People v. Cohn

• Citation: 160 P.3d 336
• Decision Date: 08 March 2007
• Docket Number: No. 05CA0295.,05CA0295.
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Douglas Morgan COHN, Defendant-Appellant.
• Court: Court of Appeals of Colorado

160 P.3d 336

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Douglas Morgan COHN, Defendant-Appellant.

No. 05CA0295.

Colorado Court of Appeals, Div. IV.

March 8, 2007.

Rehearing Denied March 29, 2007.

John W. Suthers, Attorney General, Steve Radetsky, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

The Viorst Law Offices, P.C., of Counsel, Hochstadt, Straw, Strauss & Silverman, P.C., Anthony Viorst, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge BERNARD.

Defendant, Douglas Morgan Cohn, appeals the judgment of conviction entered upon jury verdicts finding him guilty as charged of six felony counts of first degree offering a false instrument for recording. We reverse the judgment and remand for a new trial.

I. Background

The charges against defendant arose from the following events. Defendant's brother owned property in a covenant controlled community, which was governed by a homeowners association. In 2002, the association filed a covenant violation lien against the brother's property.

Thereafter, defendant filed six mechanic's liens against the property of certain association board members. All six liens claimed that defendant had performed work for the property owner or had provided materials for their property. Five of the liens claimed that the property owner owed defendant $1,000. However, the sixth lien did not include a dollar amount owed. The association subsequently hired an attorney, who had to file civil actions to get the liens extinguished.

II. Removing a Pro Se Defendant from the Courtroom

Defendant, who represented himself at trial, contends the trial court violated his constitutional right to the assistance of counsel by removing him from the courtroom at various times during the trial without permitting him to appear by means of video conferencing equipment and without counsel being appointed to represent him in his absence. While we conclude defendant's exclusion during some trial testimony was harmless under the facts of this case, we agree the convictions must be reversed because defendant was excluded during portions of jury selection and denied the opportunity to exercise any peremptory challenges.

A. Defendant's Conduct

In a pretrial suppression hearing, defendant, acting as his own attorney, began his cross-examination of a witness with a statement about the facts of the case. When the court instructed him to ask a question, defendant continued his statement, moving on to claims the proceedings against him were a "political show trial" and the victims should be prosecuted. When the trial court ordered him to sit down, he refused. He said:

This is the second violent handgun felony crime to attempt to gag me. If you want these kind of show-trial proceedings, why don't you meet me in the backroom and simply throw darts at a dartboard four out of five that land. These are kangaroo court show-trial proceedings. It's backed by illegitimate state violence. If I have a trial . . . in front of a dozen jurors . . . I'm simply going to state my case repeated[ly]. Illegal violent action to gag defendants you [use] . . . to enforce the laws are almost always . . . [against] working class men. If you attempt to gag me, I will not be gagged based on a threat. . . . It is going to take a large amount of state violence to gag me. I don't think you're going to look too good to a jury pool. These proceedings are extortion using state violence to attempt to gag me.

At this point, defendant was removed from the courtroom.

After some discussion with the prosecutor, the trial court decided to have defendant evaluated to determine whether he was competent to stand trial under §§ 16-8-110 and 16-8-111, C.R.S.2006. The court expressed its concern that, "[U]nless [defendant] is bound and gagged [he] will disrupt the proceeding. It's clear that he will. He's already done that . . . as most recently demonstrated here in court."

The examiner determined defendant was competent to proceed, although he diagnosed defendant with a persecutory delusional disorder, a personality disorder with paranoid and schizoid features, and several psychosocial stressors, including chronic mental illness. At the hearing discussing this report, defendant complained the trial court had again engaged in "state handgun violence" against him and asserted the competency evaluation had violated his privacy. He said he was competent to proceed. The court found him competent, set a trial date, and reminded defendant the issue at trial would be the charges against him.

