duress defense in Colorado

2024A. General Principles ¶ 7 “A criminal defendant is constitutionally entitled to effective assistance from his counsel.” Ardolino v. People , 69 P.3d 7 3, 76 (Colo. 2003).

2024A. General Principles ¶ 7 “A criminal defendant is constitutionally entitled to effective assistance from his counsel.” Ardolino v. People , 69 P.3d 7 3, 76 (Colo. 2003).

2024Cf. People v. Coahran, 2019 COA 6, ¶ 38 (failing to give a self-defense instruction eliminated the burden of disproving self-defense).

2024Cf. People v. Coahran, 2019 COA 6, ¶ 38 (failing to give a self-defense instruction eliminated the burden of disproving self-defense).

2024First, the Fourteenth Amendment’s Due Process Clause requires recusal when the 1 The court gave a duress instruction for counts 35, 40, 41 and 46, and Erickson concedes that he was not entitled to a duress instruction for first degree murder — counts 1 and 2. 4 objective “probability of actual bias . . . is too high to be constitutionally tolerable.” Sanders v. People, 2024 CO 33 , ¶ 29 (quoting Rippo v. Baker, 580 U.S. 285, 287 (2017)).

2024First, the Fourteenth Amendment’s Due Process Clause requires recusal when the 1 The court gave a duress instruction for counts 35, 40, 41 and 46, and Erickson concedes that he was not entitled to a duress instruction for first degree murder — counts 1 and 2. 4 objective “probability of actual bias . . . is too high to be constitutionally tolerable.” Sanders v. People, 2024 CO 33 , ¶ 29 (quoting Rippo v. Baker, 580 U.S. 285, 287 (2017)).

2021At most, it had only a slight tendency to make the 18 existence of the facts underlying Sauser’s duress defense “more probable or less probable than [they] would be without the evidence.” CRE 401; see People v. Skufca, 176 P.3d 83, 86 (Colo. 2008) (“To be admissible, res gestae evidence must also be relevant under CRE 401, which means that it must tend to ‘make the existence of any fact that is of consequence to the determination of the action more probable or less probable.’”). ¶ 42 Further, we disagree with Sauser’s argument that the trial court’s ruling on the excluded testimony effectively

2012See Dizon v. United States, 548 U.S. 1, 6 , 126 S.Ct. 2437 , 165 L.Ed.2d 299 (2006) ("The duress defense ... may excuse conduct that would otherwise be punishable, but the existence of duress normally does not controvert any of the elements of the offense itself."); Patterson, 482 U.S. at 201, 97 S.Ct. 2319 (an affirmative defense is not a "fact essential to the offense charged"); United States v. Petty, 132 F.3d 373, 378 (7th Cir, 1997) ("An affirmative defense goes beyond the elements of the offense to prove facts which somehow remove the defendant from the statutory threat of criminal Habil

2012See Dizon v. United States, 548 U.S. 1, 6 , 126 S.Ct. 2437 , 165 L.Ed.2d 299 (2006) ("The duress defense ... may excuse conduct that would otherwise be punishable, but the existence of duress normally does not controvert any of the elements of the offense itself."); Patterson, 482 U.S. at 201, 97 S.Ct. 2319 (an affirmative defense is not a "fact essential to the offense charged"); United States v. Petty, 132 F.3d 373, 378 (7th Cir, 1997) ("An affirmative defense goes beyond the elements of the offense to prove facts which somehow remove the defendant from the statutory threat of criminal Habil

2012See Dizon v. United States, 548 U.S. 1, 6 , 126 S.Ct. 2437 , 165 L.Ed.2d 299 (2006) ("The duress defense ... may excuse conduct that would otherwise be punishable, but the existence of duress normally does not controvert any of the elements of the offense itself."); Patterson, 482 U.S. at 201, 97 S.Ct. 2319 (an affirmative defense is not a "fact essential to the offense charged"); United States v. Petty, 132 F.3d 373, 378 (7th Cir, 1997) ("An affirmative defense goes beyond the elements of the offense to prove facts which somehow remove the defendant from the statutory threat of criminal Habil

