Colorado Court of Appeals Opinions

November 27, 2019

2019 COA 175 No. 17CA0620, People v. Tibbels

Defendant called 911 during a mental health crisis and was arrested on the mistaken belief that he had violated a protection order. Defendant was uncooperative and deputies placed him in a “quiet room” at the detention facility. After several hours, defendant threatened to kill himself. He then removed a sharpened metal spike from his pocket and threatened to kill deputies if they entered the room. Deputies locked down the jail until they subdued defendant. Defendant was convicted of possession of contraband.

            On appeal, defendant argued that the prosecutor’s appeal to the jury to hold him accountable for the jail lockdown was irrelevant, prejudicial, and misleading. During closing argument, the prosecutor asked the jury to hold defendant “accountable” for his “temper tantrum” that shut down the jail. Defense counsel did not object. The trial court properly instructed the jury that opening and closing statements are not evidence, and of the government’s burden of proof. The jury took its role seriously and was not swayed by any possibly improper arguments. Further, there was overwhelming evidence of guilt. Thus, any alleged prosecutorial misconduct was harmless.

            Defendant also argued that the trial court’s illustration of reasonable doubt during voir dire impermissibly lowered the prosecutor’s burden of proof. During voir dire, the trial court compared the concept of reasonable doubt to a structurally significant crack in the foundation of a house being considered by a prospective purchaser. Defense counsel did not object to the trial court’s illustration or its colloquy with the jury in that regard. The Court of Appeals noted that while it strongly discourages trial courts’ use of everyday illustrations to explain reasonable doubt, here the trial court’s illustration did not impermissibly lower the prosecution’s burden of proof.

            Defendant further contended that his conviction should be vacated because the trial court erroneously failed to give a special interrogatory requiring the jury to find that he possessed a “dangerous instrument.” Here, the trial court limited the definition of contraband to a dangerous instrument and defined dangerous instrument consistently with the statute. The better practice is to provide a special interrogatory requiring a dangerous instrument finding, but the trial court ensured that the jury unanimously found that the contraband element was a dangerous instrument and thus obviated the need for the special interrogatory.    

            The judgment was affirmed.

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2019 COA 176 No. 17CA1243, People v. Tafoya

Police identified defendant’s home as a possible drug stash house based on information from a confidential informant. Without applying for a search warrant, police installed a video camera near the top of a utility pole across the street from defendant’s property. The camera could pan in all directions and zoom in, and it provided a view behind a privacy fence to an area that could not otherwise be seen by the public. The camera continuously recorded video surveillance footage of defendant’s property for three months.

            Police observed several drug transactions through the video camera feed. After one drug deal, police obtained a search warrant and conducted a physical search of defendant’s property, where they found approximately 20 pounds of methamphetamine and a half kilogram of cocaine.

            Defendant was charged with two counts of possession with intent to distribute controlled substances and two counts of conspiracy to commit these offenses. He filed a motion to suppress, which the trial court denied A jury found defendant guilty on all counts, and he was sentenced to 15 years in Department of Corrections’ custody.

            On appeal, defendant argued that the police violated the Fourth Amendment by using the camera to conduct the surveillance of his backyard without first obtaining a search warrant. Here, the police use of a video camera installed at the top of a utility pole to conduct continuous video surveillance of defendant’s fenced-in backyard for more than three months constituted a warrantless search that violated the Fourth Amendment. The fruits of the police surveillance were critical to obtaining the warrant to search defendant’s property, and the drugs recovered from the property were critical to the prosecution’s case. Accordingly, admission of the drugs into evidence was not harmless beyond a reasonable doubt.

            The judgment was reversed, and the case was remanded for a new trial.

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November 27, 2019

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