Colorado Supreme Court to Hear Oral Arguments Nov. 15, 17

A large building made of concrete has multiple windows and has large columns at the front. Near the front entrance there’s a sign that reads “Colorado Supreme Court” and “Colorado Court of Appeals.”
The Colorado Supreme Court will hear oral arguments for five cases Nov. 15 and 17. / Law Week file.

The Colorado Supreme Court will hear five oral arguments Nov. 15 and 17 on a multitude of issues including the right to counsel, a sleeping juror and due process.


Right to Counsel

Two cases being heard focus on if a public defender can be swapped out once they are appointed.

In People v. Rainey, the Colorado Supreme Court will look at whether the Sixth Amendment right to counsel of choice includes continued representation by a specific public defender once they are appointed. 

Robert Rainey appealed his conviction of second-degree kidnapping and criminal mischief, claiming the district court violated his Sixth Amendment right for continued representation when that court denied his continuance on grounds of judicial efficiency which meant he proceeded with a different public defender than his prior one, Neil DeVoogd.

The appeals court surmised an indigent defendant doesn’t have a right to select his appointed counsel, but he does have the right to continue with the counsel he has received.

The Colorado Court of Appeals reversed the judgment and remanded the case for further proceedings. 

The high court will also consider whether trial courts are required to apply and make record findings on the 11-factor test from People v. Brown when assessing a defendant’s request to continue a trial so a specific public defender can continue representing them. The Brown test includes factors like availability of chosen counsel, length of continuance necessary to accommodate the chosen counsel, and the defendant’s actions surrounding the request and motive for making the request.

Another case, People v. Davis, focuses on the same questions. William Davis appealed his conviction for vehicular eluding, reckless driving and driving under restraint. Davis made multiple arguments on appeal including the trial court improperly denied his motion for continuance. 

Davis filed a motion for continuance because his public defender had another trial set for the same date. The trial court denied his motion and the original public defender transferred the case to a colleague. Davis filed other subsequent motions regarding the issue which were also denied.

The appeals court reversed the judgment and the case was remanded so the trial court could apply the Brown factors to determine whether Davis is entitled to continued representation by his original public defender. 

Now on appeal to the Colorado Supreme Court, Davis is also asking whether or not he had the right to continued representation by his appointed counsel. 

A Sleeping Juror

Another case involves an issue with a sleeping juror. In People v. Forgette, the high court will tackle whether grounds to appeal based on a sleeping juror issue is preserved when the prosecution and defense counsel alert the trial court a juror is sleeping. 

The Supreme Court will also look at whether there is a distinction between the waiver of a right to a jury trial and the waiver of a right to a jury of 12, such that the defense can waive the number of jurors without their client’s approval. 

Finally, the court will ask whether a defendant’s right to a jury of 12 is waived when the defense counsel alerts the judge to a sleeping juror at trial but doesn’t raise an objection. 

Elliott Forgette appealed his conviction of burglary based on a juror’s inattentiveness at trial. Forgette contended on appeal that his conviction should be reversed because one of the jurors allegedly fell asleep during the evidence presentation, which deprived him of a right to a jury of 12. Forgette’s defense counsel and the court were aware that the juror allegedly fell asleep, but the defense didn’t request a remedy. 

Given the circumstances of the case, the appeals court concluded Forgette waived his claim to challenge the juror’s inattentiveness on appeal. The appeals court affirmed Forgette’s judgment.

On appeal to the Colorado Supreme Court, Forgette is asking whether the juror falling asleep deprived him of his constitutional rights to a jury trial. 

Due Process

The high court will look into a case involving due process rights and the alleged unlawful purchase of firearms.

The appeal asks whether the appeals court reversibly erred and violated a petitioner’s due process rights in affirming the conviction on a sole count of unlawful purchase of firearms when the government failed to prove the petitioner purchased a firearm for transfer to a person ineligible to have one.

It will also decide whether the court of appeals reversibly erred in holding the petitioner waived her right to challenge whether Colorado Revised Statute 18-12-111(1), the straw purchaser statute, is unconstitutionally vague on its face and unconstitutionally vague as applied to the petitioner when the defense counsel was accused of resisting the prosecutors attempt trying to define transfer to the jury.

Finally, the Supreme Court will look at an additional issue focused on whether 18-12-111(1) is unconstitutionally vague when applied to the petitioner because it doesn’t define transfer.

Sylvia Johnson appealed her conviction of unlawful purchase of a firearm under 18-12-111(1). Jaron Trujillo, described as Johnson’s common-law husband in court documents, was unable to possess a firearm and was arrested for violating a protection order barring him from Johnson’s apartment complex. At arrest, he admitted to having a gun on him and said it belonged to Johnson. Johnson purchased the gun when she and Trujillo visited a pawn shop together. Trujillo testified he knew Johnson kept the firearm in a closet.

On appeal Johnson argued against her conviction based on multiple grounds including there wasn’t enough evidence to support her conviction because a “transfer” under 18-12-111(1) requires more than providing an ineligible person access to a firearm. Another argument Johnson made was 18-12-111(1) is unconstitutionally vague. 

The appeals court affirmed concluding the transfer under 18-12-111(1) occurs when a person knowingly buys a firearm for the purpose of sharing it with an ineligible person, while also citing sufficient evidence to support Johnson’s conviction.

For more information on the oral arguments being presented in November, click here.

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