August 21, 2019

Colorado Court of Appeals: Defendant Forfeited Any Claim to Error for Failing to Object to Judge’s Spouse’s Jury Service

The Colorado Court of Appeals issued its opinion in People v. Richardson on Thursday, August 23, 2018.

Criminal LawEvidenceAttempted AssaultJudge’s Spouse as JurorDemonstrative EvidenceExpert Witness.

Sheriff’s deputies attempted to serve Richardson with an arrest warrant, which led to a police standoff. When officers deployed tear gas into the basement crawl space where Richardson was hiding, Richardson fired a gun at the police. Methamphetamine was later found on Richardson’s person. Richardson was ultimately found guilty of possession of a controlled substance, violation of bail bond conditions, two counts of attempted second degree assault, and three counts of attempted third degree assault.

On appeal, Richardson argued that there was insufficient evidence to support his convictions for attempted second degree assault and attempted third degree assault. However, the evidence that Richardson fired a gun at SWAT members while they were all in the basement was sufficient for the jury to conclude that Richardson attempted second and third degree assault against the SWAT team members.

Richardson also argued that it was reversible error for the judge to preside over a case in which his spouse was in the venire and allowed to remain on the jury. There is no Colorado statute or case that makes it an error for a judge’s spouse to serve on a jury in which the judge presides. Although it would have been prudent for the judge to excuse his spouse or to recuse himself from the case, reversal here was not warranted because the evidence was sufficient to support the conviction, and the record did not demonstrate that the jury service of the judge’s wife resulted in a fundamentally unfair trial or caused serious doubt as to the reliability of the conviction.

Richardson next argued that the trial judge incorrectly denied his challenge under Batson v. Kentucky, 476 U.S. 79 (1986), as untimely. Here, the trial court was correct in holding that the Batson challenge was untimely.

Richardson also argued that three hand-drawn diagrams were not fair and accurate representations of the alleged crime scene and thus were not admissible as demonstrative evidence. Here, the challenged exhibits were a fair and accurate representation of the alleged crime scene. Further, the judge did not unreasonably limit defense counsel’s questions on the accuracy of the diagrams where counsel had ample opportunity to highlight these purported inaccuracies during voir dire and on cross-examination.

Richardson further argued that the trial court reversibly erred in allowing the crime scene investigator to testify as an expert without being qualified as such. Even if the error was obvious, it was not substantial, and the court did not plainly err in allowing the investigator to testify, absent a contemporaneous objection, as a lay witness.

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Person Acting in Self-Defense Has No Duty to Retreat

The Colorado Court of Appeals issued its opinion in People v. Monroe on Thursday, August 8, 2018.

Criminal Law—Self-Defense—Duty to Retreat—Jury Instructions—Prosecutorial Misconduct.

Monroe boarded a city bus and sat down next to Faulkenberry. The two almost immediately began to argue. Eight to 10 minutes after the dispute began, Monroe stabbed Faulkenberry in the neck. At trial, Monroe did not testify, but her counsel asserted that Monroe had been acting in self-defense. During closing and rebuttal arguments, the prosecution made several references to Monroe’s ability to retreat from the situation. Defense counsel’s objections to these statements were overruled. The jury was formally instructed regarding the duty to retreat. Monroe was convicted of attempted first degree murder and first degree assault. The trial court adjudicated her a habitual criminal and sentenced her to concurrent prison terms of 96 years on the attempted murder count and 48 years on the assault count.

On appeal, Monroe argued that the trial court committed reversible error when it permitted the prosecution to argue that the jury should consider Monroe’s failure to retreat when deciding whether she had acted in self-defense. A person who reasonably perceives an imminent use of unlawful physical force by another may use force in defending himself or herself without first retreating and does not have to consider whether a reasonable person in the situation would choose to retreat rather than to resort to physical force in defense. Here, the prosecution raised the issue of the availability of retreat five times during its closing and rebuttal arguments, and the prosecution’s argument inappropriately imposed a duty to retreat. The trial court permitted the jury to believe that it could consider whether a reasonable person would have retreated, in direct contravention of its instruction that no such duty exists. Thus, the trial court abused its discretion. Further, although the court and the prosecutors themselves repeatedly stated that Monroe had no duty to retreat, there was a reasonable probability that the jury was misled and that the misleading arguments contributed to the verdict, so the error was not harmless.

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

Summary provided courtesy of Colorado Lawyer.