Editor’s Note: Law Week Colorado edits court opinion summaries for style and, when necessary, length.
The Colorado Court of Appeals vacated a man’s conviction for disarming a police officer after finding a baton isn’t a weapon included in state statute for disarming an officer.
Montrose police officers in May 2018 chased Jerimiah Tomaske into his home while investigating a reported car theft. The officers pinned Tomaske to the floor, face down and, while struggling against the officer, Tomaske removed a police baton from his belt and grabbed, but didn’t unholster his gun. A trial court convicted him with disarming a peace officer and attempting to disarm a peace officer.
On appeal, Tomaske argued, among other things, that a police baton doesn’t fall under Colorado Revised Statute 18-8-116(1), which criminalizes disarming a peace officer.
The Colorado Court of Appeals agreed, but rejected his other arguments which asked it to overturn his attempt to disarm conviction.
At trial, Tomaske raised a similar argument about the baton, but the court concluded that a baton falls into “same general grouping” as a “firearm or self-defense electronic control device, direct-contact stun device or other similar device,” defined in state statute.
Looking at the Colorado legislature’s intent, the Colorado Court of Appeals ruled that “other similar device” doesn’t include batons. Since “or” is used between firearms and the other devices, the legislature intended to separate firearms from other categories of weapons, the court found. Therefore, the court found, the “or other similar device” was meant to be differentiated from the electronic control devices and direct-contact stun devices. A baton would not fall into this category, the court found.
This interpretation is supported by the principle of ejusdem generis, the court added, which means that when words come after two or more things, the words only apply to the same general class or kind mentioned earlier.
The court rejected the interpretation by prosecutors that “other similar device” means any weapon carried by an officer in their course of duty since that interpretation doesn’t account for the word “similar” and doesn’t fall in line with the legislature’s intentions.
Rejecting his other appeals, the Colorado Court of Appeals reversed Tomaske’s conviction for disarming a peace officer but affirmed his attempted disarming conviction.
While investigating an emergency dispatch call, officers came across the defendant in this case, named in court documents as E.V., with another person who previously had negative interactions with law enforcement. The person fled, but E.V., who was a juvenile at the time, stayed.
E.V. didn’t comply with officer orders to sit down and didn’t speak with them. The officers forced him to sit down, began handcuffing him and grabbed E.V.’s drawstring bag. Through the bag, an officer felt a handgun and searched the bag, confirming that it contained a gun.
Prosecutors filed a petition of delinquency against E.V. for possession of a handgun by a juvenile. E.V. argued the officer lacked reasonable suspicion to detain him and filed a motion to suppress discovery of the handgun. A magistrate denied the motion to suppress and E.V. was adjudicated delinquent.
By sentencing, E.V. had turned 18 and the magistrate ruled that mandatory sentencing required he serve at least five days of detention. Since he was over 18, the magistrate sentenced him to time in jail to be stayed after the completion of appeals.
E.V. petitioned a district court arguing that the magistrate erred in not suppressing the handgun evidence and imposing the five day jail sentence. The district court affirmed and E.V. appealed with the same arguments.
Looking at the lower court’s fact findings, the Colorado Court of Appeals found that the gun evidence suppression was not necessary. The Court of Appeals found the officers met the three conditions required of investigatory stops: reasonable suspicion that the individual has committed or is about to commit a crime, the purpose of the detention is reasonable and the detention is reasonable in light of the purpose.
The Court of Appeals next turned to the statutes the magistrate used to impose E.V.’s sentence. E.V. argued that since he was 18 when the sentence was imposed, the five day mandatory sentence in Colorado Revised Statutes Section 19-2-911(2) didn’t apply to him. He also argued that, even if the statute applied to him, it only authorized a sentence of “detention” which he couldn’t be sentenced to since he was over 18.
The Colorado Court of Appeals rejected the first argument, finding “juveniles” can be people under 18 or people over 18 who are still under court jurisdiction for a delinquent act committed while they were still a child. E.V. fell into this second category, it found, and therefore C.R.S. Section 19-2-911(2) applied to him.
The court agreed with E.V.’s second argument, however, that the court couldn’t sentence him to detention after he was 18. Section 19-1-103(40) defines detention as the temporary care of a child, rather than a juvenile. Child has a different definition than juvenile, the Court of Appeals ruled, and since he was over 18, E.V. couldn’t be detained.
The Colorado Court of Appeals reversed the magistrate’s sentence and remanded the case for resentencing by the district court.
In 2020, the Colorado Supreme Court adopted a rule that allows a trial court to declare mistrial if a public health crisis prevents a fair jury pool from being put together. The Court of Appeals held that this rule doesn’t violate the separation of powers doctrine.
William Eason was convicted by a jury of menacing after an incident with two of his siblings in Boulder. The day Eason’s trial was set to start in March 2021, the district court declared a mistrial under the Colorado Supreme Court rule adopted in light of COVID-19. The court reset Eason’s trial for June, but his counsel objected and moved to dismiss the case since he was prepared for the March trial. By adopting the public health mistrial rule, Eason’s counsel argued, the Colorado Supreme Court “usurped the power of the legislature and the executive branches of government,” and a fair jury pool could have been put together for Eason’s March trial since the court could’ve limited the number of courtrooms for trials.
On appeal, Eason argued that the lower court erred in declaring a mistrial because the state Supreme Court’s order violated separation of powers and the court didn’t sufficiently justify declaring a mistrial since a safe trial could’ve been held on the original date.
Finding that the Court of Appeals can review a rule of the state Supreme Court, the court looked at the constitutionality of the public health mistrial rule. The separation of powers doctrine requires that the powers of three branches of the government are separate. The Colorado judicial branch has the power to make rules over court administration, including over practice and procedure of criminal and civil cases. This power of the judicial branch has been upheld and acknowledged by the state’s legislative branch, the Colorado Court of Appeals found.
Concluding that the COVID-19 mistrial rule falls into this category of administrative rules, the Colorado Court of Appeals found it didn’t violate the separation of powers doctrine. Even if there is an aspect of public policy in the rule, it didn’t conflict with expression of public policy by Colorado’s legislative or executive branches, the court added. On his second argument, the Colorado Court of Appeals found that the trial court did in fact make specific findings about the COVID-19 pandemic to justify declaring a mistrial. The findings about COVID-19 and public health applied to Eason’s case, the court held, and on appeal he didn’t explain why the general findings about public health didn’t apply to him.
A second appeal from Eason focused on multiple discovery violations made by prosecutors. During trial, Eason’s counsel filed a motion to dismiss the case after body camera footage from one officer who interviewed the victims in the case was accidentally destroyed. The trial court denied the motion.
On appeal, Eason argued that in destroying potentially exculpatory evidence, which was his only way to cast doubt on the credibility of key witnesses, his due process was violated. The Court of Appeals found that Eason didn’t establish the evidence could’ve been exculpatory before it was destroyed and, since there was other body camera footage as well as written statements by the officer, the deleted footage wasn’t the only potentially exculpatory evidence. The Court of Appeals rejected this argument as well.
In a special concurrence, Judge Lino Lipinsky wrote to emphasize that the court’s decision “does not mean a law enforcement agency’s repeated, systematic destruction of evidence can never violate a defendant’s due process rights.” When evidence that can cast doubt on a witness’ credibility and is therefore key to a defense is destroyed, it can impact the outcome of a trial significantly. In this case, Lipinsky wrote, the evidence was destroyed but not in bad faith. “The courts will not tolerate a law enforcement agency’s systemic failure to comply with its document retention policy or any other retention requirement imposed by law,” he added.