Editor’s Note: Law Week Colorado edits court opinion summaries for style and, when necessary, length.
The Colorado Supreme Court en banc reversed a judgment related to the Fifth Amendment.
According to the Colorado Supreme Court opinion, there is reason to believe Nora Rios-Vargas didn’t commit the burglary she was charged with. At trial, Rios-Vargas argued the crime was committed by a nonparty alternate suspect, Sylvia Villalobos.
Despite the strong connection between Villalobos and the burglary that Rios-Vargas’ defense hinged on, according to the high court, the jury wasn’t allowed to see or hear from Villalobos. The trial court accepted Villalobos’ blanket invocation of her Fifth Amendment right against self-incrimination and ruled she couldn’t be called to the stand. The lower court also prohibited the defense counsel from informing the jury why Villalobos didn’t testify.
According to the opinion, as a result of this decision prosecutors told two conflicting narratives. Before the judge, prosecutors argued Villalobos’ connection to the crime was so strong that any testimony she gave would be incriminating. To the jury, however, prosecutors argued the alternate suspect theory was “imaginary and speculative.”
A jury convicted Rios-Vargas of second-degree burglary and the Colorado Court of Appeals affirmed. The appeals court held the trial court erred in accepting Villalobos’ blanket invocation of her Fifth Amendment privilege and should have conducted a hearing outside the presence of the jury to determine the propriety of Villalobos’ assertion. But the appeals court concluded the error was harmless.
The Colorado Supreme Court granted review to decide whether a defendant can call a nonparty alternate suspect to the witness stand who intends to assert their Fifth Amendment privilege against self-incrimination and, if not, what the jury can be told about the alternate suspect’s failure to appear.
The Colorado Supreme Court revisited one of its cases from 1976, People v. Dikeman, which overruled O’Chiato v. People from 1923. In O’Chiato, the Colorado Supreme Court reasoned the privilege against self-incrimination is an option of refusal, not a prohibition of inquiry, thus while a witness could refuse to give an answer that would incriminate them, the privilege didn’t bar asking the question.
According to the opinion, in Dikeman the high court reversed course, with little analysis and no discussion of the principles of stare decisis. It overruled O’Chiato and held the general rule prohibiting the prosecution from calling a witness who intends to invoke the Fifth Amendment extends equally to the defense.
The current Colorado Supreme Court overruled Dikeman. It concluded Dikeman was erroneously decided because it was based on unsound reasoning, disregarded defendants’ constitutional rights and overlooked asymmetries between the prosecution and defense in context.
The high court held a defendant is entitled to question a nonparty alternate suspect in the jury’s presence under circumstances and procedures put forward in the opinion.
First, the trial court needs to determine whether, under the high court’s 2015 decision in People v. Elmarr, there is a non-speculative connection between the nonparty alternate suspect and the crime which the defendant was charged with.
If the requirements of Elmarr are met, the court needs to decide whether the alternate suspect has a valid claim of Fifth Amendment privilege at a hearing outside the jury’s presence. Third, if the alternate suspect has a valid claim of privilege, the court should determine the areas of questioning that implicate the Fifth Amendment, exercising discretion to impose reasonable limits on that questioning to avoid unnecessary courtroom drama.
The opinion added the defense should be permitted to call the nonparty alternate suspect in front of the jury and ask any questions the court has determined don’t implicate the Fifth Amendment. When those questions have been asked, the defense counsel can ask questions to which the witness can invoke the privilege. After the witness testifies, the court should excuse the witness and instruct the jury that the witness has a constitutional right to invoke the Fifth Amendment and refuse to answer questions.
The Colorado Supreme Court ruled the trial court erred in accepting Villalobos’ blanket Fifth Amendment invocation without holding a hearing outside the presence of the jury and the error wasn’t harmless. It reversed Rios-Vargas’ conviction and remanded for a new trial consistent with the opinion.
Chief Justice Brian Boatright was joined by Justices William Hood and Maria Berkenkotter in dissent.
“In sum, because neither party to a criminal case should be permitted to benefit from an adverse inference associated with a witness’s assertion of their Fifth Amendment privilege, calling a witness whom the party knows will invoke their constitutional right has only speculative probative value and thus, should be prohibited. Therefore, I find no persuasive justification to depart from nearly fifty years of precedent holding as much,” Boatright wrote.
The Colorado Supreme Court en banc affirmed an order involving a defendant’s statements during a stationhouse interview.
