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People v. Irving

Court of Appeals of Colorado, Third Division

January 10, 2019

The People of the State of Colorado, Plaintiff-Appellee,
v.
De'Twan Clayton Irving, Defendant-Appellant.

          Arapahoe County District Court No. 11CR1958 Honorable Elizabeth Beebe Volz, Judge

          Philip J. Weiser, Attorney General, Rebecca A. Adams, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

          Megan A. Ring, Colorado State Public Defender, Lynn Noesner, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

          OPINION

          HARRIS, JUDGE

         ¶ 1 Defendant, De'Twan Clayton Irving, a member of the Rollin 60s branch of the Crips gang, was convicted of second degree murder and conspiracy to commit murder after he killed the victim during a gang-related dispute.

         ¶ 2 Based on the prosecutor's allegations of witness intimidation, the trial court partially closed the courtroom during the testimony of two witnesses, one of whom was Irving's former girlfriend, and closed it entirely during the testimony of a third witness. Irving contends that the closures violated his constitutional right to a public trial.

         ¶ 3 Because we agree that the court erred in excluding Irving's mother from the courtroom during the testimony of Irving's girlfriend, we need not consider the propriety of the other closures. And because the error is structural, we must reverse Irving's convictions and remand for a new trial.

         I. Right to a Public Trial

         A. Background Facts

         ¶ 4 According to the prosecution's evidence, in September 2010, Irving's then girlfriend drove him and a few of his fellow gang members to an apartment complex where Irving shot the victim in retaliation for the victim's earlier altercation with one of the gang members.

         ¶ 5 Irving was charged with first degree murder and conspiracy to commit murder. The case proceeded to trial in April 2014. On the third day of trial, the prosecutor requested that the court partially close the courtroom during the testimony of three witnesses: Irving's former girlfriend, a jailhouse informant to whom Irving had made inculpatory statements, and Irving's codefendant who had agreed to testify against Irving pursuant to a plea agreement.

         ¶ 6 According to the prosecutor, he had received information the day before directly from the informant and the codefendant. The informant told the prosecutor that Irving had made a throat-slashing gesture when the two had crossed paths in the courthouse the prior morning and, later that day, another inmate had told the informant that if he testified against Irving, a "hit" would be put out on him and his family. As for the codefendant, he reported to the prosecutor that gang members had threatened him and his mother and sister.

         ¶ 7 But the alleged threats against Irving's former girlfriend had occurred years earlier. The prosecutor told the court that in January 2012, a gang member "directly threatened" the girlfriend at a gas station, "telling her that were she to testify," her "life would be in danger."[1] The prosecutor also told the court that "Mr. Irving's mother has made a documented statement to [the girlfriend] that [she] should not testify."

         ¶ 8 Defense counsel disputed that Irving's mother had ever threatened or intimidated the girlfriend. He explained that just after the crime, Irving's mother had advised the girlfriend not to speak to police because "nothing good" would come of it and, in fact, after ...


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