v. Jones, 2020 CO 45

Background

Andre Jones ambushed and shot his estranged, pregnant wife through her apartment door; she died and the fetus was delivered alive but with severe, permanent neurological injuries.
Jones was convicted by a jury of multiple offenses, including first-degree murder and child abuse resulting in serious bodily injury; he received cumulative life sentences.
At trial the court excluded Jones’s parents from the courtroom during the testimony of two of his children; the court made no Waller findings to justify the exclusion.
On appeal a division of the court of appeals reversed and remanded for a new trial (unanimous as to the public-trial issue) and, in a divided decision, held a fetus (even if later born alive) is not a “person” under the child-abuse statute.
The Colorado Supreme Court (majority) affirmed the reversal for a new trial because the parents’ exclusion was an unjustified partial closure that violated the Sixth Amendment and was structural; it also concluded the child-abuse statute is ambiguous on "person" and applied the rule of lenity to bar retrial on the child-abuse count.
The trial judge who ordered the exclusion has died, and the Court held a remand for retrospective Waller findings would be futile.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether excluding the defendant’s parents during testimony of two child witnesses was a courtroom "closure" implicating the Sixth Amendment	Exclusion was for cause (to protect/decorum the child witnesses) and within the court’s discretion; not a public-trial closure	The exclusion was a partial closure affecting the public-trial guarantee and required Waller findings; omission violated Sixth Amendment	Exclusion was an unjustified partial closure; trial court made no Waller findings; violation of the Sixth Amendment; structural error requiring a new trial
Whether remand for Waller findings could cure the error	Prosecution: remand for findings (and reliance on related dependency/neglect record) could cure defect	Defendant: remand is futile (trial judge deceased); contemporaneous alternatives/considerations were not explored	Remand would not cure the defect here (judge deceased; necessary contemporaneous consideration of narrower alternatives absent); new trial required
Whether the child-abuse statute’s term "person" includes an unborn fetus later born alive	Prosecution/Judge Webb (dissent): common-law "born-alive" doctrine and prior authority (People v. Lage) support treating a fetus later born alive as a victim; legislature’s inaction is permissive	Jones: statute ambiguous; no clear legislative intent to include fetuses; rule of lenity favors defendant	Statute is ambiguous as to whether "person" includes a fetus; after other interpretive aids fail, applied the rule of lenity — "person" does not include an unborn fetus later born alive; child-abuse conviction vacated and retrial on that charge barred

Key Cases Cited

Waller v. Georgia, 467 U.S. 39 (1984) (establishes four-factor test to justify courtroom closures)
Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980) (articulates public-trial values and First Amendment dimensions)
Presley v. Georgia, 558 U.S. 209 (2010) (trial courts must take measures to accommodate public attendance)
People v. Hassen, 351 P.3d 418 (Colo. 2015) (Colorado precedent on reviewing courtroom closures and mixed questions of law/fact)
People v. Lujan, 461 P.3d 494 (Colo. 2020) (describes the "trivial closure" exception and factors for triviality analysis)
People v. Lage, 232 P.3d 138 (Colo. App. 2009) (court of appeals decision applying the born-alive doctrine to child-abuse statute — discussed and overruled to extent inconsistent)
United States v. Rivera, 682 F.3d 1223 (9th Cir. 2012) (recognizes special salutary role of family presence in reminding courtroom actors of their duties)
State v. Lormor, 257 P.3d 624 (Wash. 2011) (concluded exclusion of a single spectator did not constitute a closure; discussed by Court but distinguished)