2017 COA 11
Colo. Ct. App.2017Background
- In Feb 2013 DHS removed Johnson's children after information from Elizabeth Ranals; Johnson later fired shots at a DHS vehicle and at Ranals' home; no one was injured.
- Johnson was charged with multiple felonies, including retaliation against a witness or victim under § 18-8-706 and several violent and weapons offenses.
- At trial the People argued Johnson shot into Ranals' home because she had reported him to DHS and might be a witness in dependency and neglect (civil) proceedings.
- The jury acquitted Johnson on seven counts (including attempted murder) and convicted him on the remaining counts, including witness retaliation under § 18-8-706.
- Johnson moved for a new trial; at trial Ranals briefly testified about prior domestic violence despite an evidentiary ruling excluding other bad acts; the court gave a limiting instruction instead of granting a mistrial.
- On appeal the court vacated the § 18-8-706 conviction (statute limited to criminal proceedings) but affirmed the other convictions and upheld denial of mistrial and new trial motions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 18-8-706 covers retaliation for relation to civil proceedings | People: statute protects retaliation against persons because of relationship to proceedings generally (arguing it covers Ranals as potential witness) | Johnson: statute protects only witnesses/victims related to criminal proceedings, not civil dependency hearings | Court: Vacated conviction — § 18-8-706 applies only to criminal proceedings |
| Appropriate standard for reviewing unpreserved statutory sufficiency claim | People: plain error standard (some divisions) | Johnson: de novo review of statutory interpretation and sufficiency claim | Court: de novo review; declined to apply plain error to these legal sufficiency claims |
| Denial of mistrial after witness referenced prior domestic violence | People: reference was fleeting, inadvertent, curable by instruction | Johnson: prejudice was incurable; required mistrial | Court: No abuse of discretion — limiting instruction sufficient; evidence was fleeting and not elicited intentionally |
| Denial of new trial based on juror affidavit alleging jurors ignored instruction | Johnson: affidavit shows jury considered stricken testimony and used improper bias (extraneous prejudicial information exception under CRE 606(b)) | People: affidavit concerns deliberations, not extraneous information; CRE 606(b) bars inquiry | Court: Denial affirmed — affidavit concerns deliberations and does not meet CRE 606(b) exception |
Key Cases Cited
- People v. Hickman, 988 P.2d 628 (Colo. 1999) (construing § 18-8-706 as protecting witnesses because of relation to criminal proceedings)
- People v. Harlan, 109 P.3d 616 (Colo. 2005) (CRE 606(b) strongly disfavors juror testimony about deliberations; outlines extraneous-information exception)
- People v. Lahr, 316 P.3d 74 (Colo. App. 2013) (limiting instructions generally cure fleeting, inadvertent references to inadmissible evidence)
- Bostelman v. People, 162 P.3d 686 (Colo. 2007) (statutory interpretation is reviewed de novo)