On Point: 5. Impeachment of

State v. Kieuta Z, Perry, 2019AP270-CR, 5/12/20, District 1, (not recommended for publication); case activity (including briefs)

The State charged Perry with armed robbery and 1st degree recklessly endangering safety with use of a dangerous weapon both as a party to a crime, along with possession of a firearm by a felon. During cross-exam a witness blurted out “Didn’t [Perry] shoot somebody in the head before he shot me? That’s what I heard.” Defense counsel moved to strike and then later for a mistrial.

State v. Marwan Mahajni, 2017AP1184-CR, 6/27/19, District 1 (not recommended for publication); case activity (including briefs)

Mahajni moved for a new trial because, during deliberations in his case, the bailiff told the jury that they could not deadlock. They had to reach a unanimous verdict of guilty or not guilty. The circuit court denied Mahajni’s motion, so he moved for reconsideration and this time submitted 2 juror affidavits supporting his motion. He lost again. The court appeals here reverses and remands the case for an evidentiary hearing.

Miguel Angel Peña-Rodriguez v. Colorado, USSC No. 15-606, 2017 WL 855760 (March 6, 2017), reversing Peña-Rodriguez v. People, 350 P.3d 287 (Colo. 2015); Scotusblog page

Every state and federal jurisdiction has some version of the “no-impeachment rule,” which, after a verdict is received, bars an aggrieved party from presenting testimony by jurors regarding the jury’s deliberations. SCOTUS has twice upheld such rules against constitutional challenge, while allowing that there could be certain cases in which refusing to permit such testimony would be too harmful to justice. The court now decides that the no-impeachment rule must give way to the Sixth Amendment right to an impartial jury where “a juror makes a clear statement that indicates he or she relied on racial stereotypes or animus to convict a criminal defendant.”

Question Presented:

Most states and the federal government have a rule of evidence generally prohibiting the introduction of juror testimony regarding statements made during deliberations when offered to challenge the jury’s verdict. Known colloquially as “no impeachment” rules, they are typically codified as Rule 606(b); in some states, they are a matter of common law.

The question presented is whether a “no impeachment” rule constitutionally may bar evidence of racial bias offered to prove a violation of the Sixth Amendment right to an impartial jury?

State v. Wade M. Richey, 2014AP1758-CR, District 3, 3/17/15 (not recommended for publication); case activity (including briefs)

In this prosecution for reckless driving causing great bodily harm and homicide by operating with a detectable amount of a controlled substance, the circuit court erroneously excluded Richey’s medical records from evidence at trial, though the error was harmless. More interesting, perhaps, is the issue arising out of the trial court’s post-verdict meeting with the jury. While it wasn’t plain error for the trial judge to meet with the jury after receiving its verdict, what happened in this case causes the court of appeals to suggest trial judges tread carefully when doing so.

Warger v. Shauers, USSC No. 13-517, 2014 WL 6885952 (December 9, 2014), affirming Warger v. Shauers, 721 F.3d 606 (8th Cir. 2013); Scotusblog page (includes links to briefs and commentary)

Resolving an issue that had split some federal circuit courts, the Supreme Court unanimously holds that Federal Rule of Evidence 606(b) precludes a party seeking a new trial from using one juror’s affidavit or testimony about what another juror said in deliberations to demonstrate the other juror was dishonest during voir dire.

Waiver of Escalona argument; claim of self-defense where crime includes “utter disregard of life” element

Click here for court of appeals decision, PFR filed 8/3/09

(opinion originally issued 4/23, withdrawn 5/12, reissued 5/21, withdrawn 6/12, reissued 7/2. Groundhog Day? Not quite: the withdrawn opinions found that trial counsel was ineffective for not seeking a lesser included instruction to reckless injury, but the new opinion rejects that conclusion)

Pro se

Issue/Holding: State failure to argue,