prosecution argued that by proving that defendant was intoxicated at the time of the accident, it necessarily disproved the affirmative defense that defendant did not become intoxicated until a later time. As the supreme court stated in Montoya v. People, 2017 CO 40, a defense that operates solely by negating elements of the crime is disproved by the proving of those elements. Accordingly, the court found no error in the trial court’s failure to instruct the jury sua sponte on the affirmative defense.

Defendant then argued, for the first time, that a jury instruction and the court’s response to a related jury question reduced the prosecution’s burden. The instruction in question explained that “the amount of alcohol in the Defendant’s blood at the time of the commission of the offense, or within a reasonable time thereafter, as shown by chemical analysis of the Defendant’s blood or breath, gives rise to the following [listing of statutory presumptions].” During deliberations, the jury asked whether this was at or around 10:30 a.m. (the time of the accident) or at any time thereafter (on or around the time she was stopped by the police at 10:58 a.m.). Following discussion with counsel, the court answered that it could be either or both, but that any decision must be unanimous.

Defense counsel did not object to the instruction and participated in the formulation of the answer to the jury question. The Attorney General thus argued that defendant invited any error. The court declined to address the invited error argument because defendant did not argue there was an incorrect statement of the law. Defendant’s argument that the instruction encouraged conviction based on her intoxication “a reasonable time after” the accident is directly contradicted by another instruction that required the prosecution to prove that defendant had been intoxicated when the accident occurred. In addition, defendant did not show how the jury could have found her heavily intoxicated at 10:58 a.m. but not 28 minutes earlier. Defendant also did not produce evidence to contradict the prosecution’s expert that chugging alcohol at 10:45 a.m. would not explain the results of the three later blood draws, given how the body metabolizes alcohol. Finally, prior cases hold that 30 minutes after an accident is not “more than a reasonable time” afterward. Consequently, the court declined to reconsider whether the prosecution disproved the affirmative defense.

The court interpreted defendant’s last argument as raising a temporal discrepancy between the charging document and the references to “a reasonable time after” in the jury instruction and court’s response to the question. Based on the extensive colloquy on both the instruction and the court’s answer to the jury question, in which defense counsel actively participated, the court concluded any error was invited.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Self-Defense is Not Affirmative Defense to All Crimes Requiring Intent, Knowledge, or Willfulness

The Colorado Supreme Court issued its opinion in Roberts v. People on Monday, June 19, 2017.

Affirmative Defenses—Traverses—Self-Defense—Harassment.

In this case, the supreme court reviewed the district court’s order affirming petitioner’s county court conviction for harassment. Petitioner asserted that pursuant to People v. Pickering, 276 P.3d 553 (Colo. 2011), self-defense is an affirmative defense to all crimes requiring intent, knowledge, or willfulness. She thus contended that (1) she was entitled to a self-defense affirmative defense instruction to the specific intent crime of harassment, and (2) the county court’s refusal to give such an instruction constituted reversible error. Because Pickering does not establish the broad, bright-line rule that petitioner asserts and thus does not require a trial court to give a self-defense affirmative defense instruction in every case requiring intent, knowledge, or willfulness, the court affirmed the district court’s judgment.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Possession of Controlled Substance at Direction of Legal Owner Not Affirmative Defense

The Colorado Court of Appeals issued its opinion in People v. Martinez on Thursday, May 18, 2017.

Unlawful Possession—Prescription—Affirmative Defense—Prosecutorial Misconduct.

Defendant was charged with simple possession after the police found Percocet and Vicodin in her purse for which she did not have a prescription. At trial, defendant’s neighbor testified that she had prescriptions for both medications and that she had asked defendant to hold her prescriptions while they were out that evening because her purse was too small and she did not wish to leave the medications at home. A jury convicted defendant of possession and the trial court sentenced her to probation.

On appeal, defendant contended that she could lawfully possess the medications if she was “acting at the direction of the legal owner of the controlled substance,” and the trial court erred by failing to give the jury an affirmative defense instruction. The language defendant relies on in C.R.S. § 18-18-413 may present a defense to the crime of unauthorized possession of a prescribed controlled substance. However, C.R.S. § 18-18-413 is a separate offense, and it does not present an affirmative defense to unlawful possession under C.R.S. § 18-18-403.5, under which defendant was charged. Further, the trial court did not err in failing to tie the instruction to the elemental instructions given to the jury because the error would have to have been plain and obvious, which it was not. Thus, the trial court did not commit plain error by declining to adopt this construction sua sponte.

Defendant further contended that the trial court plainly erred by not giving an affirmative defense instruction based on the prescription exception in C.R.S. § 18-18-302(3)(c), which allows lawful possession by “[a]n ultimate user or a person in possession” of the medication “pursuant to a lawful order of a practitioner.” C.R.S. § 18-18-302(3)(c) is an affirmative defense to unlawful possession of a controlled substance. However, this affirmative defense did not apply to the charges against defendant because she did not have a valid prescription from a practitioner. Further, even assuming that the court erred in sua sponte failing to give this affirmative defense, such error would not be reversible error because it was not obvious and substantial.

Finally, defendant argued that the prosecutor committed reversible error by arguing that C.R.S. § 18-18-413 was not an affirmative defense to C.R.S. § 18-18-403.5 and by misstating the evidence in closing arguments. Because C.R.S. § 18-18-413 is not an affirmative defense to C.R.S. § 18-18-403.5, and the prosecutor’s statements were reasonable inferences drawn from the evidence presented at trial, the prosecutor’s arguments both during voir dire and closing argument were proper.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Affirmative Self-Defense Instruction Available for All General Intent Crimes

The Colorado Court of Appeals issued its opinion in People v. DeGreat on Thursday, July 30, 2015.