According to the high court opinion, a man was found dead in Thornton, Colorado and authorities suspected homicide. Thornton detectives identified Thorvyn Smiley as the sole suspect and, after tracking him down in New Mexico, brought him to a police station to collect certain samples pursuant to a court order.
After a brief initial chat, and long before executing the order, the detectives told Smiley they needed to read him his Miranda rights. After seeing Smiley’s concern, they repeatedly assured him he wasn’t in trouble and he’d be leaving the station that day. The detectives then advised Smiley of his rights and Smiley signed a waiver and agreed to speak with the detectives. During the interrogation, Smiley confessed to killing the alleged victim.
Smiley was arrested and charged with first-degree murder, but prosecutors later amended the charge to second-degree murder. In a pretrial motion, Smiley moved to suppress the statements he made during the interrogation, asserting both his alleged waiver of his rights and his subsequent statements were involuntary.
The court held a hearing and in its written order granting the suppression concluding: “an affirmative misrepresentation about the gravity of a person’s criminal exposure and the reckless disregard of the truth or falsity concerning an individual’s freedom are inherently coercive and are the precise types of trickery and/or cajoling that the Miranda court observed would be the antithesis of a voluntary waiver of the privilege against self-incrimination.”
Prosecutors appealed the trial court’s suppression order to the state high court.
The Colorado Supreme Court, based on the totality of the circumstances, including affirmative misrepresentations by authorities immediately before they elicited the waiver, affirmed the trial court’s order.
Justice Carlos Samour was joined by Justice Monica Márquez and Chief Justice Boatright in dissent.
“Today’s decision proceeds from a fundamental misconception of the Fifth Amendment. The majority concludes that Thorvyn Bullcalf Evan Smiley’s waiver of his right to remain silent was involuntary, despite the total absence of evidence that the interviewing detectives engaged in coercive conduct, much less coercive conduct that overcame his will and critically impaired his capacity for self-determination,” Samour wrote.
The Colorado Supreme Court en banc affirmed a judgment in a harassment case
Trevor Pellegrin and a woman dated and later became engaged. During their relationship, Pellegrin took intimate stages of the woman in stages of undress. The relationship ended, but several months later, Pellegrin and the woman spent some time together. About that same time, Pellegrin learned she had started seeing someone else.
According to the Colorado Supreme Court opinion, this information upset Pellegrin and over the next few days he called and texted the woman. In these communications, Pellegrin was accused of calling her names and sent nude photos of her he took during their relationship.
The woman learned her Facebook cover and profile photos had been changed to nude photos of her, which she recognized as photos Pellegrin took while they were dating. She also saw her profile biography had been changed to say she was an “awful” person, among other things.
In this same time period, she received more than 100 text messages and photos from strangers, including photos of naked men, messages saying unknown people were driving by her home and messages soliciting sex. The woman learned the messages were in response to two Craigslist ads Pellegrin was accused of placing.
One of the ads included four photos of the woman, including two nude photos that had been posted on her Facebook profile, among other information. The other ad included the same photos as the first ad and other information
The woman contacted police who arrested Pellegrin at his home. Pellegrin was charged with one count of stalking under Colorado Revised Statute 18-3-602(1)(c), two counts of posting a private image for harassment (one count for Facebook and one for Craigslist) under CRS 18-7-107 and one count of harassment under CRS 18-9-111(1)(e).
The case went to trial and a jury convicted Pellegrin of stalking, posting a private image to Craigslist for harassment and harassment. Pellegrin was sentenced to a controlling term of three years of supervised probation and 90 days in jail.
Additionally, under CRS 18-6-801(1)(a), the court made domestic violence findings for the acts underlying each charge and ordered Pellegrin to participate in a domestic violence evaluation and comply with its recommendations.
Pellegrin appealed, arguing under 18-1-408(5)(c) his conviction for harassment was a lesser included offense of stalking because harassment involves a less serious injury or risk of injury and a lesser kind of culpability than stalking. Pellegrin contended the convictions for those crimes need to be merged. Pellegrin also argued the Sixth Amendment requires a jury, not the trial judge, to determine whether the crimes for which he was convicted included an act of domestic violence. The Colorado Court of Appeals affirmed Pellegrin’s convictions.
Pellegrin petitioned the Colorado Supreme Court, which it granted in part.
