Editor’s Note: Law Week Colorado edits court opinion summaries for style and, when necessary, length.
Erin Amber Trujillo appealed her conviction for attempted retaliation against a witness or victim under Section 18-8-706 of the Colorado Revised Statutes.
The Colorado Court of Appeals concluded that the jury instructions for retaliation, attempt and intent—which mirrored both the statutory language and the model instructions—did not adequately inform the jury of the specific intent required to commit retaliation as described in the 1999 Colorado Supreme Court case People v. Hickman.
The appeals court reversed and remanded for a new trial.
Defendants in Colorado have the unconditional right to cross-examine a prosecution witness about the witness’s probationary status when the witness is on probation in the “same sovereign” at the time of trial, according to the opinion.
The Colorado Supreme Court noted in Margerum v. People that, “when a prosecution witness is on probation, the key question is whether there exists a ‘might have been influenced nexus’ between the witness’s probationary status and her potentially biased motive for testifying.”
For this reason, the jury must be permitted to consider whether the witness’s trial testimony “could be prompted by fear or concern for possible jeopardy to his probationary status,” and whether the witness “might be influenced by a promise of, or hope or expectation of, immunity or leniency.”
“Therefore, the defense must be permitted to question a prosecution’s witness about her probationary status when the witness is on probation in the same sovereign as the prosecution.”
A division of the Colorado Court of Appeals extended the reasoning of Margerum to situations where the witness faces criminal charges in the same judicial district in which the prosecution seeks the witness’s testimony.
In this appeal, Mardi Jean Gray sought reversal of her judgment of conviction for second-degree assault and third-degree assault. She contended that the trial court violated her constitutional right to confront her accusers by not permitting her to cross-examine the alleged victim about his probationary status at the time he spoke with police officers regarding an incident in which Gray and struck and choked him, even though the victim was no longer on probation at the time of trial.
The appeals court declined to extend the unconditional right of cross-examination articulated in Margerum to cases where the witness is no longer on probation at the time of trial.
Gray also raised a sufficiency of the evidence challenge, arguing that the prosecution failed to disprove her affirmative defense of self-defense beyond a reasonable doubt. The appeals court disagreed with both contentions.
The appeals court affirmed.
Nathan Schulz v. Laszlo & Associates
In this derivative action, Laszlo & Associates LLC, Theodore Laszlo and Michael Laszlo appealed the district court’s order denying their motion for attorney fees under Section 13-17-201 of the Colorado Revised Statutes after the court granted their Colorado Rule of Civil Procedure 12(b)(1) motion to dismiss the claims asserted against them by Nathan Schulz.
Section 13-17-201(1) generally entitles a defendant to an award of attorney fees when all claims against that defendant have been dismissed on a pretrial motion filed under C.R.C.P. 12(b).
But after the court dismissed Schulz’s claims against Laszlo, Schulz validly amended his complaint as a matter of course under C.R.C.P. 15(a) to assert another claim against them, and the court later dismissed that claim on its own motion.
Under these circumstances, the appeals court concluded that Laszlo was not entitled to attorney fees under Section 13-17-201.
The appeals court affirmed the district court’s order.
Thomas Rojas appealed the district court’s new sentences imposed after a division of the Colorado Court of Appeals vacated his original sentences. Rojas argued, among other things, that the district court violated his right to due process by imposing more severe sentences on remand.
In People v. Johnson, the Colorado Supreme Court emphasized that “[d]ue process of law … requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial.”
To guard against the possibility that the “judge may have sought to punish the defendant for appealing the original decision,” a rebuttable presumption of vindictiveness arises if “(1) the new sentence on remand is more severe than the original sentence, and (2) there is a reasonable likelihood that actual vindictiveness played a part in the resentencing.”
In addressing Rojas’s due process argument, the appeals court encountered two questions of apparent first impression in Colorado. First, are new sentences with the same aggregate prison term as the original sentences but a later parole eligibility date more severe for due process purposes? In line with the majority of jurisdictions that have considered the question, the appeals court concluded that they are.
Second, is there a reasonable likelihood of actual vindictiveness when, without more, a judge who did not impose the original sentences imposes more severe sentences following a successful appeal? Relying on the U.S. Supreme Court’s holdings in Texas v. McCullough, the appeals court concluded that there is not, and Rojas’s due process argument fails. The appeals court rejected Rojas’s other contentions.
The appeals court affirmed his new sentences.