People v. Boyd
Decision Date | 13 August 2015 |
Docket Number | Court of Appeals No. 12CA2607 |
Parties | The PEOPLE of the State of Colorado, Plaintiff–Appellee, v. Pamela Kathleen BOYD, Defendant–Appellant. |
Court | Colorado Court of Appeals |
Cynthia H. Coffman, Attorney General, Kevin E. McReynolds, Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee
Douglas K. Wilson, Colorado State Public Defender, Sean J. Lacefield, Deputy Public Defender, Denver, Colorado, for Defendant–Appellant
Opinion by JUDGE MILLER
¶ 1 Defendant, Pamela Kathleen Boyd, appeals the judgment of conviction entered on a jury verdict finding her guilty of attempted distribution of marijuana and possession of marijuana. We affirm the attempted distribution conviction, reverse the possession conviction, and remand the case to the trial court with directions.
¶ 2 In People v. Russell, 2014 COA 21M, 396 P.3d 71 (cert. granted Feb. 23, 2014), a division of this court1 examined section 16(3)(a) of article XVIII of the Colorado Constitution ( ), which decriminalized the possession of one ounce or less of marijuana. The division applied section 16(3)(a) retroactively to convictions pending appeal on December 10, 2012, when the amendment became effective. Russell, ¶ 20. Defendant in this case relies on Russell in asking this division to vacate her possession conviction. The People point out that this division is not bound by the Russell division, see People v. White, 179 P.3d 58, 60–61 (Colo.App.2007), assert that Russell was wrongly decided, and ask us to affirm that conviction.
¶ 3 Because the People rely on the same arguments they made in Russell, we might be tempted to reject those arguments for the reasons set forth in the Russell opinion and reverse the possession conviction with little further discussion. We resist that temptation, however, in light of the thoughtful and carefully researched opinion by Judge Bernard (hereinafter the dissent), which identifies significant issues of substance not raised by the People in either Russell or this case. In recognition of our authority to affirm the trial court's judgment on any ground supported by the record, see People v. Quintana, 882 P.2d 1366, 1371 (Colo.1994), we address those issues as well as the People's.
¶ 4 After briefly reviewing the factual and procedural background of the case, we turn first to a separate issue concerning comments by the trial court; if defendant were to prevail on that issue, we would reverse both the possession and attempted distribution convictions.
¶ 5 An undercover police officer approached defendant and her boyfriend while they were in the boyfriend's van. The officer purchased marijuana from the boyfriend. The boyfriend put the cash received from the officer on the van's dashboard. Defendant and her boyfriend then drove away. Other police officers stopped the van and arrested defendant and her boyfriend. The officers found a small amount of marijuana and the cash from the undercover officer in defendant's pocket.
¶ 6 A jury convicted defendant of possession of marijuana and attempted distribution of marijuana. The trial court held a hearing and found that defendant was subject to a sentence enhancer on the attempted distribution conviction because she had been previously convicted of distribution of marijuana.
¶ 7 Defendant contends, for the first time on appeal, that certain comments by the trial court during voir dire incorrectly instructed the prospective jurors, including those ultimately seated, regarding the presumption of innocence. We are not persuaded.
¶ 8 The trial court explained the presumption of innocence and the prosecutor's burden of proof to the jury:
¶ 9 Defendant's counsel did not contemporaneously object to these comments. However, defendant argues now that the comments were "self-defeating" in that they unnecessarily diluted the significance and confused the meaning of the presumption of innocence for the jury.
¶ 10 Because defendant failed to object, we review only for plain error. Hagos v. People, 2012 CO 63, ¶ 14, 288 P.3d 116. Plain error review is limited to "particularly egregious errors" that are both obvious and substantial. Id. "We reverse under plain error review only if the error so undermined the fundamental fairness of the trial itself so as to cast serious doubt on the reliability of the judgment of conviction." Id. (internal quotation marks omitted).
Id. at 87–88, 470 P.2d at 29. While the supreme court reversed the conviction on other grounds, it held that the instruction was not a good statement of the law and should not be given in future cases. Id. at 87, 470 P.2d at 29
¶ 12 We agree with defendant that the trial court's comments—though, in our view, not an instruction—were not a good statement of the law. In accordance with Martinez, the court should have avoided any comment during voir dire that implied that the presumption of innocence allows guilty defendants to avoid conviction. However, because these remarks by the trial court did not reflect adversely on defendant or on the issue of her innocence, we do not perceive them to be egregious or prejudicial. See People v. Martinez, 224 P.3d 1026, 1030 (Colo.App.2009) (), aff'd on other grounds, 244 P.3d 135 (Colo.2010).
¶ 13 Taken in context, these comments explained how high the prosecution's burden of proof is and attempted to explain that a verdict of not guilty simply means that the prosecution has not met its burden. Moreover, any risk of prejudice here was mitigated by the court's written jury instructions, which correctly articulated the burden of proof and the presumption of innocence and which we presume the jury understood and correctly applied. See People v. Estes, 2012 COA 41, ¶ 12, 296 P.3d 189 ; People v. Lucas, 232 P.3d 155, 163 (Colo.App.2009). Thus, although we disapprove the court's explanation as confusing, it did not constitute plain error in this case. See Estes, ¶ 12.
¶ 14 Defendant asserts Amendment 64 applies retroactively to decriminalize her possession of marijuana, as held in Russell, and, consequently, her conviction for possession of less than one ounce of marijuana should be vacated. We agree.
¶ 15 In construing a constitutional amendment, our goal is to determine and give effect to the will of the people in adopting it. Huber v. Colo. Mining Ass'n, 264 P.3d 884, 889 (Colo.2011). We apply general rules of statutory construction in construing citizen-initiated measures. Id. One of these rules is that we presume that when the legislature enacts a statute, it is aware of its own enactments and existing case law precedent. See Anderson v. Longmont Toyota, Inc., 102 P.3d 323, 330 (Colo.2004). We therefore make the same presumption with regard to the drafters of a citizen-initiated measure. In addition, we must adopt a construction that avoids or resolves potential conflicts, giving effect to all legislative acts, if possible. Huber, 264 P.3d at 892. Finally, we avoid interpretations that lead to unjust, absurd, or unreasonable results. Id. at 889.
¶ 16 Section 16(3) provides that possession of one ounce or less of marijuana and certain other acts "are not unlawful." Section 16(9) provides that all provisions of Amendment 64 "shall become effective upon official declaration of the vote hereon by proclamation of the governor...." The governor made the proclamation on December 10, 2012. 2013 Colo. Sess. Laws 3300.
¶ 17 In Russell, a division of this court concluded that section 16(3)(a) applies retroactively to convictions for possession of less than one ounce of marijuana that were pending appeal on December 10, 2012. Russell, ¶ 20.
¶ 18 The analysis in Russell is based on a statute and the common law. See Russell, ¶ 12. The statutory source is the identically worded predecessor to current section 18–1–410(1)(f)(I), C.R.S. 2014, which enabled a convicted defendant to request postconviction relief when "there has been significant change in the law, applied to the applicant's conviction or sentence,...
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