At the Court of Last Resort

Compiled by Hannah Skewes


Every Monday, the Colorado Supreme Court releases a rundown of cases it has been asked to review. Of 21 petitions for writ of certiorari, the justices granted three and denied the rest. Two of the granted petitions were remanded to a lower court with directions to follow prior precedent, while one will likely be scheduled for oral arguments some time next year.



Rail v. People

Case No. 16SC269

Court of Appeals Case No. 13CA392

Petitioner: Paul Lacey Rail,

Represented by Deputy State Public Defender Anne Amicarella

Respondent: The People of the State of Colorado,

Represented by Assistant Attorney General John Lee

Issues: 1) Whether a defendant waives appellate review by failing to request further polling of the jury when polling affirms the court’s reading of the jury’s guilty verdict on the charge of sexual assault on a child and of the special interrogatory reflecting the jury’s findings that acts establishing a pattern of sexual abuse had been proven, but the trial court fails to read aloud the unanimity interrogatory which reflected that the jury found that none of the acts to establish the charge had been proven.

Whether, under Sanchez v. People, reversal is required when a jury unanimously finds that none of the alleged acts establishing sexual assault on a child were proven yet the trial court nonetheless directs a guilty verdict because the jury found that the same acts were proven to establish a pattern of sexual abuse.

Opinion below: Rail was convicted by a jury of sexual sexual assault on a child and answered a special interrogatory finding a pattern of abuse. However, the jury also acquitted him of sexual assault on a child while in a position of trust. On appeal, Rail argued that under Sanchez v. People, inconsistencies between the jury’s answers to the special interrogatory on pattern and the special interrogatory on unanimity constituted structural error mandating reversal. The appeals court rejected his arguments, finding that Sanchez is distinguishable and other precedent does not support applying structural error. The appeals court also addressed a novel question in Colorado case law in finding that Rail waived appellate review by declining the trial court’s offer to further poll the jury.


Shomaker v. People

Case No. 16SC624

Larimer County District Court Case No. 15CV30573

Petitioner: Albert Shomaker

Respondent: The People of the State of Colorado.

Issue: Whether the district court erred in finding that the trial court’s instructions adequately advised the jury of the elements of the offenses as separate and distinct.

The Supreme Court vacated the judgment of the Larimer County District Court and remanded the case for the trial court to reconsider it in light of Reyna-Abarca v. People, a 2017 Colorado Supreme Court ruling. In that ruling, the court consolidated four cases that raised the question of whether driving under the influence is a lesser included offense of either vehicular assault while driving under the influence or vehicular homicide while driving under the influence. The high court found in that case that the applicable test for determining whether one offense is a lesser included offense of another is the “strict elements” test from Schmuck v. United States.


Cardman v. People

Case No. 16SC789

Court of Appeals Case No. 14CA202

Petitioner: Ryan Matthew Cardman

Respondent: The People of the State of Colorado.

Issue: Whether the district court violated the defendant’s constitutional right to due process and reversibly erred by admitting statements the defendant made to a detective without first determining whether the statements were voluntary and whether the defendant was entitled to specific performance of direct and/or implied promises made to him by the detective during the interrogation.

The Colorado Supreme Court vacated the Court of Appeals ruling and remanded the case to that court, also for consideration under Reyna-Abarca v. People.