People v. Jones

• Decision Date: 01 June 2020
• Docket Number: Supreme Court Case No. 18SC445
• Citation: 464 P.3d 735
• Parties: The PEOPLE of the State of Colorado, Petitioner, v. Andre Demetrius Willi JONES, Respondent.
• Court: Colorado Supreme Court

464 P.3d 735

The PEOPLE of the State of Colorado, Petitioner,

v.Andre Demetrius Willi JONES, Respondent.

Supreme Court Case No. 18SC445

Supreme Court of Colorado.

June 1, 2020

Attorneys for Petitioner: Philip J. Weiser, Attorney General, Erin K. Grundy, Assistant Attorney General, Denver, Colorado

Attorneys for Respondent: Megan A. Ring, Public Defender, James S. Hardy, Lead Deputy Public Defender, Denver, Colorado

En Banc

JUSTICE HOOD delivered the Opinion of the Court.

¶1 A jury concluded that Andre Jones shot and killed his estranged and pregnant wife. Although she died, medical personnel managed to deliver her severely injured baby. The jury found Jones guilty of many crimes related to the shooting, including first degree murder of his wife and child abuse resulting in serious bodily injury.

¶2 A division of the court of appeals reversed. First, it determined that the trial court erred by excluding Jones's parents from the courtroom during the testimony of two witnesses. The division therefore reversed the judgment of conviction and remanded the case for a new trial. Second, in a split decision, the division also held that Jones could not be retried for child abuse because an unborn fetus, even if later born alive, is not a "person" under the child abuse statute.

¶3 We affirm the division's decision on both issues, albeit on slightly different grounds as to the child abuse issue. First, the trial court's exclusion of Jones's parents constituted a partial closure of the courtroom that violated Jones's Sixth Amendment right to a public trial. Because that error was structural, Jones is entitled to a new trial. Second, we cannot discern the legislature's intent regarding a defendant's criminal liability under the child abuse statute for injury he caused to an unborn fetus who is later born alive. Under the rule of lenity, we therefore vacate Jones's conviction for child abuse and conclude that he may not be retried on that charge.

I. Facts and Procedural History

¶4 The record at trial established the following facts.

¶5 Jones broke into his estranged wife's apartment while she was not home. He then lay in wait until she returned. As she attempted to unlock her front door, he fired a gun through the door, shooting her in the abdomen. She died shortly after reaching the hospital. At the time, she was about thirty weeks pregnant.

¶6 As a result of the mother's blood loss, the fetus was deprived of oxygen for an extended period of time. Although the baby survived, she was born with—and continues to endure—severe neurological deficits. The baby suffered a brain injury

, which caused lack of muscle control. She is unable to breathe or swallow on her own. Therefore, she has a surgically implanted tube that allows her to eat, though its use requires frequent hospital visits. She also has vision and hearing loss.

¶7 The prosecution charged Jones with first degree murder (after deliberation), first degree murder (felony murder), unlawful termination of a pregnancy, child abuse resulting in serious bodily injury, second degree burglary, first degree trespass, possession of a defaced firearm, and two crime-of-violence counts. Jones's defense at trial was one of identity—he asserted that he was not the perpetrator. A jury convicted Jones as charged, and the court sentenced him to a cumulative term of life in prison.

¶8 Jones appealed. Among other things, Jones asserted that (1) the trial court violated his constitutional right to a public trial by excluding his parents from the courtroom during the testimony of his two children; and (2) he could not be tried for child abuse because the child abuse statute does not recognize an unborn fetus as a "person," even if the fetus is subsequently born alive.

¶9 A division of the court of appeals unanimously agreed with Jones that the trial court had violated his right to a public trial and that a new trial was warranted. People v. Jones , No. 14CA1752, ¶ 1, 2018 WL 1960648 (Apr. 19, 2018). It therefore reversed the judgment of conviction, vacated Jones's sentences, and remanded the case for a new trial. Id.

¶10 The division was divided, however, on whether Jones could be retried for child abuse. The majority concluded that, under the child abuse statute, a fetus is not a "person." Id. at ¶ 45. Accordingly, the division held that on remand, Jones could only be tried "for the offenses of first degree murder after deliberation, second degree burglary, and possession of a defaced firearm." Id. at ¶ 82. In his dissent, Judge Webb concluded that the prosecution should be able to retry Jones for child abuse, primarily based on the common law "born alive" doctrine, id. at ¶ 83, which we discuss in greater detail below.

¶11 We granted the prosecution's petition for certiorari review.¹

II. Analysis

¶12 We first address a defendant's constitutional right to a public trial. We examine what constitutes a closure of the courtroom implicating that right. Based on the circumstances presented here, we conclude that there was a partial closure that violated Jones's right to a public trial. Because this constituted structural error, Jones is entitled to a new trial.

