People v. Cichuniec.

2026 COA 43. No. 24CA0675. Commencement of Criminal Action—Attorney General’s Powers and Duties—Executive Order Directing Investigation and Prosecution—Special Prosecutor Statute—Special Relationships Statute—Traverse—Jury Instructions—Standard of Care—Criminally Negligent Homicide—Parties to Offenses—Complicity—Liability Based on Behavior of Another.

June 4, 2026

Police officers in Aurora responding to a 911 call encountered McClain walking on the street. They asked McClain to stop, he refused, and a physical struggle ensued. With McClain on the ground, an officer put him in a carotid control hold that cut off blood flow to McClain’s brain and caused him to temporarily lose consciousness. When McClain regained consciousness, he told officers that he couldn’t breathe, and he later vomited. An officer called for paramedics to treat McClain. Cooper, a paramedic, his supervisor, Cichuniec, and two nonmedical fire department personnel arrived, and based on officers’ statements that McClain was “on something” and “acting crazy,” they concluded that McClain showed symptoms of excited delirium. Cooper and Cichuniec agreed that McClain would be injected with ketamine, a general anesthetic. An ambulance with two emergency medical technicians (EMTs) was also on scene, and either Cooper or Cichuniec told an EMT to prepare a ketamine shot, which Cooper injected into McClain. McClain was placed in the ambulance, where he again stopped breathing. EMTs began CPR, and McClain was subsequently admitted to a hospital, where doctors declared him brain dead a few days later. McClain’s cause of death was classified as “undetermined” as to cause and manner. The district attorney for the Seventeenth Judicial District, Young, subsequently declined to prosecute Cooper and Cichuniec or any of the police officers. Young sent a letter to Aurora’s police chief explaining that the coroner’s report and the results of his office’s investigation didn’t support prosecuting anyone in connection with McClain’s death. But citing his authority under CRS § 24-31-101(1)(a), (b), Governor Polis later issued an executive order directing the attorney general to investigate and, if necessary, prosecute on the State’s behalf. A grand jury subsequently indicted Cooper and Cichuniec with various offenses arising out their medical treatment of McClain. The prosecution charged that each could be found guilty of all the charges as either a principal or a complicitor. The prosecution’s theory was that Cooper and Cichuniec had acted contrary to their medical training and proper protocols. Before trial, Cooper’s and Cichuniec’s counsel each moved to dismiss the charges for lack of jurisdiction, arguing that the governor and attorney general had unlawfully circumvented CRS § 16-5-209, Colorado’s special prosecutor statute. The district court concluded that §§ 16-5-209 and 24-31-101(1)(b) provide two ways of handling a situation when the district attorney declines to prosecute and denied the motions. Cooper and Cichuniec were tried together. Cichuniec was found guilty of criminally negligent homicide and one count of second degree assault (unlawful administration of drugs).

On appeal, Cichuniec argued that both convictions must be reversed because the attorney general lacked authority to prosecute him. He asserted that the district attorney’s decision to not prosecute could be overridden only under Colorado’s special prosecutor statute. The court of appeals concluded that §§ 24-31-101(1)(b) and 16-5-209 provide alternative means of prosecuting a criminal case independent of the district attorney’s authority under § 20-1-102, the first subject to the governor’s discretion and the second subject to the court’s discretion (upon affidavit by an aggrieved party). Accordingly, the district court didn’t err by denying the motion to dismiss the indictment.

Cichuniec also contended that the district court erred by refusing to consider a juror’s post-trial affidavit concerning jury exposure to extraneous prejudicial information. He maintained that a calendar on the courtroom wall with blank “Post-it” notes in the blocks of the calendar grid for Monday, December 25, 2023, through Friday, December 29, would have made jurors feel pressured to finish their deliberations by December 22, the day they returned their verdicts. Cichuniec’s counsel filed a motion for a new trial following the verdicts based, in part, on a juror’s affidavit concerning the calendar. The court relied on CRE 606(b) to deny the motion, ruling that the juror’s affidavit could not be considered because it didn’t disclose extraneous prejudicial information. Here, the calendar was extraneous information because it was posted inside the courtroom but wasn’t received into evidence or included in the court’s instructions. But it was not prejudicial because the record shows that the Post-it notes were blank and did not suggest that the court would be on vacation or indicate that the court would not be available for extended deliberations, and Cichuniec didn’t allege otherwise. Further, the court didn’t promise that the case would be over before Christmas or tell the jurors that it had to be over by that date. Accordingly, the district court didn’t err by refusing to consider the juror’s affidavit.

