City and County of Denver District Court No. 12CR3957 Honorable Elizabeth A. Starrs, Judge
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
Terry and Freyre, JJ., concur
¶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.
¶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.
¶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 ...