¶13 We also interpret the term "person" as it is used in the child abuse statute. After using various tools of statutory construction and failing to ascertain the General Assembly's intent, we resort to the rule of lenity and conclude that the term "person," as used in the child abuse statute, does not include an unborn fetus. Accordingly, on remand, Jones may not be retried for that charge.

A. Sixth Amendment Right to a Public Trial

1. Standard of Review

¶14 We review a trial court's decision to close the courtroom as a mixed question of law and fact. People v. Hassen , 2015 CO 49, ¶ 5, 351 P.3d 418, 420. Thus, "we accept the trial court's findings of fact absent an abuse of discretion, but we review the court's legal conclusions de novo." Id. (quoting Pena-Rodriguez v. People , 2015 CO 31, ¶ 8, 350 P.3d 287, 289, rev'd on other grounds , ––– U.S. ––––, 137 S. Ct. 855, 197 L.Ed.2d 107 (2017) ).

2. The Right to a Public Trial Generally

¶15 "Both the United States and the Colorado Constitutions guarantee criminal defendants the right to a public trial." Id. at ¶ 7, 351 P.3d at 420 ; see U.S. Const. amends. VI, XIV ; Colo. Const. art. II, § 16.

¶16 This right "is for the benefit of the accused; that the public may see he is fairly dealt with and not unjustly condemned, and that the presence of interested spectators may keep his triers keenly alive to a sense of their responsibility and to the importance of their functions." Waller v. Georgia , 467 U.S. 39, 46, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984) (quoting Gannett Co. v. DePasquale , 443 U.S. 368, 380, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979) ). Courts specifically recognize the important role a defendant's family members play in reminding the trial participants of this duty. See, e.g. , In re Oliver , 333 U.S. 257, 272, 68 S.Ct. 499, 92 L.Ed. 682 (1948) ; United States v. Rivera , 682 F.3d 1223, 1230 (9th Cir. 2012).

¶17 Further, "[i]n addition to ensuring that [the] judge and prosecutor carry out their duties responsibly, a public trial encourages witnesses to come forward and discourages perjury." Waller , 467 U.S. at 46, 104 S.Ct. 2210 ; see Globe Newspaper Co. v. Superior Court , 457 U.S. 596, 606, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982) ("Public scrutiny of a criminal trial enhances the quality and safeguards the integrity of the factfinding process .... [P]ublic access to criminal trials permits the public to participate in and serve as a check upon the judicial process—an essential component in our structure of self-government.").

¶18 A public trial also protects the public's and the press's qualified First Amendment rights to attend a criminal trial. Waller , 467 U.S. at 44, 104 S.Ct. 2210 ; Richmond Newspapers, Inc. v. Virginia , 448 U.S. 555, 580, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980). "While innocent defendants benefit from the potential advantages of public trials ... a guilty defendant may prefer secret proceedings where bribes, intimidation, or unfavorable verdicts can pass without ‘the bracing sunshine of publicity.’ Society, however, has an interest in fair outcomes in both situations." Kristin Saetveit, Close Calls: Defining Courtroom Closures Under the Sixth Amendment , 68 Stan. L. Rev. 897, 903 (2016) (citations omitted) (quoting Akhil Reed Amar, Sixth Amendment First Principles , 84 Geo. L.J. 641, 677 (1996)) ; see Richmond Newspapers , 448 U.S. at 571, 100 S.Ct. 2814 ("[T]he open processes of justice serve an important prophylactic purpose, providing an outlet for community concern, hostility, and emotion.").

¶19 Armed with these noble sentiments, we must now figure out how to deploy them. First, what does it mean to have a "public" trial? Of course, in the most general sense, the term defines itself: A "public" trial is one that is not secret; it is one that the public is free to attend. Hampton v. People , 171 Colo. 153, 465 P.2d 394, 399 (1970).

¶20 But this broad definition has limitations. Given competing interests, a criminal defendant's right to a public trial is not absolute. At times, it must yield to concerns such as "the defendant's right to a fair trial or the government's interest in inhibiting disclosure of sensitive information." Waller , 467 U.S. at 45, 104 S.Ct. 2210 ; accord Hassen , ¶ 8, 351 P.3d at 421. Thus, while the total exclusion of the press and the public generally amounts to a closure, such closures may be permissible under certain circumstances.

¶21 Recently, we noted that these circumstances "will be rare" and "the balance of interests must be struck with special care." Hassen , ¶ 8, 351 P.3d at 421 (quoting Waller , 467 U.S. at 45, 104 S.Ct. 2210 ). To justify a closure, (1) "the party seeking to close the [proceeding] must advance an overriding interest that is likely to be prejudiced"; (2) "the closure must be no broader than necessary to protect that interest"...