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September 20, 2011

Colorado Court of Appeals Reverses Conviction - Breathes Life Into Colorado's Self Defense Laws

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The failure of a Jefferson County District Court judge to properly instruct a jury on the Defendant, Albert Montoya's right of self defense - will probably lead to a completely new trial trial in the 2006 murder case.

Albert Montoya, in October of 2006 - fled a party in Wheatridge Colorado and fired back at a crowd of individuals chasing he and a friend from the location.

One of the bulletts fired by he and the codefendant struck and killed high school senior Mackenzie Kingry, four days before her 18th birthday.

The Colorado Court of Appleas ruled that the Jefferson County District Court judge who heard the case was required to properly instruct the jury on Colorado's law of elf defense. He should have told jurors to consider the number of people chasing the pair when they responded with gunfire, said the state court of appeals.

"There was some evidence that . . . at least one other guest had a gun which he fired as the defendant departed the house," wrote Judge Dennis Graham in an August decision that was amended Thursday.

"It was incumbent upon the trial court to give a self-defense instruction which embodied defendant's theory that he believed he was threatened by multiple assailants," Graham wrote.
Montoya was convicted of first-degree murder with extreme indifference, reckless manslaughter, criminally negligent homicide and accessory to a crime.

The appeals court left the last charge in place but reversed Montoya's convictions on all .

Judge Steve Bernard disagreed with part of the decision, saying the jury knew there was a crowd chasing Montoya and Duran and wasn't prohibited from taking the size of the crowd into consideration.

"This instruction properly set forth the general principle that the jury was required to evaluate the totality of the circumstances," Bernard wrote. ". . . The jury was informed that defendant's self-defense theory involved multiple assailants."

]The Denver Post was the source of this blog entry.

H. Michael's Take

To sqaure the law in this area with these facts -- it is important to read the actual jury instruction on self defense in Colorado - I have included it here as it is read to the jury in a trial where self defense is asserted as an affirmative defense:

H:18 USE OF PHYSICAL FORCE-DEADLY PHYSICAL FORCE (IMMINENT DANGER OF DEATH OR SERIOS BODILY INJURY BY VICTIM)

It is an affirmative defense to the crime of (Insert name of crime) that the defendant used deadly physical force:

1. in order to defend [himself] [or] [a third person] from what he reasonably believed to be the use or imminent use of unlawful physical force by the other person,

2. he used a degree of force which he reasonably believed to be necessary for that purpose, and

3. he/she reasonably believed a lesser degree of force was inadequate, and

4. had reasonable grounds to believe, and did believe, that he or another person was in imminent danger of being killed or of receiving great bodily injury.

[The defendant is not required to retreat in order to claim the right to employ force in his/her defense.]

[The defendant is not justified in using physical force if:

1. with intent to cause bodily injury or death to another person,

2. he/she provoked the use of unlawful physical force by that person.]

[The defendant is not justified in using physical force if he/she is the initial aggressor, except that his/her use of physical force under the circumstances is justifiable
if:
1. he/she withdraws from the encounter, and

2. effectively communicates to the other person his/her intent to withdraw, and

3. the other person continues or threatens the use of unlawful physical force.]

[The defendant is not justified in using physical force if:

1. the physical force involved is the product of combat by agreement, and

2. the combat is not specifically authorized by law.]

In addition to proving all of the elements of the crime charged beyond a reasonable doubt, the prosecution also has the burden to disprove the affirmative defense
beyond a reasonable doubt.

After considering the evidence concerning the affirmative defense, with all the other evidence in this case, if you are not convinced beyond a reasonable doubt of
the defendant's guilt, you must return a verdict of not guilty.

Posted by H. Michael Steinberg | | Email This Post

November 21, 2010

The Right to Refuse a Jury Trial - Is Not A Right At All in Colorado

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In a recent decision of the Colorado Supreme Court that involved what is called an interlocutory appeal - (that means an appeal that takes place DURING rather than after the tria) - the Colorado Supreme court reversed an order from the trial court granting defendant a bench trial over the People's objection. Defendant sought to waive his right to a jury trial under C.R.S. § 18-1-406(2), but the People refused to consent to the "waiver" of that right under C.R.S. § 16-10-101.

The Colorado Supreme Court held that the trial court exceeded it;s jurisdiction when it determined that a jury trial would subject defendant to a constitutionally unfair proceeding because he risked impeachment based on his prior felony convictions, which included a conviction for failure to register as a sex offender, and because the evidence at trial would reveal his history of drug use and his status as a confidential informant. In re People v. McKeel

H. Michael's Take

It is a little known fact and reality of everyday life of Colorado Criminal Defense Lawyers - that the District Attorney - the prosecutor - has a right to ask for a jury over the objection of the accused in a trial.

There clearly are occasions when tactically it makes sense to try a case to the Judge alone-A Judge will most likely ignore issues pertaining to a Defendant's criminal history instead focusing on the facts and the law of the case. A Judge also is much more careful to avoid bias and passion or be misled by collateral issues unrelated to the guilt or innocence of the Defendant.

Colorado's law CRS 18-1-406(2) - provides, "the person accused of a felony or misdemeanor may waive a trial by jury by express written instrument filed of record or by announcement in open court appearing of record."

The District Attorney's objection was under under section 16-10-101, C.R.S. (2009), which provides, "The [P]eople shall also have the right to refuse to consent to a waiver of a trial or sentencing determination by jury in all cases in which the accused has the right to request a trial or sentencing determination by jury."

The People contended that McKeel had not presented any evidence "that a fair and impartial jury cannot be selected from this community." They argued that if McKeel chose to testify, the trial court would give jury instructions to limit any unfairly prejudicial impact arising from his impeachment by prior felony convictions. The People also rejected the notion that the courts should presume that a jury would be unfair or biased toward defendants with drug-related issues that were collateral to the charges at issue.

The Supreme Court here held that the lower court went too far and exceeded it's jurisdiction when it determined that a jury trial would subject McKeel to a constitutionally unfair proceeding because he risked impeachment based on his prior felony convictions, which included a conviction for failure to register as a sex offender, and because the evidence at trial would reveal his history of drug use and his status as a confidential informant. Accordingly, the trial court's order was vacated and the trial court was ordered to set the matter for a jury trial.

The appellate court ruling was correct - because it followed the law - however the law should be amended to allow a Judge to do what we pay them to do -- judge the case before them and permit a waiver of a jury where the trial court knows a jury would struggle to be fair.

The impact of the ruling I am certain will deal a serious blow to the Defendant's chances at trial and will deny him a fair trial - as the jurors inthis case will have great difficulty separating the facts and evidence of the case before them from the Defendant's past.

Posted by H. Michael Steinberg | | Email This Post

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