At trial, defendant began his portion of jury selection by stating the charges against him constituted government extortion. He added that the court had engaged in "state violent handgun crime," a term he did not define, in order to gag him by removing him from the courtroom during a pretrial proceeding and by excluding one of his witnesses from the courtroom on that day. Defendant proceeded to make several lengthy statements about his theory of the case and about how the trial court was violating the Constitution while presiding over the case.

The trial court repeatedly interrupted defendant, ordering him to ask questions of the prospective jurors, not to make speeches or statements. When defendant persisted, the trial court ordered the jury removed and inquired whether defendant would ask the jurors questions and refrain from making speeches. When defendant indicated he intended to continue to make a statement as well as ask questions, the court indicated defendant had "finished jury selection questioning" because he would not follow the court's orders. The court stated the jurors would be returned to the courtroom, and the parties could then exercise their peremptory challenges. As part of these comments, the trial court indicated defendant could be removed from the courtroom if he continued to disobey the court's orders. Defendant replied:

I have a guaranteed right under the U.S. Constitution assuming certain time limits and so on to be present at each and every phase of the court proceedings to state my case within time limits respecting the right of other people to speak.

Upon the jury's return, rather than exercise a peremptory challenge when asked, defendant began to tell the jurors why they had been "excluded from the courtroom" and again referred to the trial court as a "violent handgun criminal." When the trial court inquired whether defendant was "going to exercise a peremptory challenge," defendant continued his comments about the trial court and the victims engaging in extortion. The trial court ordered the sheriff's deputies to remove defendant from the courtroom. Defendant objected, stating, "If they conduct a trial in absentia, this is completely unconstitutional. This is completely illegal."

The trial court, in defendant's absence, explained to the jury why defendant had been removed from the courtroom. Defendant was not present when the prosecutor exercised four peremptory challenges and was not given an opportunity to exercise any peremptory challenges of his own.

Outside of the jury's presence, the trial court informed the prosecutor the court was thinking of making videoconferencing arrangements to allow defendant to watch the proceedings from another location and so be less disruptive. These efforts were unsuccessful.

Defendant was returned to the courtroom, the jury was sworn, and the prosecutor and defendant made opening statements to the jury. Defendant's statement initially focused on his version of the facts of the case, but he eventually returned to the theme of how the trial court had violated his rights in the course of presiding over his case. The court told him to stop talking about this issue four times, and, in the latter two admonitions, added defendant would be removed from the courtroom if he persisted. Defendant then stated the "bulk" of his opening argument was concluded, but he wished to summarize the "violent handgun crimes" the trial court had committed. The trial court ordered the sheriff's deputy to remove defendant from the courtroom. Defendant indicated he did not wish to leave.

After defendant had been removed, the prosecution called its first witness, one of the victims. Defendant was absent for her entire testimony and was not given an opportunity to cross-examine her.

The trial court then brought defendant back into court. Outside of the jury's presence, the trial court told defendant he would not be allowed to disrupt the proceedings, noting defendant had previously excluded himself from the trial by his own actions. Defendant would be allowed to remain in the courtroom and participate in the trial if he followed the procedure the trial court prescribed. However, he would be excluded if he did not follow the court's directions. When the trial court told him he would not be allowed to talk about "state handgun violence" and asked defendant whether he wished to participate in his trial, defendant responded:

I intend to participate every second of every minute of these kangaroo court proceedings and I insist on my right to do so. To the extent I do not participate for one second or one minute, it is because you ordered me illegally locked out. I fully intend to 100 percent participate.

Defendant was present for the rest of the testimony presented in the case. He cross-examined witnesses, argued for a judgment of acquittal at the end of the prosecution's case, called one defense witness, declined to testify after being advised of his rights, participated in a conference with the trial court and the prosecutor concerning proposed jury instructions, and delivered a short closing argument, much of which was devoted to criticisms of the trial court and the prosecutor.

B. Right to Be Present in Court

A defendant has the right, under the Confrontation Clause of the Sixth Amendment and due process principles, to be present in court during all parts of a trial. Se...