People v. Boyd, Court of Appeals No. 12CA2607

Docket NºCourt of Appeals No. 12CA2607
Citation395 P.3d 1128
Case DateAugust 13, 2015
CourtCourt of Appeals of Colorado

395 P.3d 1128

The PEOPLE of the State of Colorado, Plaintiff–Appellee,
Pamela Kathleen BOYD, Defendant–Appellant.

Court of Appeals No. 12CA2607

Colorado Court of Appeals, Div. IV.

Announced August 13, 2015

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


¶ 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 (section 16 is popularly known as Amendment 64), 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.

I. Background

¶ 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

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conviction because she had been previously convicted of distribution of marijuana.

II. Trial Court's Comments

¶ 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:

[T]he Prosecution has to prove, beyond a reasonable doubt, that [defendant] is guilty.

If the Prosecution does that, then it will be your duty, as jurors, to say she's guilty. If the Prosecution doesn't meet that standard, then it will be your obligation, as jurors, to say she's not guilty.

Not that she's innocent, notice, but that she's not guilty. And that means not proven beyond a reasonable doubt.


[I]t's better to acquit 100 guilty people than to convict one innocent person.

You can agree with that, or disagree with that. That's not part of the Constitution. But I've heard that as an explanation for why we have such a high burden of proof before somebody can be found guilty of a crime, that that's such a serious judgment that we ought to be sure, at least as sure as we can, which is sure beyond a reasonable doubt, before we say somebody broke the law.

And if the District Attorney doesn't prove [defendant is guilty beyond a reasonable doubt], find her not guilty, which, again, doesn't mean she's innocent anymore [sic] than any of us is innocent, in the sense of a newborn baby.

It just means not proven.

¶ 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).

¶ 11 Defendant cites Martinez v. People, 172 Colo. 82, 88–89, 470 P.2d 26, 29–30 (1970), in support of his argument that it is incorrect for the trial court to give an instruction implying that the presumption of innocence allows guilty persons to go free. In that case, the trial court had given what was then a stock instruction that the presumption of innocence

is not intended to aid anyone who is in fact guilty of crime, to escape, but is a humane provision of the law, intended, so far as human agencies can, to guard against the danger of an innocent person being unjustly punished.

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) ("[C]asual remarks by the trial court ... do not constitute reversible error unless they reflect adversely upon the defendant or upon the issue of his or her guilt or innocence."),

395 P.3d 1132

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.

III. Retroactivity of Amendment 64

¶ 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.

A. Russell and Thomas

¶ 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...

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