People v. Oliver.
2020 COA 97. No. 18CA0085. Criminal Law—First Degree Introduction of Contraband—First Degree Possession of Contraband—Second Degree Possession of Contraband—Challenges for Cause—Expert Testimony—Lay Opinion Testimony—Lesser Included Offense.
June 18, 2020
A corrections officer conducted a search of defendant’s prison cell and discovered a razor blade affixed to a toothbrush handle (the contraband). Defendant admitted he had made the item but alleged he had only done so to cut holes in his prison uniform to use as pockets. A jury convicted defendant of first degree introduction of contraband, first degree possession of contraband, and second degree possession of contraband.
On appeal, defendant argued that the court erred in denying his challenges for cause for four prospective jurors. Three of these jurors expressed concern about defendant’s incarceration and his right not to testify, and they indicated that they could follow the court’s instructions. Therefore, the court did not err in denying defendant’s challenges for cause as to these three. However, the fourth juror expressed concern about defendant’s status as an inmate and indicated that she would be unable to follow the court’s instructions. Therefore, this juror evinced bias sufficient to sustain a challenge for cause, and the trial court erred by failing to do so. But because defendant used a peremptory challenge to remove this juror from the jury and the record does not reflect that a biased or incompetent juror served on the jury, the error was harmless.
Defendant further argued that the prosecution’s witnesses improperly gave expert testimony in the guise of lay witness opinion about the contraband and its use. One witness was the correctional officer who found the contraband, and the second was a Department of Corrections employee who investigated the incident. An ordinary citizen can be expected to know that a razor blade could cause bodily injury, death, or the fear of either. Further, an ordinary citizen could deduce, without the need for specialized knowledge or training, that the purpose of the rag wrapped around the toothbrush was to provide a proper handle. Thus, the witnesses’ testimony was not outside the scope of CRE 701 and was proper.
Defendant also requested that his conviction for first degree possession of contraband be vacated, and the People conceded this argument. First degree possession of contraband is a lesser included offense of first degree introduction of contraband.
Defendant also contended that the trial court plainly erred by failing to instruct the jury that second degree possession of contraband is a lesser included offense of first degree possession of contraband. The statutory scheme suggests that the second degree statute does not proscribe a different type of harm than the first degree statute; the two offenses differ only as to the severity or risk of injury posed by the type of contraband each proscribes. Therefore, second degree possession of contraband is a lesser included offense of first degree possession of contraband under CRS § 18-1-408(5)(c). However, the trial court did not plainly err by not instructing the jury accordingly.
The judgment of conviction for first degree introduction of contraband and second degree possession of contraband was affirmed. The conviction for first degree possession of contraband was vacated and the case was remanded for the trial court to correct the mittimus.