BY JOHN R. WEBB AND ALEX GANO
This article examines Colorado Supreme Court and Court of Appeals opinions on the relationship between waiver and plain error review in criminal cases. It also considers questions left unanswered by this case law.
In 2018 and 2019, the Colorado Supreme Court decided four criminal cases that clarified the relationship between waiver and plain error review by emphasizing that waiver requires the intentional relinquishment of a known right: People v. Rediger, the companion case People v. Smith,2 Phillips v. People,' and its companion case Cardman v. People.4 This article examines these and other relevant cases and looks at Court of Appeals opinions that have applied Rediger and Smith. It concludes by considering unresolved issues concerning waiver in criminal cases.
Unpreserved Error in Criminal Cases
Colorado Rule of Criminal Procedure 52(b) provides for plain error review of unpreserved errors,5 which are often described as "forfeited."6 Because plain error review is not a constitutional right, states may strike the balance between plain error and waiver differently.
In Colorado, to warrant reversal the unpreserved error must be obvious and "so undermine  the fundamental fairness of the trial itself as to cast serious doubt on the reliability of the judgment of conviction."8 The Colorado Supreme Court has not embraced the narrower federal formulation under the similar federal rule.9
But not all unpreserved errors merit plain error review. An error that defense counsel invited10 or that the defendant or counsel waived does not. Either situation ends review on direct appeal, leaving the defendant to seek relief for ineffective assistance of counsel under Crim. P. 35(c), unless the defendant personally waived that right.12
Waiver and Jury Instructions
Jury instructions provided the context for the 2018 Supreme Court opinions that considered whether alleged but unpreserved errors had been waived.
Rediger involved a jury instruction that erroneously addressed a different statutory subsection than the indictment described. A division of the Court of Appeals concluded that the error had been waived based on defense counsel's response to the trial court's questions about the prosecutor's proposed instructions, "Yes. Defense is satisfied."13 A unanimous Supreme Court disagreed.
The Supreme Court set the tone by noting that "mere acquiescence to a jury instruction does not constitute a waiver without some record evidence that the defendant intentionally relinquished a known right." The Court identified two considerations: "Waiver, in contrast to invited error, is the intentional relinquishment of a known right or privilege. We do not presume acquiescence in the loss of fundamental constitutional rights, and therefore indulge every reasonable presumption against waiver."15
Turning to the record, the Court discerned "no evidence that Rediger ['s counsel] considered objecting to the erroneous instruction but then, for some tactical or other reason, rejected the idea."16 Nor did the record contain "any evidence that Rediger['s counsel] knew of the discrepancy between the People's tendered jury instructions and the charging document." The attorney general's assertion that Rediger's counsel confirmed he had reviewed the proposed instructions before trial missed the mark. While "these facts confirm that Rediger's counsel read the proposed instructions, they do not show Rediger's or counsel's knowledge of the discrepancy between the jury instructions and charging document... "18
Smith, a unanimous decision announced the same day, likewise dealt with instructional error. The trial court had modified an instruction at the request of Smith's counsel.19 Otherwise, when asked whether the court's instructions were acceptable, defense counsel stated, '"They are acceptable, Judge."'20 In an unpublished opinion, a division of the Court of Appeals rejected the attorney general's argument that defense counsel had waived other instructional errors. It reviewed for plain error, found a simple variance that prejudiced the defendant, and reversed.21 The Supreme Court agreed. Tracking Rediger, the Court explained:
Likewise, in this case, a search of the record before us reveals no evidence that Smith, by stating that the instructions generally were "acceptable" to him, intended to relinquish a known variance claim. As in Rediger, no evidence suggests that Smith considered objecting to the alleged variance but then for some reason, tactical or otherwise, decided against it. Indeed, the parties and the trial court appear never to have discussed or acknowledged the pertinent differences between Smith's charging document and the proposed jury instructions or the implications of those differences.22
Simply put, Rediger and Smith construed waiver narrowly.
Hinojos-Mendoza and Stackhouse
Two earlier Colorado Supreme Court opinions, Hinojos-Mendoza v. Peopleand Stackhouse v. People,24 not cited in either Rediger or Smith, could be read as suggesting a broader approach to waiver of errors that did not involve jury instructions.
Hinojos-Mendoza involved the admission of a laboratory report without the testimony of the technician who had prepared it, as allowed by CRS § 16-3-309(5).25 The Court treated defense counsel's failure to request that the technician testify in person as a waiver of the confrontation issue raised on appeal.26 The court explained: "[W] e presume that attorneys know the applicable rules of procedure. Given this knowledge, we can infer from the failure to comply with the procedural requirements that the attorney made a decision not to exercise the right at issue."
Stackhouse dealt with an appellate challenge to a complete courtroom closure during voir dire to which defense counsel had not objected during trial. The Court held that the issue had been waived.28 Citing the presumed knowledge language, the Court explained that "defense counsel must object to a known closure to preserve appellate review on public trial grounds."29 And it warned that" [a]llowing a defense attorney who stands silent during a known closure to then seek invalidation of an adverse verdict on that basis would encourage gamesmanship ... "30
But as discussed below, in light of Phillips, the continued viability of these cases—at least for purposes of finding waiver—has been clouded.
The Court of Appeals Interprets Rediger
Several divisions of the Court of Appeals have addressed waiver post-Rediger. The following four cases are illustrative.
In People v. Tee, the defendant contended that a mid trial discussion between two jurors— overheard by a court employee—suggested predeliberation warranting a mistrial.31 The division concluded that defense counsel had waived a mistrial based on these discussions because
■ from the time the issue arose, "the trial court and defense counsel were involved in an ongoing, interactive exchange";32
■ counsel's questioning of the court employee showed that "counsel recognized the predeliberation concern";33 and
■ after the court had questioned the first juror, counsel said, "I didn't hear anything at this point that would make me want to move for a mistrial based on the fact that the jurors looked engaged in a deliberate guilt or not guilt process to me."34 Then, following questioning of the second juror, counsel asked only that the court read the jury instruction on burden of proof. After the court had done so, counsel sought no further relief.35
In People v. Allgier, the division addressed an issue left unresolved in Rediger—"exactly what 'known' means in evaluating whether defense counsel intentionally relinquished a known right." Defense counsel had repeatedly said "no objection" when, while cross-examining the defendant, the prosecutor offered several firearms into evidence, one by one. But on appeal the defendant contended that the prejudicial effect of admitting this arsenal constituted plain error under CRE 403.38 A split division rejected the attorney general's waiver argument Noting the absence in the trial court of any reference to Rule 403, the majority observed, " [a]ctual recognition seems to be what Rediger  requires to find a waiver."39
More recently, two 2019 cases rejected waiver arguments under Rediger. Faced with a similarly unpreserved instructional error plus an indication that defense counsel had acquiesced in the instructions, the majority in People v. Ramirez discerned no waiver.
We see no indication in...