Editor’s Note: Law Week Colorado edits court opinion summaries for style and, when necessary, length.
During Ernest Tibbels’ trial for menacing and possessing contraband, the judge tried to explain the concept of reasonable doubt to potential jurors with an analogy. The judge described a family who just found the perfect home — except for “a crack in the foundation from the floor to the ceiling.” The judge likened this “structurally significant” crack to reasonable doubt, adding it is “something that you can kind of touch or feel or an inference that you may be able to draw.”
Tibbels was convicted of possessing contraband. On appeal, he argued the judge’s analogy lowered the prosecution’s burden of proof by setting too high a bar for reasonable doubt. The Court of Appeals affirmed his conviction.
The Colorado Supreme Court found that the proper test for determining whether a trial court’s statements to the jury lowered the burden of proof “is a functional one.” Appellate courts must ask whether, considering the trial record and jury instructions, there is a reasonable likelihood the jury understood the court’s statements to allow conviction on a lower standard.
Applying this test to Tibbels’ case, the high court concluded it was reasonably likely the jury understood the judge’s statements to allow conviction on a standard lower than beyond a reasonable doubt. The court reversed his judgment.
This companion case to Tibbels v. People also arose from a judge’s explanation of reasonable doubt. When speaking with a prospective juror in the trial of William Pettigrew, the judge said reasonable doubt is “pretty hard to define,” and the definition in the law is “a little inadequate.”
The judge went on to illustrate an “unreasonable” doubt by asking a potential juror’s birthday and how he knows that is his birthday. The juror answered that he knows when his birthday is because it’s on his birth certificate, which is an official document. The judge responded that sometimes hospitals make clerical errors, so what other reason did he have to believe his birthday is Nov. 18? The juror answered that his parents say Nov. 18 is his birth date. The judge countered that his “mother probably wasn’t thinking of the date” when he was born.
Another potential juror asked why Pettigrew, who was later convicted of pandering of a child and tampering with a witness or victim, wasn’t being charged with child pornography. “Maybe because there’s no evidence that he committed another offense,” the judge responded, adding that “we try people when there’s evidence to support the charges.”
The judge also attempted to distinguish between “innocent” and “not guilty” when speaking to yet another potential juror, explaining that if the defendant is innocent, that means he “didn’t do anything,” which might be the case if the defendant was out of the country when the crime was committed. “But that’s not how we look at trials in this country,” the judge said, adding that “trials in this country are a test of the prosecution’s evidence.”
Applying the test in Tibbels, the Colorado Supreme Court affirmed Pettigrew’s convictions. While “a number of the trial court’s comments during voir dire were problematic,” the court’s unanimous opinion said, there is no reasonable likelihood the jury would have understood the court’s statements to lower the prosecution’s burden of proof.
Pettigrew also challenged the constitutionality of a search warrant for his cell phone on Fourth Amendment grounds. The Supreme Court found that any constitutional error in admitting evidence obtained from Pettigrew’s cell phone was harmless beyond a reasonable doubt.
Patrick Rau shot and killed an intruder in the shared basement of the house where he rented an apartment. At issue on appeal was whether the apartment building basement constituted a “dwelling” for the purposes of Colorado’s “make my day” statute. The Colorado Supreme Court concluded it was and upheld the dismissal of second-degree murder charges against Rau.
Rau and his girlfriend lived in a house that was split into multiple apartments that all shared access to the house’s basement. In early 2017, Rau’s girlfriend noticed the basement door of their apartment was ajar, and Rau armed himself with a gun and went to investigate.
Rau found a man sleeping in the basement and told the man to leave. The man started yelling and throwing things, though not at Rau. Rau told the man that if he didn’t leave by the time he counted to five, he would shoot him. Rau counted to five and shot the man.
Rau was charged with second-degree murder, but the district court found him immune under the state’s “make my day” statute, which protects an occupant of a dwelling from prosecution if the occupant uses deadly physical force against an intruder.
The state appealed, arguing that the basement wasn’t a “dwelling” because it was a common area used by all the building’s tenants. However, the Court of Appeals disagreed, finding that the state’s interpretation is at odds with the Colorado Supreme Court’s 1982 decision in People v. Jimenez, which doesn’t make an exception for common areas within a dwelling.
The Colorado Supreme Court also looked to Jimenez and concluded that, like the attached garage in that case, Rau’s basement was part of a building used for habitation. The justices unanimously agreed with the Court of Appeals that the basement was part of Rau’s dwelling and he was immune from prosecution for using deadly force against the intruder.
Tow truck driver Thomas Pearson was charged with third-degree assault, criminal mischief and harassment following a road rage incident. He honked his horn after Timothy O’Kelly cut him off, and O’Kelly responded with the middle finger. Pearson tossed an air freshener at O’Kelly’s car and the two exited their vehicles. At some point, Pearson punched O’Kelly in the face, which Pearson says happened after O’Kelly struck him.
At trial, Pearson testified that he punched O’Kelly in self-defense after the man struck him. He requested self-defense as an affirmative defense to harassment and assault, but the court only instructed the jury on self-defense for the assault charge and refused to do so for the harassment charge. Pearson was acquitted of assault and criminal mischief but convicted of harassment. Pearson’s county court conviction was affirmed by the district court, which found Pearson wasn’t entitled to a self-defense instruction with respect to his harassment charge.
On appeal to the Supreme Court, Pearson argued that self-defense is an affirmative defense to harassment and the prosecution was required to prove all elements of the crime of harassment beyond a reasonable doubt. By not instructing the jury as to the harassment charge, Pearson argues, the trial court denied him his right to defend himself, lowered the prosecution’s burden of proof and violated his constitutional right to a fair trial.
The Supreme Court agreed with Pearson that a defendant can assert self-defense as an affirmative defense to the crime of harassment if there is credible evidence allowing a jury to find the defendant acted with intent to alarm as a means of self-defense. The court reversed the district court’s judgment and remanded the case for proceedings consistent with the decision.