Judicial Discipline—Sanctions.

In this judicial disciplinary proceeding, the Supreme Court considered the exceptions of a now-former Colorado Court of Appeals judge to the Colorado Commission on Judicial Discipline’s (Commission’s) recommendation that the judge beremoved from office and ordered to pay the costs the Commission incurred in this matter.

The Commission’s recommendation was based on factual findings and conclusions of law determining that the judge had violated Canon 1, Rule 1.2, Canon 3, Rule 3.1, and Canon 3, Rule 3.5 of the Colorado Code of Judicial Conduct by (1) disclosing confidential information belonging to the Court of Appeals (namely, the vote of a Court of Appeals division on a case prior to the issuance of the decision in that case) to an intimate, non-spousal partner, and (2) using inappropriate racial epithets in communications with that intimate partner, including a racially derogatory reference to a Court of Appeals colleague.

The Supreme Court concluded that the Commission properly found that the judge’s communications with the judge’s then-intimate partner were not protected by the First Amendment. The Court further concluded that, given the judge’s resignation, which the judge tendered and which became effective after the Commission made its recommendation, the Court need not decide whether the judge’s removal from office was an appropriate sanction. Rather, the Court concluded that the appropriate sanction in this case is the acceptance of the judge’s resignation, the imposition of a public censure, and an order requiring the judge to pay the Commission’s costs in this matter.

Jury Instructions—Reasonable Doubt—Burden of Proof—Due Process.

In this case, the Supreme Court considered whether the trial court’s jury instruction defining “hesitate to act” lowered the prosecution’s burden of proof in violation of due process. The Court held that the instruction did not lower the prosecution’s burden of proof in violation of due process. Because the instruction was nonsensical, given only once during voir dire, not referenced by either party at any time, and flanked by the proper instruction regarding the burden of proof at the beginning and end of trial, there is not a reasonable likelihood that the jury understood the instruction and applied it in a manner that lowered the prosecution’s burden.

Investigatory Stop—Grounds for Stop or Investigation—Fellow-Officer Rule.

An extensive narcotics investigation culminated in arrest warrants for defendant and her significant other based on their alleged distribution of controlled substances. While attempting to execute the warrants, deputies observed a truck belonging to defendant’s significant other driving away from the residence shared by the couple. The deputies suspected that defendant was a passenger in the truck. As the deputies tried to stop the truck, it evaded them. At one point, the deputies observed a white bag fly out of the passenger window, which supported their belief that there was a passenger in the truck. The truck eventually stopped within a mile of the home. Inside, they located defendant’s significant other, but not defendant. Moments later, however, defendant was spotted a couple of hundred yards away, attempting to hitch a ride. It was a frigid and snowy night, the roads were slippery, and there was no easy access on foot between the home and the location of the stop. A deputy who recognized defendant detained her, and she was later arrested on her outstanding warrant.

The trial court suppressed all evidence and observations derived from defendant’s stop, finding that the deputies lacked reasonable, articulable suspicion to detain her. Later, the trial court explained that its suppression order included the deputies’ observations and investigation before they contacted defendant. The Supreme Court reversed. It concluded that the deputies had reasonable, articulable suspicion to stop defendant. It further concluded that the trial court lacked authority to suppress the deputies’ observations and investigation before they contacted defendant.