The high court considered two issues. The first was whether 18-1-408(5)(c) created a “single distinction” test such that an offense is included in another offense if it involved either a less serious injury or risk of injury to the same person, property or public interest or a lesser kind of culpability, but not if both distinctions exist.
The second was whether under the U.S. Supreme Court decision Apprendi v. New Jersey and its progeny, criminal defendants have a Sixth Amendment right to have a jury, not a trial court, determine if the crime they were convicted of included an act of domestic violence under 18-6-801(1)(a).
The Colorado Supreme Court concluded 18-1-408(5)(c) doesn’t create a single distinction test. That means an offense is included in another offense under 18-1-408(5)(c) if it differs from the offense charged only in the respect that: a less serious injury or risk of injury, a lesser kind of culpability or both a less serious injury or risk of injury and lesser kind of culpability suffice to establish its commission; and no other distinctions exist.
After applying the construction to Pellegrin’s case, the high court further concluded that because the offenses of harassment and stalking differ in more ways than the two distinctions identified in 18-1-408(5)(c), harassment isn’t an included offense of stalking under that statutory provision and the defendant’s convictions for stalking and harassment don’t merge.
The court also found a domestic violence finding under 18-6-801(1)(a) doesn’t impose a penalty as contemplated by Apprendi and its progeny. Accordingly, Pellegrin had no Sixth Amendment right to have a jury, instead of the trial judge, determine whether the crimes for which he was convicted included an act of domestic violence.
The Colorado Supreme Court rejected the portion of the opinion of the Colorado Court of Appeals adopting and applying a single distinction test, but otherwise affirmed the division’s judgment.
Márquez concurred in part and concurred in the judgment.
“I agree with the majority that section 18-1-408(5)(c), C.R.S. (2022), does not create a single distinction test and that harassment does not merge with stalking. However, unlike the majority, I would resolve this case under the ‘lesser kind of culpability’ prong of subsection (5)(c), because commentary to the Model Penal Code reveals that the phrase ‘kind of culpability’ simply refers to the requisite culpable mental state of the offense. Harassment fails to satisfy this prong because it requires a higher culpable mental state (intent) than does stalking (knowledge),” Márquez wrote.
The Colorado Supreme Court en banc unanimously affirmed a judgment in part and reversed in part a case connected to the child hearsay statute.
Dennis Chirinos-Raudales was charged with multiple counts of sexual assault on a child and was found guilty on four counts.
The Colorado Supreme Court considered whether the trial court properly admitted statements the victim made when she was 15 years old under the child hearsay statute that provides out-of-court statements describing an offense of unlawful sexual behavior are admissible if made by a child, as child is defined under the statutes that are subject to the action, according to Colorado Revised Statute 13-25-129(2).
The Colorado Supreme Court held, under the plain language of the child hearsay statute, the subject of the action for sexual assault on a child by one in a position of trust is the substantive offense, which applies when the child is under 18, rather than the sentence enhancer, which applies when the child is under 15.
The Colorado Supreme Court also considered whether the trial court abused its discretion entering consecutive sentences for two of the defendant’s convictions in spite of CRS 18-1-408(3), which requires a trial court to impose concurrent sentences when multiple convictions involving a single victim are supported by identical evidence. The high court held because the two counts at issue weren’t supported by identical evidence, 18-1-408(3) didn’t mandate the trial court enter concurrent sentences for the two counts.
The Colorado Supreme Court affirmed the portion of the Colorado Court of Appeals opinion concluding the trial court properly admitted statements made by the victim under the child hearsay statute. The high court reversed the portion of the Colorado Court of Appeals’ opinion that ordered the trial court to impose concurrent sentences for two of the counts and remanded for further proceedings consistent with the opinion.
The Colorado Supreme Court en banc unanimously affirmed a judgment connected to the child hearsay statute, which is a companion case to Chirinos-Raudales.
Jose Orellana-Leon was charged with sexual assault on a child by one in a position of trust. Orellana-Leon was found guilty by a jury. The jury also found the victim was younger than 15 years old at the time of the assaults and there was a pattern of abuse. The appeals court affirmed his conviction.
The Colorado Supreme Court considered whether the trial court properly admitted statements the victim made when she was 15 years old under the child hearsay statute. The high court held, under the plain language of the child hearsay statute, the subject of the action for sexual assault on a child by one in a position of trust is the substantive offense, which applies when the child is under 18, rather than the sentence enhancer, which applies when the child is under 15.
The Colorado Supreme Court affirmed the judgment of the Colorado Court of Appeals.