July 17, 2019

Colorado Court of Appeals: Invited Error Does Not Preclude Appellate Review Where Defendant Objected to Juror but Did Not Use Peremptory Challenge to Excuse Her

The Colorado Court of Appeals issued its opinion in People v. Garcia on Thursday, December 27, 2018.

Juries — Challenges for Cause — Peremptory Challenges; Appeals — Invited Error Doctrine

A division of the court of appeals considers whether appellate review is precluded by the doctrine of invited error where a trial court denies a defendant’s challenge for cause, the defendant later exhausts all her peremptory challenges, and the defendant does not use a peremptory challenge to excuse the challenged juror. The partial dissent in People v. Novotny suggests that such a result is arguably justified by these facts. 2014 CO 18, ¶ 31 (Hood, J., concurring in part and dissenting in part). Relying on Morrison v. People, 19 P.3d 668 (Colo. 2000), the division concludes that (1) a defendant is not required use a peremptory challenge against an objectionable juror in order to preserve her claim that the juror was biased and should not have participated in her trial; (2) a defendant does not take legally inconsistent positions where her challenge for cause is denied as to a particular juror but she chooses not to use her peremptory challenges to excuse that juror; and (3) where the record does not support an inference that defendant’s counsel purposely failed to use a peremptory challenge in order to preserve an issue for appeal, counsel’s failure to dismiss an objectionable juror does not demonstrate her affirmative acquiescence to the trial court’s denial of her challenge for cause. Therefore, invited error does not preclude appellate review in this case.

The division further rejects the defendant’s contention that a trial court may not deny a challenge for cause unless a juror provides unequivocal assurances that she can put aside her bias and give the defendant a fair trial. Because the trial court is in the best position to observe the juror’s credibility and demeanor, it may accept a juror’s assurances that she can act fairly even though some of her statements are ambivalent or self-contradictory.

Accordingly, the division affirms the judgment of the trial court.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Respondent Neither Waived Nor Invited Error with Respect to Simple Variance Claim

The Colorado Supreme Court issued its opinion in People v. Smith on Monday, April 30, 2018.

Invited Error—Waiver—Simple Variance—Plain Error Review.

In this case, the supreme court reviewed two issues: (1) whether respondent waived or invited error with respect to his claim of a prejudicial simple variance when his defense counsel stated that the proposed jury instructions were generally acceptable, and (2) whether a jury instruction on menacing that does not identify the particular victim named in the charging document creates a simple variance warranting reversal when the jury could potentially have deemed either of two people to be the victim.

In light of the supreme court’s opinion in People v. Rediger, 2018 CO 32, ___ P.3d  ___, the court concluded that respondent neither waived nor invited error with respect to his simple variance claim. The court thus reviewed respondent’s variance claim for plain error and concluded that because the evidence presented at respondent’s trial would not obviously have allowed the jury to find that the respondent menaced a victim not named in his charging document, the trial court did not plainly err in instructing the jury on menacing without specifying the victim.

The court reversed the court of appeals division’s judgment.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Owner-Director of Nonprofit School is Not “Public Employee”

The Colorado Supreme Court issued its opinion in People v. Rediger on Monday, April 30, 2018.

Public Employee—Invited Error—Waiver—Constructive Amendment—Plain Error Review.

This case required the supreme court to decide two questions: (1) whether the owner–director of a nonprofit school regulated by various governmental entities is a “public employee” within the meaning of C.R.S. § 18-9-110(1), and (2) whether respondent waived or invited error with respect to a constructive amendment claim when his defense counsel stated that he was “satisfied” with the proposed jury instructions, notwithstanding the fact that the elemental instruction on the charge of interference with the staff, faculty, or students of an educational institution tracked C.R.S. § 18-9-109(1)(b) rather than C.R.S. § 18-9-109(2), which was the subsection charged in the information.

As to the first question, the court concluded that “public employee” means an employee of a governmental entity, and therefore an employee of a nonprofit school is not a public employee. Accordingly, the court agreed with the court of appeals division’s decision that respondent’s conviction for interference with a public employee in a public building cannot stand.

As to the second question, the court concluded that respondent neither waived nor invited error with respect to his constructive amendment claim because the record does not indicate that he or his counsel either intentionally relinquished a known right or deliberately injected the erroneous jury instruction as a matter of trial strategy. The court instead construed respondent’s general acquiescence to the instructions as a forfeiture and, reviewing for plain error, concluded that the constructive amendment of respondent’s charging document constituted plain error necessitating a new trial.

The court affirmed in part and reversed in part the court of appeals division’s judgment.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Reversal Required if Alternate Juror Present During Deliberations

The Colorado Court of Appeals issued its opinion in People v. Riley on Thursday, May 19, 2016.

D.M. saw a man masturbating in the alley behind her house. She saw him again in a different location when she went to pick up her daughter from preschool, and stopped at the Weld County Sheriff’s Office to report the incident. When she returned home, he was still masturbating outside her house, so she called 911. Defendant was arrested and put in the back of the patrol car with handcuffs fastened in front of him. While transporting him, the deputy heard the sound of clanking metal and pulled over. She lifted up defendant’s shirt and saw flesh in the open V in the crotch of his pants.

Defendant was charged with and convicted of indecent exposure (third or subsequent offense) and two counts of public indecency. He appealed, asserting numerous contentions of error. The court of appeals first found that by requesting the lesser non-included offense of public indecency, defense counsel invited error and could not complain that the evidence was insufficient to support the charge. The court of appeals found that defense counsel’s strategic request precluded a contrary argument on appeal.

Next, defendant argued that the trial court erred by failing to instruct the jury on the definition of “public place.” The court of appeals found that defense counsel waived any objection by agreeing to the jury instructions. The court also disagreed with defendant’s argument that the prosecutor committed misconduct by referring to the victim’s honesty. The court did not find the prosecutor’s remarks improper.

Defendant next contended that the alternate juror was present for deliberations and therefore he was entitled to a new trial. The court of appeals found the record inconclusive as to whether the alternate was present during deliberations, and remanded for an evidentiary hearing to determine whether the alternate was present. If the alternate was present, the court of appeals instructed the trial court to vacate the convictions and hold a new trial. If the alternate was not present, there was no error.