Editor’s Note: Law Week Colorado edits court opinion summaries for style and, when necessary, length.
The Colorado Supreme Court en banc unanimously vacated in part and affirmed in part a judgment involving an alleged sleeping juror.
Elliott Forgette was charged with second-degree burglary of a dwelling, a class 3 felony. On the second day of trial, during a sidebar, the prosecutor mentioned juror seven was allegedly asleep. Later that day, the defense told the bench juror seven was allegedly asleep. At no time during these bench conferences did any party object to the alleged sleeping juror, nor did any party request the court take any action for that juror other than during the second conference to try and rouse him.
Neither party nor the court mentioned juror seven again after those conferences. Forgette was convicted of second-degree burglary, with juror seven voting to convict. Forgette was sentenced to 12 years with the Department of Corrections.
Forgette appealed and argued juror seven allegedly slept during the presentation of some of the evidence, which deprived Forgette of a 12-person jury and mandated reversal. Forgette contended he properly preserved the objection because the matter was brought to the court’s attention.
The Colorado Court of Appeals affirmed Forgette’s conviction and sentence, finding he waived his right to challenge the juror’s alleged inattentiveness on appeal. Initially, the appeals court concluded the defense counsel’s comment that the juror was allegedly asleep during the trial, without specific objection or a request for remedy, didn’t present the trial court with anything to rule on, and it was insufficient to preserve the issue.
The question then became whether Forgette waived the unpreserved issue, which would render it unreviewable on appeal. The appeals court noted it had to determine whether the issue was a personal right Forgette himself was required to waive or if the defense counsel could waive the issue on his behalf.
The appeals court drew a distinction between the right to a jury trial, which the appeals court concluded wasn’t implicated in this case, and the right to a jury of 12, which the appeals court suggested was implicated. The appeals court found the right to a jury trial is personal for the defendant, and only they could waive that right. The right to a jury of 12, however, could be waived by either the defendant or his counsel, according to the appeals court.
The appeals court also opined when the defense counsel requested no relief for the alleged sleeping juror, the counsel waived Forgette’s right to appellate review of whether Forgette was deprived of his right to a 12-person jury.
Multiple questions were presented to the Colorado Supreme Court on Forgette’s appeal, but the high court focused on whether an objection to an alleged sleeping juror is preserved when the parties noted the juror was allegedly sleeping but didn’t request action from the court.
The Colorado Supreme Court found the defense counsel didn’t properly preserve an objection to the alleged sleeping juror merely by noting the juror was allegedly asleep without objecting or otherwise requesting any action from the court. The high court further concluded when the counsel is aware of all the facts and doesn’t preserve the objection to the alleged sleeping juror, the objection is waived, precluding appellate review.
The Colorado Supreme Court vacated portions of the appeals court’s opinion that opined on matters related to Forgette’s right to a jury of 12, but otherwise affirmed the appeals court’s judgment. The portion of the appeals court opinion opining there’s a distinction between the waiver of the right to a jury trial and waiver to a right to a jury of 12 and a defense counsel can waive a defendant’s right to a jury of 12 on the defendant’s behalf, were vacated by the Colorado Supreme Court.
People v. Kembel and People v. Dexter
The Colorado Supreme Court en banc made a rule absolute in two cases involving felony driving under the influence and bifurcation.
In the spring of 2021, a traffic stop was initiated on Timothy Kembel for allegedly violating the speed limit. The deputy noticed an indication of drug intoxication. Kembel was arrested for DUI. Kembel had three prior convictions for DUI or driving while ability impaired, and Kembel was charged with a felony DUI. Kembel pleaded not guilty.
In the fall of 2020, Kerrie Dexter was stopped by police for allegedly driving with defective headlights and brake lights. At the traffic stop, the officer observed an indication of alcohol and drug intoxication. Dexter was arrested for DUI. Dexter had four prior convictions for DUI or DWAI, and she was charged with felony DUI. Dexter pleaded not guilty.
Before the jury trial, Kembel filed a motion to bifurcate and asked the element of prior convictions be tried separately from and subsequent to the other elements of felony DUI. The district court granted the motion in an oral ruling. Prosecutors then received a continuance to file a C.A.R. 21 petition in the Colorado Supreme Court.
