Menu icon Access the Business Officer Magazine menu by clicking or touching here.
Colorado Lawyer Magazine logo, click or touch this logo to return to the homepage Click or touch the Colorado Lawyer Magazine logo to return to the homepage. Search

People v. Martinez.

2024 COA 34. No. 22CA0667. Due Process—Indictment and Information—Constructive Amendment—Jury Interrogatory—Sufficiency of Evidence—Hearsay.

April 11, 2024

Martinez was sitting on a bench in downtown Denver next to 80-year-old Black. Surveillance video showed that Martinez struck Black several times, they became entangled and fell to the ground, and a bystander intervened and chased Martinez away. Black had a heart attack and died less than two hours after the altercation. Martinez was arrested, and while law enforcement officers placed her into a holding cell, she spat in the face of Officer Bridges, who was wearing a mask. Martinez was charged with two counts of first-degree murder of Black and second-degree assault of Officer Bridges. The information did not allege that Black was an at-risk person, refer to Black’s age, or allege a separate count for a crime of violence. The prosecutor asked the court to provide the jury with an at-risk-person interrogatory, which the court allowed over defense counsel’s objection. In addition to instructions for first-degree murder (both after deliberation and extreme indifference), the court gave the jury instructions and verdict questions for the lesser included offenses of second-degree murder, reckless manslaughter, and criminally negligent homicide. The jury acquitted Martinez of first-degree murder but found her guilty of the lesser included offense of criminally negligent homicide as well as second-degree assault. It also found that Black was an at-risk person. The court entered judgments of conviction for criminal negligence resulting in the death of an at-risk person and second-degree assault. The court applied the crime of violence sentencing framework and sentenced Martinez to 14 years in the custody of the Department of Corrections.

On appeal, Martinez contended that the court violated her constitutional right to due process by entering a conviction and sentencing her on the uncharged, lesser nonincluded offense of criminal negligence resulting in the death of an at-risk person because this amounted to a constructive amendment of the information. A constructive amendment occurs when a court changes an essential element of the charged offense, thus altering the substance of the charging instrument and subjecting a defendant to the risk of conviction for an offense that was not originally charged. Here, the information charged Martinez with the first-degree murder of Black, a crime for which Black’s characteristics were not an essential element, but the court entered a conviction under the crimes against at-risk persons statute, which renders the victim’s characteristics an essential element of the offense. Accordingly, the trial court deviated from the information by relying on the jury’s answer to an at-risk-person verdict question to enter a judgment of conviction for the uncharged lesser nonincluded offense. This amounted to a constructive amendment and resulted in a violation of Martinez’s due process rights. Further, even if the error was not structural, it implicated constitutional rights and was preserved by objection, and the People failed to meet their burden under the constitutional harmless error standard to show the error was harmless beyond a reasonable doubt.

Martinez also argued that there was insufficient evidence to support her second-degree assault conviction because the prosecution failed to show that she acted with the requisite intent. However, the prosecution established that Martinez spat on Officer Bridges’s face and mask only two months after the COVID-19 pandemic started, and this circumstantial evidence supports a reasonable inference that Martinez intended to cause Officer Bridges fear of disease.

Lastly, Martinez argued that the court improperly excluded as hearsay two pieces of evidence of Martinez’s self-induced intoxication that were relevant to the specific intent element for the assault charge. Here, the jury heard evidence of Martinez’s intoxication that it found insufficient to negate Martinez’s intent. Thus, even assuming, without deciding, that the court misapplied the hearsay law as alleged, the errors do not warrant reversal because they did not substantially influence the verdict or affect the fairness of the trial proceedings.

The judgment of conviction for criminal negligence resulting in the death of an at-risk person was reversed and the case was remanded with instructions for the court to enter a judgment of conviction for criminally negligent homicide and to resentence Martinez accordingly. The judgment of conviction for second-degree assault was affirmed.

Official Colorado Court of Appeals proceedings can be found at the Colorado Court of Appeals website.

Back to the From the Courts Page