2012See Dizon v. United States, 548 U.S. 1, 6 , 126 S.Ct. 2437 , 165 L.Ed.2d 299 (2006) ("The duress defense ... may excuse conduct that would otherwise be punishable, but the existence of duress normally does not controvert any of the elements of the offense itself."); Patterson, 482 U.S. at 201, 97 S.Ct. 2319 (an affirmative defense is not a "fact essential to the offense charged"); United States v. Petty, 132 F.3d 373, 378 (7th Cir, 1997) ("An affirmative defense goes beyond the elements of the offense to prove facts which somehow remove the defendant from the statutory threat of criminal Habil

2012See Speer, 255 P.3d at 1118-19 ("We have consistently construed our own statute ... as making the defense of duress ... unavailable in the absence of a specific and imminent threat of injury under cireumstances leaving the defendant no reasonable alternative other than to violate the law for which he stands charged." (emphasis added)); Palomo, 272 P.3d at 1110 ; People v. Yaklich 833 P.2d 758, 763 (Colo.App.1991). "42 Therefore, we conclude that the trial court did not err by refusing to instruct the jury that duress was a defense to either felony murder or second degree murder.

2012See Speer, 255 P.3d at 1118-19 ("We have consistently construed our own statute ... as making the defense of duress ... unavailable in the absence of a specific and imminent threat of injury under cireumstances leaving the defendant no reasonable alternative other than to violate the law for which he stands charged." (emphasis added)); Palomo, 272 P.3d at 1110 ; People v. Yaklich 833 P.2d 758, 763 (Colo.App.1991). "42 Therefore, we conclude that the trial court did not err by refusing to instruct the jury that duress was a defense to either felony murder or second degree murder.

2012See Dizon v. United States, 548 U.S. 1, 6 , 126 S.Ct. 2437 , 165 L.Ed.2d 299 (2006) ("The duress defense ... may excuse conduct that would otherwise be punishable, but the existence of duress normally does not controvert any of the elements of the offense itself."); Patterson, 482 U.S. at 201, 97 S.Ct. 2319 (an affirmative defense is not a "fact essential to the offense charged"); United States v. Petty, 132 F.3d 373, 378 (7th Cir, 1997) ("An affirmative defense goes beyond the elements of the offense to prove facts which somehow remove the defendant from the statutory threat of criminal Habil

2012Co., 252 Cal. App.2d 768 , 61 Cal.Rptr. 595, 600 (1967) (rejecting the argument that "there can 'be no 'commission of a felony until there has been a conviction thereof"). 119 Having reached this conclusion, we must now determine whether the prosecution has met the burden of proving that a defendant committed or attempted to commit the predicate. offense if it fails to disprove the defendant's duress defense.

2012Co., 252 Cal. App.2d 768 , 61 Cal.Rptr. 595, 600 (1967) (rejecting the argument that "there can 'be no 'commission of a felony until there has been a conviction thereof"). 119 Having reached this conclusion, we must now determine whether the prosecution has met the burden of proving that a defendant committed or attempted to commit the predicate. offense if it fails to disprove the defendant's duress defense.

2012See Dizon v. United States, 548 U.S. 1, 6 , 126 S.Ct. 2437 , 165 L.Ed.2d 299 (2006) ("The duress defense ... may excuse conduct that would otherwise be punishable, but the existence of duress normally does not controvert any of the elements of the offense itself."); Patterson, 482 U.S. at 201, 97 S.Ct. 2319 (an affirmative defense is not a "fact essential to the offense charged"); United States v. Petty, 132 F.3d 373, 378 (7th Cir, 1997) ("An affirmative defense goes beyond the elements of the offense to prove facts which somehow remove the defendant from the statutory threat of criminal Habil

2012The jury must simply find that the defendant committed or attempted to commit it."); accord State v. Jones, 274 Ga. 287 , 553 S.E.2d 612, 614-15 (2001); see also People v. Lucas, 232 P.3d 155, 166 (Colo.App.2009) ("[P ]redicate offenses are those for which all of the elements must be proved in order to sustain a conviction for a greater offense.").

