People v. Boyd
2015 WL 4760414
Colo. Ct. App.2015Background
- Undercover officer bought marijuana from defendant’s boyfriend in the boyfriend’s van; officers later stopped the van and found a small amount of marijuana and the purchase cash in defendant’s pocket.
- Jury convicted Pamela Boyd of possession of marijuana (petty offense) and attempted distribution; judge applied a sentence enhancer on the attempted distribution count based on a prior distribution conviction.
- Boyd appealed; after her sentencing the Governor proclaimed Amendment 64 (art. XVIII, §16) effective (Dec. 10, 2012), which decriminalized possession of one ounce or less of marijuana.
- Boyd argued Amendment 64 applies retroactively to vacate her possession conviction; the People urged this court to reject retroactivity and affirm.
- The court also reviewed a separate claim (raised first on appeal) that voir dire comments by the trial judge diluted the presumption of innocence, and it noted an error in the mittimus listing a conspiracy conviction that the jury had acquitted.
Issues
| Issue | Plaintiff's Argument (People) | Defendant's Argument (Boyd) | Held |
|---|---|---|---|
| Voir dire comments about presumption of innocence | Comments did not prejudice defendant; no plain error because counsel did not object | Comments diluted/confused presumption and implied guilty may go free; prejudicial | No plain error: comments disapproved but not so egregious and correct written instructions cured any prejudice; conviction stands |
| Retroactivity of Amendment 64 (decriminalizing ≤1 oz) | Amendment presumed prospective; statute/constitutional effective-date rules and later cases limit retroactivity; Russell was wrongly decided | Under Thomas rule and §18-1-410(1)(f), ameliorative changes apply if conviction not final on effective date; Amendment 64 became effective while appeal pending, so possession conviction must be vacated | Apply Thomas/§18-1-410(1)(f): Amendment 64 retroactively decriminalizes possession ≤1 oz for convictions pending on proclamation date; vacate Boyd’s possession conviction |
| Interaction of general presumption statutes (§2-4-202, §2-4-303) with §18-1-410(1)(f) | General presumptions/§2-4-303 bar retroactive relief unless expressly provided | §18-1-410(1)(f) is a specific exception; Thomas and subsequent criminal-case precedent control | §18-1-410(1)(f) and Thomas prevail as the specific rule; §§2-4-202 and 2-4-303 do not preclude retroactive application here |
| Mittimus error (incorrect conviction listed) | — | Mittimus lists conspiracy conviction though jury acquitted | Remand to correct mittimus and remove the possession and conspiracy entries as appropriate |
Key Cases Cited
- People v. Thomas, 185 Colo. 395, 525 P.2d 1136 (1974) (ameliorative criminal-law changes should be applied to cases not final on appeal)
- People v. Russell, 396 P.3d 71 (Colo. App. 2014) (applied §16(3)(a) retroactively to convictions pending on Amendment 64 effective date)
- Huber v. Colorado Mining Ass’n, 264 P.3d 884 (Colo. 2011) (constitutional amendments presumptively prospective absent clear retroactive language)
- People v. Noe, 197 Colo. 32, 589 P.2d 483 (1979) (distinguishing civil retroactivity rules from criminal cases; Thomas rule governs criminal penalties)
- People v. McCoy, 764 P.2d 1171 (Colo. 1988) (defendant not entitled to ameliorative benefit when amendatory law clearly intends prospective-only effect)
- Riley v. People, 828 P.2d 254 (Colo. 1992) (clarifies interplay: apply Thomas where intended; deny retroactivity when amendatory text clearly prospective)