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LePage v. People

Supreme Court of Colorado, En Banc

February 24, 2014

Tyler N. LePage, Petitioner
v.
The People of the State of Colorado, Respondent

Certiorari to the Colorado Court of Appeals. Court of Appeals Case No. 09CA676.

Judgment Affirmed.

SYLLABUS

In this case, the supreme court considers whether the court of appeals correctly applied the presumption of regularity when it determined that the jury did not receive the correct verdict forms. The supreme court holds that where the trial court read the correct elemental instructions and verdict form in question to the jury, the party asserting error has not overcome the presumption of regularity by pointing to the order and stapling of the verdict forms in the record and ambiguous statements in the trial transcript.

For Petitioner: Douglas K. Wilson, Public Defender, James S. Hardy, Deputy Public Defender, Denver, Colorado.

For Respondent: John W. Suthers, Attorney General, Ryan A. Crane, Assistant Attorney General, Denver, Colorado.

OPINION

Page 349

BOATRIGHT, JUSTICE.

[¶1] In this appeal, we consider whether the court of appeals correctly applied the presumption of regularity when it determined that the jury did not receive the correct verdict forms. The transcript here shows that the trial judge read the jury the correct elemental instructions and verdict forms, from which it can be inferred that the jury received the correct verdict forms. When the record was certified on appeal, however, one of the verdict forms was stapled to a refused jury instruction that was not given to the jury, raising the inference that the jury may not have received the correct verdict forms. Therefore, inconsistent inferences can be drawn from the record.

[¶2] We hold that where the trial court read the correct elemental instructions and verdict form in question to the jury, LePage has not overcome the presumption of regularity by pointing to the order and stapling of the verdict forms in the record and ambiguous statements in the trial transcript. Thus, LePage failed to show that the jury did not receive the correct verdict forms. While the court of appeals affirmed the trial court's judgment because it held that failure to give the jury the verdict form for the lesser included offense is not reversible error, we affirm the trial court's judgment because LePage did not show that the trial court erred. Therefore, we affirm the court of appeals on other grounds and remand the case to that court to be returned to the trial court for further proceedings consistent with this opinion.

Page 350

I. Facts and Proceedings Below

[¶3] Petitioner Tyler N. LePage was serving a life sentence at a correctional facility when he was charged with second degree assault for injuring two correctional officers. His case proceeded to a jury trial.

[¶4] During a conference regarding the jury instructions and verdict forms, LePage asked the trial court to instruct the jury about the lesser included offense of obstruction of a peace officer and third degree assault. The trial judge refused the third degree assault instruction but agreed to instruct the jury about the lesser included offense[1] of obstruction of a peace officer in addition to second degree assault. As the judge compiled the jury instructions, the prosecutor offered to " run downstairs and get a verdict form for the obstruction." The judge refused the offer, stating: " I'm not going to do the verdict forms and things. They don't need to have those -- they will take them with them to the jury room, but they don't need them while I read through them." Thus, it appears that the judge did not compile the verdict forms at the same time as he compiled the jury instructions.

[¶5] After compiling the jury instructions, the judge brought the jurors into the courtroom and instructed them. Initially, prior to closing arguments, the judge read the packet of jury instructions to the jury, which included the elemental instructions for second degree assault and the lesser included offense of obstruction of a peace officer. Then, following closing arguments, the judge read the verdict forms for second degree assault and obstruction of a peace officer to the jury. As to the verdict form for obstruction of a peace officer, the judge read the verdict form verbatim:

Jury Verdict Count 3. Obstruction of a peace officer. Roman Numeral I. We, the jury, find the defendant, Tyler N. LePage, not guilty of Count 3, obstruction of a peace officer. Roman Number [sic] II. We, the jury, find the defendant, Tyler ...

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