After the oral ruling in Kembel’s case, Dexter filed a motion to bifurcate, which resembled Kembel’s motion. The district court orally granted Dexter’s motion. Again prosecutor’s received a continuance to file a C.A.R. 21 petition in the Colorado Supreme Court. Dexter and Kembel’s cases were in front of the same district court judge.
The district court followed up by simultaneously issuing an order in Kembel’s case that clarified and supplemented the earlier oral ruling in his case and issued an almost identical order in Dexter’s case that provided the rationale for the earlier oral ruling in that case.
The Colorado Supreme Court said the question presented is whether a jury trial for felony DUI can be conducted piecemeal, with the element of prior convictions tried separately, only after a jury returns a guilty verdict on the other elements. The district court’s analysis indicated that under Colorado law, there’s no clear or binding precedent to prevent bifurcation of prior convictions in felony DUI trials.
The current Colorado Supreme Court cited a previous state high court decision in People v. Fullerton from 1974, which answered a similar question in the negative in the context of possession of a weapon by a previous offender.
The Colorado Supreme Court said in the current cases it stands with Fullerton holding a trial court cannot bifurcate the elements of the offense of felony DUI — or any other offenses — during a jury trial. The Colorado Supreme Court made absolute the rules to show cause it issued in the two cases. The high court concluded the district court erred in ordering bifurcation in the two cases and remanded for further proceedings consistent with the opinion.
Justices Richard Gabriel, William Hood and Melissa Hart dissented.
“Although I have great faith in juries in our system of justice, it belies reality to suggest that a person charged with a felony DUI will receive a fair trial when the jury hears about their three (or more) prior convictions of the same charge,” Gabriel wrote. “To the contrary, the majority’s opinion dramatically increases the likelihood of—and indeed virtually assures—convictions in felony DUI cases because, in my view, even the most diligent and responsible jurors will not be able to set aside in their minds (or limit their consideration of) the fact that a defendant has already been convicted multiple times of the same offense.”
The Colorado Supreme Court en banc discharged a rule involving a preliminary hearing in an identity theft case.
John Hacke was charged with identity theft, a class 4 felony. Hacke faced a mandatory prison sentence because he had a prior conviction for identity theft.
Hacke posted bond after his arrest. During a subsequent court appearance, Hacke asserted he was entitled to a preliminary hearing because he faced mandatory sentencing. Since prosecutors didn’t initially take a definitive position on the contention, the court scheduled a preliminary hearing. The court allowed prosecutors an opportunity to object to a preliminary hearing if it was warranted.
Later the court ruled Hacke wasn’t entitled to a preliminary hearing because identity theft under Colorado Revised Statute 18-5-902(1)(a) didn’t require mandatory sentencing but acknowledged no direct authority on the point. The lower court drew guidance from a previous Colorado Supreme Court ruling from 1975 in Maestas v. District Court, where the high court held habitual criminal counts are sentence enhancers, not substantive offenses, and don’t need to be established at a preliminary hearing.
Hacke filed a petition with the Colorado Supreme Court invoking its original jurisdiction. The high court determined Hacke wasn’t entitled to a preliminary hearing. The Colorado Supreme Court said since Hacke isn’t accused of class 4, 5 or 6 felonies that required mandatory sentencing, he doesn’t have a right to a preliminary hearing.
The high court wrote Hacke’s criminal history would subject him to mandatory sentencing if convicted is of no moment. The Colorado Supreme Court found the relevant inquiry isn’t whether Hacke’s criminal history subjects him to mandatory sentencing if he’s convicted of identity theft; it’s whether identity theft, the class 4 felony he’s accused of committing, required a mandatory sentence. The high court concluded class 4 felony identity theft doesn’t require a mandatory sentence.
The Colorado Supreme Court found the district court was correct, ruling Hacke isn’t entitled to a preliminary hearing. The high court discharged the rule to show cause.
Justices Hood, Gabriel and Monica Marquez dissented.
“Because the statute, this court’s precedent, and practical considerations militate in favor of simply holding that a defendant is entitled to a preliminary hearing on a class 4, 5, or 6 felony whenever the felony statute at issue contains a sentencing provision requiring incarceration, I respectfully dissent,” Hood wrote.