January 16, 2019

Colorado Court of Appeals: Entry of Charge Based on Jury’s Special Interrogatory Answers Violated Defendant’s Constitutional Right to Jury Trial

The Colorado Court of Appeals issued its opinion in People v. Oliver on Thursday, October 4, 2018.

Criminal Law—Possession of a Weapon by a Previous Offender—Right to Jury Trial—Waiver.

Defendant was tried on two felony menacing charges. Before trial, the parties agreed to bifurcate a possession of a weapon by a previous offender (POWPO) count. However, near the end of the trial, defense counsel agreed with the court’s suggestion of using a special interrogatory on possession instead of having a separate trial on the POWPO count after the jury returned its verdict on the menacing counts. Counsel also stipulated that defendant was a previous offender. The jury was not instructed on the POWPO charge. The jury acquitted defendant on one count and hung on the other. Based on the stipulation and the jury’s “yes” answer to the special interrogatory that asked whether defendant had possessed a firearm, the trial court entered a judgment of conviction for POWPO.

On appeal, defendant argued that the trial court directed a verdict on the POWPO charge in violation of his federal and state constitutional rights to a jury trial, which he did not personally waive. To return a verdict, a jury must have been instructed on the offense. Here, even if counsel stipulated to the prior offender element, defendant did not personally waive his right to have the jury return a verdict on the POWPO charge, and the trial court never told the jury that it was deciding the POWPO charge. Therefore, the judgment of conviction on the POWPO charge violated defendant’s constitutional right to a jury trial.

The judgment was reversed and the case was remanded for a new trial on this charge.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Deferred Juvenile Adjudication Not Predicate Felony Offense for POWPO Purposes

The Colorado Court of Appeals issued its opinion in People in Interest of A.B. on Thursday, November 17, 2016.

A.B., a juvenile, was the rear driver’s side passenger in a parked car when police blocked the car due to a noise violation from the car’s loud stereo. All three of the vehicle’s occupants exited when the police arrived, and an officer saw A.B. pull a gun from his waistband and throw it into the car. He was charged with possession of a weapon by a previous offender (POWPO) based on a prior incident in which A.B. accepted a deferred adjudication on a charge of aggravated motor vehicle theft in the first degree, a felony.

Before trial, A.B. moved to suppress the weapon, arguing the search was unconstitutional because when police officers ordered him to get back in the car, they seized him but lacked reasonable suspicion to do so. The trial court denied the motion to suppress based on the officer’s testimony that he saw A.B. throw the gun into the car. The officer presented the same testimony at trial. When the prosecution rested, A.B. moved for judgment of acquittal, arguing the deferred adjudication did not constitute a prior adjudication for POWPO purposes. The court denied his motion, and A.B. was convicted and sentenced to two years in youth corrections.

On appeal, A.B. argued the trial court erred in denying his motion to suppress. The court of appeals disagreed. The court declined to reach the constitutional issue of whether the encounter was a seizure for Fourth Amendment purposes, and instead found that the officers had reasonable suspicion that every person in the vehicle was violating the Denver Municipal Code’s noise ordinance. Therefore, the court found that the officers had reasonable suspicion to seize A.B. based on a violation of the noise ordinance.

A.B. next argued that his deferred adjudication was not a predicate felony for POWPO purposes. The court of appeals agreed. The court analyzed the POWPO statute applicable to juveniles, C.R.S. § 18-12-108(3), and found no reference to deferred adjudications. A.B. relied on the plain statutory language in arguing that because he accepted a deferred adjudication, he was not actually adjudicated at the time of the POWPO offense. The Attorney General analogized the juvenile statute to its adult counterpart, relying on cases interpreting “conviction” to include deferred judgments. The court of appeals analyzed the juvenile delinquency statutes and found that they distinguished deferred adjudications from adjudications of juvenile delinquency both as to definition and effect. The court found that the General Assembly expressly equated deferred adjudications to delinquency adjudications in several instances, evidencing an intent to separate the two definitions. The court found that A.B.’s deferred adjudication was not a predicate offense for POWPO purposes.

The court of appeals affirmed the denial of the suppression order, reversed the adjudication, vacated the sentence, and remanded for entry of judgment of acquittal.

Colorado Supreme Court: In POWPO Case, No Error to Give Jury Choice of Evils Instruction Requiring Reasonableness and Imminence

The Colorado Supreme Court issued its opinion in People v. Carbajal on Monday, June 30, 2014.

Colo. Const. art. II, § 13—Right to Bear Arms—Possession of a Weapon by a Previous Offender—Choice of Evils—Jury Instructions—Affirmative Defense.

Reversing the court of appeals, the Supreme Court held that the trial court did not err in instructing the jury that, to raise an affirmative defense to possession of a weapon by a previous offender (POWPO), defendant must show that he possessed the weapon for the purpose of defending himself, his home, or his property from what he reasonably believed to be a threat of imminent harm. This instruction properly reflects the Court’s precedent in People v. Blue, 544 P.2d 385, 391 (1975), which upheld the POWPO statute against a claim that it unconstitutionally infringed on the right to bear arms under Colo. Const. art. II, § 13, based on the legislature’s provision of a choice of evils affirmative defense. Because the choice of evils defense includes both a reasonableness and imminence requirement, the trial court did not err in including these requirements in its instruction.

Summary and full case available here.