2012The jury must simply find that the defendant committed or attempted to commit it."); accord State v. Jones, 274 Ga. 287 , 553 S.E.2d 612, 614-15 (2001); see also People v. Lucas, 232 P.3d 155, 166 (Colo.App.2009) ("[P ]redicate offenses are those for which all of the elements must be proved in order to sustain a conviction for a greater offense.").

2012The jury must simply find that the defendant committed or attempted to commit it."); accord State v. Jones, 274 Ga. 287 , 553 S.E.2d 612, 614-15 (2001); see also People v. Lucas, 232 P.3d 155, 166 (Colo.App.2009) ("[P ]redicate offenses are those for which all of the elements must be proved in order to sustain a conviction for a greater offense.").

2011See Bailey v. People, 630 P.2d 1062, 1068 (Colo.1981); People v. Preciado-Flores, 66 P.3d 155, 163 (Colo.App.2002).

2011We have long held that to be entitled to an instruction on a theory of defense or an affirmative defense, a defendant need present merely a "scintilla of evidence," alternatively stated as "some credible evidence" or "any credible evidence." Saavedra-Rodriguez, 971 P.2d at 228 ; Lybarger v. People, 807 P.2d 570, 579 (Colo.1991); see also § 18-1-407(1), C.R.S. (2010) (to raise an affirmative defense, a defendant must present "some credible evidence" on the issue).

2011See Lybarger, 807 P.2d at 579 .

2011See Bailey v. People, 630 P.2d 1062, 1068 (Colo.1981); People v. Preciado-Flores, 66 P.3d 155, 163 (Colo.App.2002).

1998Co., 724 P.2d 1379, 1384 (Colo.App.1986) (holding that an employer’s threat to blacklist an employee in an industry unless the employee consented to a modified employment contract with less favorable terms was duress because such blacklisting was a misdemeanor and therefore "improper”); Cooper v. Flagstaff Realty, 634 P.2d 1013, 1015 (Colo.App.1981) (permissible efforts to obtain that to which one was colorably entitled did not constitute duress); Wiesen v. Short, 43 Colo.App. 374, 375 , 604 P.2d 1191, 1192 (1979) (creditor was not placed under duress by threat of bankruptcy and other "busines

1998Co., 724 P.2d 1379, 1384 (Colo.App.1986) (holding that an employer’s threat to blacklist an employee in an industry unless the employee consented to a modified employment contract with less favorable terms was duress because such blacklisting was a misdemeanor and therefore "improper”); Cooper v. Flagstaff Realty, 634 P.2d 1013, 1015 (Colo.App.1981) (permissible efforts to obtain that to which one was colorably entitled did not constitute duress); Wiesen v. Short, 43 Colo.App. 374, 375 , 604 P.2d 1191, 1192 (1979) (creditor was not placed under duress by threat of bankruptcy and other "busines

1998Co., 724 P.2d 1379, 1384 (Colo.App.1986) (holding that an employer’s threat to blacklist an employee in an industry unless the employee consented to a modified employment contract with less favorable terms was duress because such blacklisting was a misdemeanor and therefore "improper”); Cooper v. Flagstaff Realty, 634 P.2d 1013, 1015 (Colo.App.1981) (permissible efforts to obtain that to which one was colorably entitled did not constitute duress); Wiesen v. Short, 43 Colo.App. 374, 375 , 604 P.2d 1191, 1192 (1979) (creditor was not placed under duress by threat of bankruptcy and other "busines

1998Co., 724 P.2d 1379, 1384 (Colo.App.1986) (holding that an employer’s threat to blacklist an employee in an industry unless the employee consented to a modified employment contract with less favorable terms was duress because such blacklisting was a misdemeanor and therefore "improper”); Cooper v. Flagstaff Realty, 634 P.2d 1013, 1015 (Colo.App.1981) (permissible efforts to obtain that to which one was colorably entitled did not constitute duress); Wiesen v. Short, 43 Colo.App. 374, 375 , 604 P.2d 1191, 1192 (1979) (creditor was not placed under duress by threat of bankruptcy and other "busines