August 24, 2019

Annual Update to Colorado Model Criminal Jury Instructions Released

On Tuesday, January 29, 2019, the Colorado State Judicial Branch announced the release of the Colorado Supreme Court’s annual update to the Model Jury Instructions for Criminal Trials. The update incorporates new legislation and published case law that has been announced since the last update. The update includes revisions to the instructions concerning complicity and judicial notice.

The Model Jury Instructions for Criminal Trials are available here for download in PDF and Microsoft Word format. For questions concerning the Model Jury Instructions for Criminal Trials, email the committee.

Colorado Court of Appeals: Supreme Court’s Complicity Reasoning in Rosemund Does Not Apply to Colorado’s Complicity Statute

The Colorado Court of Appeals issued its opinion in People v. Sandoval on Thursday, November 15, 2018.

Criminal Law—Complicity—Jury Instructions—Demonstrative Evidence—Partial Reconstruction—Prosecutorial Misconduct.

Brown agreed to sell her friend Goggin five pounds of marijuana, which he intended to sell to Sandoval. Brown delivered the marijuana to Goggin and his girlfriend. Sandoval arrived, accompanied by his cousin Palacios. Sandoval, Palacios, and Goggin each had guns, and after a struggle Goggin was fatally shot. Palacios grabbed the marijuana and ran to the vehicle outside where Sandoval was waiting. Sandoval was found guilty of one count of murder in the first degree, one count of aggravated robbery, two counts of accessory to crime, and one count of felony menacing.

On appeal, Sandoval contended that the trial court violated his constitutional right to due process when it declined to instruct the jury in accordance with Rosemond v. United States, 572 U.S. 65 (2014), that an alleged felony murder complicitor must know in advance of the occurrence of the predicate felony that another participant intends to commit. Sandoval alleged that, because he was unaware of his cousin’s intent to rob and kill Goggin before the crimes occurred, he was not guilty of robbery and felony murder. However, Rosemond relied on language in the federal aiding and abetting statute that is not present in Colorado’s complicity statute; thus Rosemond does not apply to Colorado’s complicity statute, and Sandoval’s due process rights were not violated.

Sandoval also asserted that the trial court violated his constitutional rights to a fair trial and impartial jury when it allowed the prosecutor to use a partial reconstruction of the crime scene as a demonstrative aid to assist witnesses in explaining their testimony. Here, (1) the partial reconstruction was authenticated by the prosecution’s criminalist; (2) the demonstrative aid was relevant because it assisted the jury in understanding Brown’s testimony; and (3) though the prosecution conceded that there were discrepancies in the partial reconstruction, those discrepancies were disclosed to the jury and Sandoval had an opportunity to cross-examine the prosecution’s criminalist about them. Thus, the trial court did not abuse its discretion in determining that the reconstruction was a fair and accurate representation of the crime scene. Further, the trial court did not abuse its discretion in finding that the probative value of the partial reconstruction was not substantially outweighed by its danger of unfair prejudice. Sandoval’s rights were not violated.

Sandoval further alleged that the prosecutor committed misconduct by misstating the law of complicity as well as key evidence to undermine the defense. The prosecutor’s statements were fairly based on the evidence presented and the inferences drawn were not inappropriate. There was not improper conduct that would warrant reversal.

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Defendant Entitled to At Least a Hearing on Ineffective Assistance Claims

The Colorado Court of Appeals issued its opinion in People v. Hunt on Thursday, June 16, 2016.

Postconviction Relief—Ineffective Assistance of Counsel—Transferred Intent—Complicity.

Defendant was charged with first degree “after deliberation” murder, first degree “extreme indifference” murder, conspiracy to commit murder, possession of a weapon by a previous offender, and three crimes of violence (sentencing enhancement) counts. Under a plea agreement, defendant pleaded guilty to an added count of second degree murder and to one of the original crime of violence counts in exchange for (1) the dismissal of the remaining charges and (2) a stipulated sentence of between 30 and 40 years’ imprisonment.

Defendant later wrote two letters to the district court asking to withdraw his guilty plea. He asserted that he was not guilty of murder because he had not intended for the shooter to kill the victim and his attorney had erroneously advised him that he could, if tried, be found guilty and sentenced to life imprisonment under a complicity theory. Plea counsel then filed a motion to withdraw from the case based on an alleged conflict of interest and asked the court to allow defendant to withdraw his guilty plea. Following a hearing, the court found no conflict of interest and directed counsel to file a Crim. P. 32(d) motion to withdraw guilty plea on behalf of defendant. Counsel filed the motion three days later. The court did not address the motion and sentenced defendant to 40 years’ imprisonment.

Defendant subsequently filed two pro se Crim. P. 35(c) motions for postconviction relief based on ineffective assistance of plea counsel, again alleging that he had been incorrectly advised that he could be found guilty of murder as a complicitor simply because he was present when a person he had not intended to be killed was killed. The court appointed new counsel who expounded on defendant’s claims, and the court, without a hearing, denied the motions for postconviction relief.

On appeal, defendant argued that he was entitled to a hearing on his ineffective assistance of counsel assertions, and the Court of Appeals agreed. An ineffective assistance of counsel claim requires a defendant to establish that counsel’s performance fell below the level of reasonably competent assistance demanded of attorneys in criminal cases and that the deficient performance prejudiced the defense. A hearing is required unless the record establishes that the allegations, if proven true, would fail to establish either of these conditions. Here, defendant argued that he was not aware that the shooter intended to kill someone other than a person whom defendant wanted to kill. If true, these facts would not support a conviction for first or second degree murder under a complicitor theory, and failure to advise defendant of this could have constituted deficient performance on the part of plea counsel. Because there was no hearing to determine what plea counsel advised defendant and what the professional norms were, or whether defendant would have pleaded guilty anyway, the case was remanded for an evidentiary hearing on this issue. Remand is also necessary for an evidentiary hearing on defendant’s claim that plea counsel was ineffective for failing to advise him about appealing the ruling denying his Crim. P. 35(c) motion to withdraw the guilty plea.

The order was reversed and the case was remanded.

Summary provided courtesy of The Colorado Lawyer.