Colorado Supreme Court Hears Criminal Cases, Congressional Map Controversy

Ralph L. Carr Colorado Judicial Center
The Colorado Supreme Court released its opinion in People v. Hall. / Law Week file.

The Colorado Supreme Court returns for oral arguments today. The justices will hear two criminal cases, one dealing with self-defense as an affirmative defense for harassment and the other arising from a prosecutor’s remarks during closing arguments, which the defendant says led a jury to punish her for exercising her right to a trial.

This afternoon will be devoted to oral arguments over a redistricting plan adopted by the state’s Independent Congressional Redistricting Commission. Several groups and municipalities argue the map doesn’t comply with the Voting Rights Act of 1965, preserve communities of interest or meet other constitutional requirements.

Pearson v. People

The first case the justices will hear today began with a road rage incident. Tow truck driver Thomas Pearson was cut off by Timothy O’Kelly. Pearson honked. O’Kelly gave him the middle finger. Pearson tossed an air freshener at O’Kelly’s car. The two got out of their vehicles. At some point, Pearson punched O’Kelly in the face, which Pearson alleges happened after O’Kelly struck him. Pearson was arrested and charged with third-degree assault, criminal mischief and harassment.

Pearson pleaded guilty and went to trial, where he testified that he punched O’Kelly in self-defense after the man struck him. Pearson requested self-defense as an affirmative defense to harassment and assault, but the court only instructed the jury on self-defense for the assault charge and refused to do so for the harassment charge. Pearson was acquitted of assault and criminal mischief but convicted of harassment.

On appeal, Pearson argues that self-defense is an affirmative defense to harassment and the prosecution was required to prove all elements of the crime of harassment beyond a reasonable doubt. By not instructing the jury as to the harassment charge, Pearson argues, the trial court denied him his right to defend himself, lowered the prosecution’s burden of proof and violated his constitutional right to a fair trial.

However, according to the state, the intent to harass, annoy or alarm is an element of the crime of harassment, and Pearson could not intend to defend himself while at the same time intending to harass. “Therefore, he is not admitting to commission of the elements,” the state argues in its answer brief. “Mr. Pearson was not entitled to an affirmative defense instruction for the charge of harassment because the defense theory of self-defense was a traverse,” which doesn’t require separate jury instructions.

The high court will consider whether the lower courts erred in finding self-defense is not an affirmative defense to the specific-intent crime of harassment. If the justices conclude self-defense is an element-negating traverse rather than an affirmative defense, they will also consider whether the trial court should have instructed the jury.

People v. Vialpando

In the second case scheduled for today, the justices will consider whether a prosecutor’s remarks improperly directed a jury to punish a defendant for exercising her Sixth Amendment rights.

The Colorado Supreme Court will consider whether the Court of Appeals was wrong to conclude a prosecutor implicitly asked a jury to punish defendant Yolanda Vialpando for exercising her right to a jury trial. Also at issue in the case is whether the Court of Appeals erred in finding cumulative error.

Vialpando was convicted by a jury of vehicular assault, vehicular eluding, aggravated motor theft and driving under restraint. Vialpando’s ID and personal items were found inside a stolen SUV after the vehicle fled police and crashed into another car. A woman was seen running from the SUV, and a witness said she was 75% certain Vialpando was the woman who fled the scene.

During closing arguments, the prosecutor said Vialpando ran after crashing the SUV and ran from officers, and “although she is seated now, that flight continues to this moment.” The prosecution also said Vialpando’s “flight has continued up and to this point. And it ends with you.”

On appeal, Vialpando argued the comments “created an inference of guilt” regarding her decision to have a trial by jury. A division of the Court of Appeals agreed it was “improper for a prosecutor to tell the jury that the defendant should be condemned because she had the temerity to require the State to prove her guilty beyond a reasonable doubt.” The intermediate court also agreed that Vialpando’s conviction should be overturned because multiple instances of prosecutorial misconduct and evidentiary error amounted to cumulative error, which deprived her of a fair trial.

In its appeal to the Colorado Supreme Court, the state argues the prosecutor’s comments about “flight” were a rhetorical device and did not direct the jury to convict Vialpando for exercising her right to a trial. The state also argues that the Court of Appeals’ cumulative error determination was “based on a flawed application of that doctrine.”

Congressional Redistricting Challenge

This afternoon, the Colorado Supreme Court will hear oral arguments over a proposed congressional redistricting map.

Groups including the Colorado Latino Leadership, Advocacy and Research Organization and the League of United Latin American Citizens argue the final redistricting plan violates the state constitution by diluting the electoral influence of Latino voters. They also allege the Colorado Independent Congressional Redistricting Commission’s process for considering minority voting rights violated transparency requirements.

They’re not the only ones who object to the proposed congressional map. The Eagle County Board of County Commissioners argues the plan prioritizes equal population at the expense of communities of interest. Eagle County should be considered a community of interest within the same congressional district, the board argues, but the final map divides the county. Eagle County also argues the commission didn’t provide proper rationale for its decision to split up its communities.

However, the redistricting commission argues its process was transparent and complied with open meetings and records requirements. The commission also maintains its plan complies with the Voting Rights Act and Colorado Constitution.

The commission’s final map has support from Summit County and the Town of Breckenridge, which filed a brief saying the commission gave proper weight to communities of interest by grouping it with neighboring mountain counties, Boulder County and Larimer County — all of which share an interest in mitigating climate change and preserving the environment. The Douglas County Board of Commissioners also supports the map.

The Colorado Supreme Court will review the final plan and decide whether it meets constitutional requirements. The justices have until Nov. 1 to approve the map or send it back to the commission.

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