2019 CO 82
Colo.2019Background
- Late-night incident: R.B. was knocked unconscious and later discovered his phone, wallet, and keys missing; officers saw Johnny Delgado leaving the scene and found the items nearby after a chase.
- Delgado was tried for a single taking and convicted by a jury of both robbery (taking by force) and theft from a person (taking by means other than force).
- The trial court instructed the jury to consider each count separately and that the defendant could be found guilty of any one or all offenses; the court did not give a carrying instruction explaining that mutually exclusive offenses cannot both be convicted for a single taking.
- On appeal the court of appeals reversed and ordered a new trial, concluding the verdicts were legally inconsistent under People v. Frye.
- The Colorado Supreme Court affirmed: it held robbery and theft-from-a-person are mutually exclusive when based on the same single taking, the error was plain, and the proper remedy is retrial.
Issues
| Issue | Plaintiff's Argument (People) | Defendant's Argument (Delgado) | Held |
|---|---|---|---|
| Whether robbery and theft-from-a-person are legally inconsistent when based on a single taking | Jury could have factually distinguished force used at one moment and a non-forceful taking at another; convictions can be maximized (sustain robbery) | Elements negate each other; cannot be convicted of both for one taking | Held inconsistent: element "force" in robbery contradicts "by means other than force" in theft-from-a-person when based on one taking — convictions mutually exclusive |
| Whether the instructional/verdict error was plain (unpreserved) | Error not plain or not warranting reversal; no controlling precedent requiring reversal here | Error was plain because the elemental conflict is obvious and undermines conviction reliability | Held plain: the inconsistency is obvious and substantial and undermines the fundamental fairness and reliability of the convictions |
| Proper remedy for mutually exclusive guilty verdicts | Maximize the convictions by affirming the greater (robbery) and vacating the lesser (theft) | Double jeopardy requires acquittal on both counts (or otherwise relief preventing retrial) | Held retrial required: maximization inappropriate because jury intent cannot be discerned; double jeopardy does not bar retrial where one or both counts were convicted and no acquittal was entered |
| Whether the trial court erred in jury instructions (carrying instruction / Instruction 14) | Trial court’s instructions were sufficient | Trial court should have given a carrying instruction (instruct jury it may convict of robbery or theft but not both for same taking) | Held trial court erred by failing to provide a carrying instruction and by instructing jurors to treat counts entirely separately; that error contributed to mutually exclusive verdicts |
Key Cases Cited
- People v. Frye, 898 P.2d 559 (Colo. 1995) (articulated elemental approach and observed mutually exclusive guilty verdicts should not be sustained)
- People v. Warner, 801 P.2d 1187 (Colo. 1990) (legislative history: theft-from-the-person covers invasions without force and is meant to exclude robberies)
- United States v. Powell, 469 U.S. 57 (U.S. 1984) (inconsistent guilty/not-guilty verdicts may stand because jury compromise or mistake may explain inconsistency)
- In re Winship, 397 U.S. 358 (U.S. 1970) (Due Process requires proof beyond a reasonable doubt of every element of a crime)
- Sullivan v. Louisiana, 508 U.S. 275 (U.S. 1993) (jury verdict must find guilt beyond a reasonable doubt)
- Hagos v. People, 288 P.3d 116 (Colo. 2012) (plain-error standard: error must be obvious and substantial to warrant relief)