Court Opinions – Dec 16, 2019

Rail v. People

A jury found Paul Rail guilty of sexual assault on a child. In response to a special interrogation, the jury also found that Rail committed the offense as part of a pattern of abuse and that the People proved each of the listed incidents of sexual contact. However, in response to a unanimity interrogatory that the trial court failed to read aloud, the jury indicated that these same incidents of sexual contact were not proven. Rail contended that his conviction amounts to structural error, requiring reversal under Sanchez v. People.

The Supreme Court held that under People v. Rediger, the defendant did not waive his claim because he had no reason to be aware of the inconsistency. The court also held that Sanchez does not compel reversal because, unlike in that case, the jury returned a guilty verdict reflecting its unanimous finding of guilt beyond a reasonable doubt, and any ambiguity in that verdict was resolved through individual polling of the jury. The Supreme Court affirmed the judgment of the Court of Appeals.

Margerum v. People 

While in a friend’s apartment, Lance Margerum made sexual advances toward E.S. When she rebuffed him, he pushed her onto a bed and began kissing and groping her. E.S. fought back and promised that she would not tell anyone, and Margerum allowed her to leave. Margerum then invited his sister, T.M., to the apartment to pick up some clothes. When she arrived, Margerum grabbed her, choked her and punched her. 

E.S. testified at Margerum’s trial while she was on probation for an unrelated offense. The trial court refused to allow Margerum to impeach E.S.’ credibility based on her probationary status. The jury found Margerum guilty of unlawful sexual contact with respect to E.S. and both third-degree assault and felony menacing with respect to T.M. The Court of Appeals affirmed Margerum’s convictions.

The Supreme Court considered: whether a witness’ credibility may be impeached based on her probationary status at the time she testifies; and whether Margerum may be convicted of both assault and menacing based on the same conduct. The court held that a witness’ probationary status is always relevant when the witness is on probation with the state and testifies for the prosecution. But because the court concluded that the trial court’s error in not allowing defense counsel to impeach a witness based on her probationary status was harmless under the facts of this case, it concluded that reversal is not required. The court further held that Margerum was properly convicted of both assault and menacing because the facts support both convictions.

Accordingly, the judgment of the Court of Appeals was affirmed. 

Williams v. People 

The Supreme Court considered whether, in a deferred judgment revocation proceeding based on a defendant’s failure to pay restitution, the prosecution bears the burden of proving that the defendant has the ability to pay restitution.

The court held that, when a defendant introduces some evidence of inability to pay restitution, a district court must make the ability-to-pay findings under section 18-1.3-702(3)(c), C.R.S. (2019), before revoking a deferred judgment and sentence for failure to pay restitution.

The court further held that the prosecution bears the burden of proving by a preponderance of the evidence that “the defendant has the ability to comply with the court’s order to pay a monetary amount due without undue hardship to the defendant or the defendant’s dependents,” and “the defendant has not made a good-faith effort to comply with the order.”

People v. Robinson 

A sexual assault case against Marcus Robinson, who is black, went to trial in which E.G., who is white and was both a victim and witness. During voir dire, defense counsel inquired of the prospective jurors whether there was anything about the difference in the parties’ races that made anyone uncomfortable. No one indicated any concern. Counsel then asked several of the prospective jurors whether they would be comfortable bringing any improper discussion of race in the jury room to the attention of the court. These jurors said that they would, and one of them noted that he understood that he could not allow racial considerations to influence him improperly.

This case required the Supreme Court to decide whether a Court of Appeals division erred in concluding that a prosecutor’s race-based comments in her opening statement constituted reversible plain error. The court concluded that the prosecutor’s comments on the differing races of the defendant and the victim were improper because any probative value that the comments might have had was substantially outweighed by the danger of unfair prejudice to the defendant. The court further concluded, however, that, on the facts presented, the prosecutor’s comments did not rise to the level of reversible plain error because even if obvious (an issue that the court need not decide), the error did not so undermine the fundamental fairness of the defendant’s trial as to cast serious doubt on the reliability of his judgment of conviction. 

Accordingly, the court reversed the division’s judgment and remanded for further proceedings. 

In Re People v. B.B.A.M.

The People filed a petition in delinquency against B.B.A.M., charging him with one count of third-degree burglary and three counts of criminal mischief. B.B.A.M.’s counsel filed a motion to determine competency. Because the court felt it lacked adequate information to make a preliminary finding regarding B.B.A.M.’s competency, it ordered the Colorado Department of Human Services to conduct an outpatient competency evaluation. After examining B.B.A.M., the competency evaluator filed a report in which she concluded he was incompetent to proceed, determined there was a likelihood of restoring him to competency and recommended the restoration services she deemed appropriate. Based on the competency evaluator’s report, the court made a preliminary finding of incompetency. Since neither party requested a competency hearing within ten days, the court made the preliminary finding of incompetency a final determination. Thus, the court suspended the proceedings and ordered that B.B.A.M. receive outpatient services designed to restore him to competency.  

The Supreme Court considered whether the juvenile court may order a second competency evaluation in lieu of holding a restoration review or a restoration hearing.

The court concluded that the juvenile court may not do so. The court may find that the juvenile has been restored to competency either during a restoration review or after holding a restoration hearing.

Because the relevant statutes do not permit a juvenile court to order a second competency evaluation to determine whether a juvenile has been restored to competency, the court ruled that the district court erred in affirming the juvenile court’s order. Accordingly, the court reversed the district court’s order and remanded with instructions to return the case to the juvenile court for a restoration review or a restoration hearing. 

In Re People v. Rowell 

James Rowell was taken into custody on the relevant charges when his bonds were revoked, and he was entitled to demand a preliminary hearing on those charges “within a reasonable time.” The question that naturally flows is: What does “within a reasonable time” mean? The legislature asked this court to establish, through rule, the precise timeframe within which a demand for a preliminary hearing must be made. Although Crim. P. 7(h)(1) requires that a preliminary hearing request in district court be made “within seven days after the defendant is brought before the court for or following the filing of the information,” it does not address Rowell’s situation — Rowell did not become eligible to demand a preliminary hearing on the relevant charges until months after he was brought before the court for the filing of the information. 

Rule 7(h)(1) is silent on the timeframe within which Rowell was required to demand a preliminary hearing on the relevant charges after his bonds were revoked, so the Supreme Court remanded the case to the district court to determine whether his demand was made “within a reasonable time” after he became statutorily eligible to advance it. 

The court held that the district court erred in denying the defendant’s request for a preliminary hearing without first determining whether the request was advanced within a reasonable time after the bonds in his cases were revoked and he was taken into custody. The relevant charges are class 4, 5 and 6 felonies that do not carry mandatory sentencing, are not crimes of violence pursuant to section 18-1.3-406, C.R.S. (2019) and are not sexual offenses. It is undisputed that while the defendant was on bond, he was not eligible to receive a preliminary hearing on those charges. But the court ruled that when his bonds were later revoked, he was entitled to demand and receive a preliminary hearing within a reasonable time.

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