People v. Janis

• Decision Date: 05 May 2016
• Docket Number: Court of Appeals No. 14CA1058
• Citation: 441 P.3d 1
• Parties: The PEOPLE of the State of Colorado, Plaintiff–Appellee, v. Erin D. JANIS, Defendant–Appellant.
• Court: Colorado Court of Appeals

441 P.3d 1

The PEOPLE of the State of Colorado, Plaintiff–Appellee,

v.Erin D. JANIS, Defendant–Appellant.

Court of Appeals No. 14CA1058

Colorado Court of Appeals, Division VI.

Announced May 5, 2016

Cynthia H. Coffman, Attorney General, Carmen Moraleda, Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee.

Gregory Lansky, Alternate Defense Counsel, Aurora, Colorado, for Defendant–Appellant.

Opinion by JUDGE NAVARRO¶ 1 Defendant, Erin D. Janis, appeals the judgment of conviction entered on a jury verdict finding her guilty of first degree assault. This case presents the following question: When the defendant is in custody, can defense counsel waive the defendant's constitutional right to be present for a critical stage of trial by informing the trial court that the defendant does not wish to be present? We conclude that the answer is "no." The defendant's personal waiver of this right on the record is required under such circumstances. As a result, we further conclude that the record here does not affirmatively show that Janis validly waived her constitutional right to be present during her accuser's trial testimony. We reverse the judgment and remand for a new trial.

I. Factual and Procedural History

¶ 2 In the early morning hours of August 31, 2012, Janis stabbed Farest Logan with a knife outside a bar on Colfax Avenue in Denver. Janis's friend then struck Logan, and both Janis and her friend jogged away from the scene. Janis was charged with committing assault in the first degree in violation of section 18–3–202(1)(a), C.R.S.2015.

¶ 3 At trial, Janis asserted self-defense—an affirmative defense in which she admitted that she had stabbed Logan. She testified that Logan had "helped" another person rape her two months before the stabbing; he had physically assaulted her earlier on the night of the stabbing; and he had, just before she stabbed him, threatened to terminate her pregnancy by assaulting her again. (Janis was pregnant at the time of the incident.) Because she suffered from severe post-traumatic stress disorder

(PTSD), Janis asserted that she became hypervigilant and saw threats where someone who did not suffer PTSD might not see them. She testified that she "felt it was necessary" to "protect" herself from Logan.

¶ 4 Logan acknowledged that he knew Janis "as a street person," but he denied threatening her or assaulting her earlier that night. He testified that, at the time of the stabbing, he was speaking with a friend, had one hand in his pocket, and was unarmed.

¶ 5 A jury convicted Janis as charged, and the trial court sentenced her to twelve years in prison.

II. Constitutional Right To Be Present At Trial

¶ 6 Janis contends that she did not validly waive her constitutional right to be present during Logan's testimony and that her absence from trial during his testimony amounted to reversible error. We agree.

A. Procedural History

¶ 7 On the first day of trial and before the jury was seated, the following colloquy occurred in response to defense counsel's oral motion:

DEFENSE COUNSEL: Judge, Ms. Janis has been diagnosed with severe PTSD for severe childhood trauma. She's on a lot of psychotropic medications.

In discussing this issue with [the defense's expert witness in forensic psychology], [the expert] suggested to me to approach the Court and ask if we could have some sort of signal that Ms. Janis could give when she is losing control and she could be removed from the courtroom. If she is forced to sit here and go through a lot of what I think we're going to have in this trial, [the expert] believes[,] and I agree, that it's going to start to retraumatize her. And I don't think there's any purpose for that.

So I'm going to ask the Court if we could do that, if she could be removed from the courtroom when she feels like she can't handle that anymore.

THE COURT: [Prosecutor], do you have a position on this?

PROSECUTOR: Well, I think she has a right to be here for the trial, but I don't think she has to stay.

THE COURT: That was my analysis as well.

PROSECUTOR: She's free to leave if she wants to....

THE COURT [to defense counsel]: Is the signal between you two or you'll tell me or what?

DEFENSE COUNSEL: I suppose the best way is if she can just tell me, and I'll just ask to approach the bench.

THE COURT: Okay. All right. Why don't we do that, because it's my feeling Ms. Janis has a right to be here for all of the trial. And if she chooses for her medical, emotional—for whatever reason, not to be at certain parts, that's her choice.

The trial court made no inquiry of Janis, and she did not make any statements to the court.¹

¶ 8 On the second day of trial, Janis was present, in custody, when Logan began to testify. As Logan began speaking, defense counsel asked to approach the bench and told the court, "My client is very uncomfortable. She would like to leave the courtroom now." The court responded, "[O]kay" and excused the jury. The following exchange occurred:

PROSECUTOR: Your Honor, before the defendant leaves, I'd like to make a record that she is voluntarily leaving the trial at this point in time. No one is forcing her to do it.