Cichuniec further asserted that there was insufficient evidence to support the criminally negligent homicide conviction because (1) the evidence did not support a verdict finding him guilty as a principal because Cooper requested and administered the ketamine, so Cichuniec couldn’t have “caused” McClain’s death; and (2) the evidence did not support a verdict finding him guilty as a complicitor because there was no evidence that he knew Cooper was engaging in criminally negligent conduct. The court of appeals held that, to convict a person of an offense as a complicitor, the prosecution must prove that another person committed the statutory elements of the offense but does not have to disprove any affirmative defense that the principal would be entitled to raise. The court also held that, under § 18-1-605, acquittal of the principal on a charge does not require acquittal of a complicitor as to that same charge. Here, there is sufficient evidence from which the jury could reasonably have found that Cichuniec caused McClain’s death, including that he was the highest ranking fire department responder on the scene; he admitted at trial that the dosage given to McClain was much higher than what McClain should have been given; and expert witnesses testified that the ketamine was a substantial contributing factor in McClain’s death. And, because the jury could reasonably have concluded from this evidence that Cichuniec grossly deviated from the standard of care, it could reasonably have concluded that he knew Cooper was doing so as well. Accordingly, the evidence was sufficient to also establish his guilt as a complicitor.

Cichuniec also asserted that the district court erred by (1) rejecting his counsel’s tendered instruction on the standard of care and (2) not adequately and accurately defining the standard of care after the deliberating jurors affirmatively indicated that they didn’t understand what standard to apply. Here, the court rejected defense counsel’s instruction, which was based on the standard of care that a reasonable paramedic in Aurora, Colorado, would exercise in the same circumstances. Instead, the court instructed the jury on the definition of criminal negligence using Colorado’s pattern instruction, which is based on the standard of care that a reasonable person would exercise. After the jurors began deliberating, they sent the court the following question: “May we have a definition of the standard of care? Or a description of it?” The court refused to further define the terms, telling the jurors to apply the “common and ordinary meanings” of the words in the instruction. But the prosecution’s case was premised on what a person with Cichuniec’s training and experience as a paramedic should or should not have done, not on what an ordinary person off the street should or should not have done. The court of appeals concluded that a reasonable person in the context here is “a reasonable person in the actor’s situation and under all the circumstances known to him, and that the actor’s failure to perceive the risk must account for the nature and purpose of the actor’s conduct.” The standard of care was thus one applicable to a reasonable paramedic in Aurora, Colorado, in 2019 treating a person in McClain’s condition. The district court thus erred by refusing defense counsel’s tendered instruction and by refusing to clarify the standard of care in response to the jurors’ question. Further, these errors weren’t harmless beyond a reasonable doubt because the case was hotly contested and the evidence of guilt was not overwhelming.

Cichuniec additionally contended that the district court erred by not instructing the jury that, as to criminally negligent homicide, § 18-1-703(1)(e)(II) of Colorado’s “special relationships” statute creates an affirmative defense that the prosecution must disprove beyond a reasonable doubt. The court held that this provision creates a traverse to the charge of criminally negligent homicide, not an affirmative defense. The district court therefore was not required to instruct the jury that the prosecution had the additional burden of disproving the defense beyond a reasonable doubt.

Cichuniec further argued that there was insufficient evidence of his guilt for second degree assault (unlawful administration of drugs). He maintained that the jury’s acquittal of Cooper as the principal on this charge is legally inconsistent with its verdict finding him guilty of the charge, so the verdict against him cannot stand. However, inconsistencies between guilty and not guilty verdicts are generally permissible. Here, the verdicts aren’t legally inconsistent, and § 18-1-605 does not allow a complicitor to avoid conviction based on the principal’s acquittal. Further, there was sufficient evidence to prove beyond a reasonable doubt that Cichuniec knew Cooper was acting for a purpose other than lawful medical or therapeutic treatment.

Cichuniec also contended that the court erred in instructing the jury because it should have instructed the jury in connection with the complicity instruction that, for it to find that the principal committed the crime of assault, it also had to find that the principal’s conduct wasn’t authorized by the “special relationship” affirmative defense. The court concluded that, in the context of complicitor culpability, the prosecution’s burden of proving that another person committed the offense requires only proof that the principal committed the statutory elements of the offense. Accordingly, the district court wasn’t required to instruct the jury that, in addition to proving Cooper’s (the principal’s) commission of the elements of second degree assault (unlawful administration of drugs), the prosecution was also required to prove that the special relationship affirmative defense wasn’t applicable to Cooper’s (the principal’s) conduct.

Cichuniec further argued that the court erroneously admitted certain medical expert testimony. However, each expert opined on the medical propriety of a particular form of medical treatment. None of the expert testimony Cichuniec challenged was inadmissible.

Lastly, Cichuniec argued for reversal based on cumulative error. Having found only one error, the court determined that the cumulative error doctrine doesn’t apply.

The judgment of conviction on the criminally negligent homicide charge was reversed and the case was remanded for a new trial on that charge. The judgment of conviction on the charge of second degree assault was affirmed.