Self-Defense—Robbery—Jury Instruction—Peremptory Challenge—BatsonChallenge.

DeGreat’s criminal charges arose from an altercation with a taxi cab driver over the fare, which culminated in DeGreat stabbing and wounding the driver. DeGreat defended on a theory of self-defense. The jury found DeGreat guilty of aggravated robbery and a related crime of violence count.

On appeal, DeGreat contended that, given the unique facts presented, he was entitled to a jury instruction on self-defense as an affirmative defense to aggravated robbery. A person may use physical force to defend himself from what “he reasonably believes to be the use or imminent use of unlawful physical force” by another person. Here, evidence was presented that supported an affirmative self-defense instruction, and DeGreat successfully defended against attempted murder and first-degree assault charges on that basis. Because the robbery was intertwined with the assault, the jury could have concluded that DeGreat had the right to defend himself. The refusal to give the self-defense instruction for the charge of aggravated robbery lowered the prosecution’s burden of proof and was not harmless. Therefore, DeGreat’s aggravated robbery conviction was reversed and the case was remanded for a new trial.

DeGreat also contended that the trial court erred in denying his Batson challenge to the prosecutor’s use of a peremptory challenge to remove Juror M, an African American, from the panel [Batson v. Kentucky, 476 U.S. 79 (1986)]. In light of the prosecutor’s stated basis for the strike, which was Juror M’s reaction to self-defense questioning, the trial court did not err in finding the prosecution offered a good faith, race-neutral basis for its peremptory challenge.

DeGreat contended that the trial court plainly erred in failing to sua sponte strike testimony that DeGreat had been offered a plea bargain. DeGreat’s attorney did not make a contemporaneous objection to this testimony. Because no binding precedent clearly precludes evidence regarding plea offers, the trial court could not have been expected to sua sponte strike such unsolicited testimony.

DeGreat contended that the trial court erred in admitting recorded phone calls he placed from jail in which he attempted to solicit the victim not to appear for trial. There is no reasonable expectation of privacy in phone calls placed from jail. Furthermore, the wiretapping statute does not apply to inmate phone calls placed from jail. Thus, the trial court did not err in admitting the jailhouse phone calls.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Adverse Possession Requires Good Faith Belief of Ownership of Property for 18 Years or More

The Colorado Court of Appeals issued its opinion in People v. Gutierrez-Vite on Thursday, November 20, 2014.

Adverse Possession—Defense—Theft—Offering a False Instrument for Recording—Jury Instructions—Testimony.

This case stems from defendant’s alleged attempt to adversely possess a home in Fraser, Colorado. At all relevant times, the home was privately owned by another party, but was unoccupied and in foreclosure. Defendant filed an Affidavit of Adverse Possession with the Grand County Clerk and Recorder’s Office even though she did not own or have permission to be in the home. A jury found defendant guilty of attempted theft and two counts of offering a false instrument for recording.

On appeal, defendant contended that the trial court erred because it denied her request to present a defense based on the adverse possession statute and an affirmative defense of mistake of law based on the adverse possession statute. Under the adverse possession statute, in actions filed on or after July 1, 2008, the party claiming the title must prove, by clear and convincing evidence, that his or her possession was actual, adverse, hostile, under a claim of right, exclusive, and uninterrupted for at least eighteen years. The statute also requires that an adverse claimant establish a good-faith belief that he or she was the property’s actual owner.

Because defendant admitted that she knew the property was owned by someone else and she only possessed the property for five months, she did not meet the requirements to claim adverse possession. Because her adverse possession claim to the property fails, the adverse possession statute could not relieve her of criminal liability. Further, defendant’s mistaken belief regarding adverse possession law does not relieve her of criminal liability. Therefore, the trial court did not err in denying her request to present a defense based on adverse possession and excluding this defense from the jury instructions.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Affirmative Defense of Constitutional Right to Bear Arms Should Have Been Relayed in Jury Instruction

The Colorado Court of Appeals issued its opinion in People v. Carbajal on March 1, 2012.

Possession of a Weapon by a Previous Offender—Right to Bear Arms—Jury Instruction—Threat of Imminent Harm—Affirmative Defense.

Defendant appealed the judgment of conviction entered on jury verdicts finding him guilty of two counts of possession of a weapon by a previous offender (POWPO). The judgment of conviction was reversed and the case was remanded for a new trial.

Defendant argued that the trial court committed reversible error when it rejected his tender of the stock jury instruction regarding his affirmative defense to the POWPO charges and instead used a version provided by the prosecution, which added language concerning a reasonable belief of a threat of imminent harm. In 1876, Colorado adopted a Constitution that included a provision in its Bill of Rights establishing a right to keep and bear arms in defense of one’s home, person, and property. During the 20th century, the Colorado General Assembly enacted a statute making it unlawful for a previous offender to possess weapons.

The Colorado Supreme Court held that a defendant may raise an affirmative defense to a POWPO charge under Colo. Const. art. II, § 13, by presenting competent evidence that his or her purpose in possessing weapons was defense of home, person, and property, which language was included in the stock jury instruction proposed by defendant. Because the modified jury instruction allowed the prosecution to defeat the affirmative defense by showing that defendant did not reasonably believe in a “threat of imminent harm,” the burden of proof regarding defendant’s purpose in possessing weapons was impermissibly lowered. Because the trial court erred in modifying the stock instruction to include a “threat of imminent harm” requirement, and the modified affirmative defense instruction impacted defendant’s substantial rights, the error was not harmless.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on March 1, 2012, can be found here.