Colorado Supreme Court Grants Petition in Double Jeopardy Case

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The Colorado Supreme Court granted four petitions for writ of certiorari April 17 including one connected to double jeopardy. / Law Week file.

The Colorado Supreme Court granted four petitions for writ of certiorari April 17 including one connected to a double jeopardy appeal.

According to a Colorado Court of Appeals opinion from 2022, Taunia Whiteaker got into an argument with her stepdaughter A.W. who was then told by her father J.W. to go to her grandmother L.W.’s house. Whiteaker couldn’t confront A.W. at L.W.’s house because Whiteaker wasn’t welcome there, according to court records.


Whiteaker later drove to L.W.’s house and entered through an unlocked door. L.W. asked Whiteaker to leave and a physical confrontation occurred between them. J.W. intervened and during the struggle, Whiteaker punched him two or three times, according to court records.

Whiteaker was charged with second-degree burglary, first-degree criminal trespass, third-degree assault and harassment. A jury convicted Whiteaker of the charged offenses.

On appeal, Whiteaker contended the trial court violated her right against double jeopardy by failing to merge her conviction of first-degree criminal trespass with her conviction for second-degree burglary. The appeals court affirmed the judgment.

According to the opinion, the Colorado Supreme Court directly addressed the issue in the 1997 case People v. Garcia, holding first-degree criminal trespass isn’t a lesser included offense of second-degree burglary. 

In the appeals court opinion, Judge Eric Kuhn specially concurred. Kuhn disagreed with the majority’s finding that first-degree criminal trespass isn’t a lesser included offense of second-degree burglary, arguing Garcia isn’t directly controlling because it was decided under a prior version of the strict elements test. Kuhn believed the appeals court should apply the strict elements test that came forward in the 2017 Colorado Supreme Court decision in Reyna-Abarca v. People

Kuhn explained he would affirm Whiteaker’s convictions for first-degree criminal trespass and second-degree burglary for different reasons and he concurred in the judgment.

The majority argued the Colorado Supreme Court never expressly overruled Garcia and it must adhere to the precedent. Kuhn agreed that Garcia had never been explicitly overruled and the Colorado Supreme Court alone can overrule its prior precedents for state law.

“However, when read in context, I believe that Garcia articulated this holding as an outcome of the strict elements test in effect at the time,” Kuhn wrote. “In my view, because the supreme court has since clarified the strict elements test, Garcia’s holding should not be read for the broad proposition that first degree criminal trespass is not a lesser included offense of second degree burglary under current controlling supreme court precedent.” 

The question related to Whiteaker’s case before the Colorado Supreme Court focuses on whether the clarified elements test in Reyna-Abarca repealed the holding of Garcia.

Petitions for a writ for certiorari were granted in three other cases April 17. One involved the determination of whether a child is an Indian child. Another involved the substitution of an alternate juror and the final case is connected to the enticement of a child statute.

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