2015 COA 24M
Colo. Ct. App.2015Background
- On April 21, 2010, masked men including Devone Fuller and Joshua Golston entered R.W.’s home; a rifle and clothing with DNA later tied to Michael Carter were recovered; Carter was arrested days later based on ankle-monitor data and DNA evidence.
- Carter was charged with five counts of first-degree burglary (four assault/menace, one deadly-weapon), one count of aggravated battery, and three counts of misdemeanor child abuse; convicted on all but aggravated robbery; Golston was tried earlier and acquitted.
- During voir dire, a prospective juror (R.L.) disclosed employment as a CPUC criminal investigator; defense moved to excuse for cause under the statute barring employees of public law enforcement agencies; the court denied cause and Carter used a peremptory to remove the juror.
- Defense sought to cross-examine the victim R.W. and Detective Meier about two incidents (a courthouse gun-threat to Golston and attempts to obtain R.W.’s phone) as bearing on R.W.’s motive/credibility; the court excluded those inquiries as irrelevant or speculative.
- The jury received complicity instructions including a supplemental instruction about contemporaneous knowledge; post-trial Carter was sentenced on five burglary counts; on appeal the court affirmed most rulings but remanded to vacate four burglary convictions as multiplicitous.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Challenge for cause: whether CPUC is a "public law enforcement agency" under §16-10-103(l)(k) | CPUC employment is law-enforcement because CPUC has investigatory and some peace-officer powers | Carter: juror’s CPUC role required automatic excusal because CPUC is a public law enforcement agency | Court held CPUC is primarily a civil regulatory body with incidental penal authority; not a public law enforcement agency; no error denying challenge for cause |
| Exclusion of cross-examination about courthouse threat and phone-consent attempt | Evidence bore on R.W.’s motive to lie and credibility; Confrontation Clause rights implicated | Prosecution: incidents were irrelevant or speculative and inadmissible under CRE 401/403/608(b) | Court held exclusion was within discretion; inquiries were too speculative and marginally relevant; no Confrontation Clause violation |
| Complicity instructions (added instruction about contemporaneous knowledge) | Instruction 23 risked lowering mens rea/burden by implying contemporaneous knowledge of any principal sufficed | Court/Prosecution: instruction supplemented the model complicity instruction and clarified timing; read with other instructions properly states law | Court held instructions viewed together accurately stated law; no reversible error |
| Double jeopardy: multiple burglary convictions based on single entry | Multiple burglary convictions valid because separate victims were menaced and/or deadly-weapon count different | Carter: single unlawful entry can support only one first-degree burglary conviction | Court held single entry supports only one first-degree burglary conviction; vacated four assault/menace burglary counts and left the deadly-weapon count intact to effectuate jury verdict |
Key Cases Cited
- People v. Macrander, 828 P.2d 234 (Colo. 1992) (challenge-for-cause standard where statutory disqualification applies)
- People v. Sommerfeld, 214 P.3d 570 (Colo. App. 2009) (de novo review for legal question whether prospective juror is employee of public law enforcement agency)
- People v. Speer, 255 P.3d 1115 (Colo. 2011) (definition of public law enforcement agency and limits on treating regulatory agencies as such)
- Ma v. People, 121 P.3d 205 (Colo. 2005) (agency must possess police-like authority to be a law enforcement agency under juror-excusal statute)
- People v. Simon, 100 P.3d 487 (Colo. App. 2004) (EPA characterized as primarily regulatory, not a public law enforcement agency, despite some criminal powers)
- Evans v. People, 706 P.2d 795 (Colo. 1985) (caution against using excerpts from opinions in jury instructions and risk of conflict with model instructions)
- Delaware v. Van Arsdall, 475 U.S. 673 (U.S. 1986) (prejudice standard for Confrontation Clause errors regarding cross-examination)
- People v. Fuentes, 258 P.3d 320 (Colo. App. 2011) (single entry supports only one first-degree burglary conviction)