DEFENSE COUNSEL: We've already made this record.

PROSECUTOR: This actively and contemporaneously needs to be made. She's not being forced to be removed from the courtroom. She's leaving voluntarily.^[2]

¶ 9 The court asked no questions of Janis, and she made no statements on the record. The record reveals that she was removed from the courtroom. Defense counsel asked the court to instruct the jury not to consider Janis's absence, and the court agreed. Then, the following discussion took place about how Logan could identify Janis if she were not present and whether the defense would stipulate to such identification:

DEFENSE COUNSEL: Judge, I cannot stipulate on behalf of my client for such an essential element to the defense without discussing it with her.

....

THE COURT: Okay. So why don't we take a couple minutes and let you go talk to her about it.

[A recess was taken.]

THE COURT: We'll go back on the record. [Defense counsel]?

DEFENSE COUNSEL: Judge, Ms. Janis says, if her only options are to be [dragged] back into the courtroom so Mr. Logan can identify her, she will stipulate.

THE COURT: Okay.

PROSECUTOR: It is important for the record to note, again, that she voluntarily left the courtroom, and she can choose to voluntarily return.... [T]here is no force being involved here. This is an active choice on the part of the defendant.

THE COURT: I think the record should reflect that. It's an active choice of the defendant.

After Logan's testimony, Janis was brought back into the courtroom.

B. Standard of Review

¶ 10 Whether a trial court violated a defendant's right to be present is a constitutional question that we review de novo. People v. Wingfield, 2014 COA 173, ¶ 13, 411 P.3d 869. If a defendant's right to be present was violated, and the issue was preserved at trial, we assess whether the constitutional error was harmless beyond a reasonable doubt. Luu v. People, 841 P.2d 271, 275 (Colo.1992) ; see People v. Cardenas, 2015 COA 94M, ¶ 23, 411 P.3d 956. If the error was not preserved, however, we may reverse only if plain error occurred. See People v. Miller, 113 P.3d 743, 749 (Colo.2005) (holding that unobjected-to constitutional "trial errors," unlike "structural errors," are subject to plain error analysis); Luu, 841 P.2d at 274–75 (holding that deprivation of the right to be present was a "trial error"); People v. Garcia, 251 P.3d 1152, 1156 (Colo.App.2010) (applying plain error in this context).

¶ 11 We are not persuaded by the People's contention that the doctrines of waiver or invited error apply to Janis's claim. The People rely on the facts that defense counsel asked that Janis be removed during Logan's testimony and counsel indicated that no further record discussion on the issue was necessary. As we shall explain, however, a defendant's constitutional right to be present at a critical stage of trial is a personal right that cannot be waived by counsel.

¶ 12 Still, the record does not reveal that Janis personally objected to being removed. Therefore, plain error review applies here. See Garcia, 251 P.3d at 1156 ("Because neither defendant nor his counsel asserted a contemporaneous objection on this issue [of defendant's right to be present], we review for plain error."); People v. Munsey, 232 P.3d 113, 120 (Colo.App.2009) (same).

C. The Record Does Not Show That Janis Validly Waived Her Constitutional Right To Be Present At Trial

1. Legal Principles

¶ 13 A defendant has a constitutional right to be present at every critical stage of trial. Luu, 841 P.2d at 273. "The [federal] constitutional right to presence is rooted to a large extent in the Confrontation Clause of the Sixth Amendment, but ... [that] right is protected by the Due Process Clause in some situations where the defendant is not actually confronting witnesses or evidence against him." Id. (alterations in original) (quoting United States v. Gagnon, 470 U.S. 522, 526, 105 S.Ct. 1482, 84 L.Ed.2d 486 (1985) ); see U.S. Const. amends. VI and XIV ; Cardenas, ¶ 21.

¶ 14 Whether secured by the Sixth or Fourteenth Amendments, however, the right to presence is not absolute. Luu, 841 P.2d at 273 ; see People v. Stephenson, 165 P.3d 860, 868 (Colo.App.2007). The Constitution requires that a defendant be allowed to be present only to the extent that a fair and just hearing would be thwarted by the defendant's absence. Luu, 841 P.2d at 275 ; People v. Harris, 914 P.2d 434, 437 (Colo.App.1995). Accordingly, a defendant must be able to show how his or her absence affected the ability to defend against the charges. Harris, 914 P.2d at 437. If the proceeding involves only legal questions, for instance, the defendant's absence would not impact the defense because it is not likely the defendant would contribute any expertise on such matters. People v. Mumford, 275 P.3d 667, 672 (Colo.App.2010), aff'd, 2012 CO 2, 270 P.3d 953. In...