Misconduct from Arapahoe County prosecutors and a trial judge’s refusal to provide a key jury instruction prompted Colorado’s second-highest court on Thursday to overturn a man’s bank robbery convictions.

In 2019, jurors convicted Steven Dudley Smith of robbery, menacing and kidnapping charges related to four bank robberies. Although police caught Smith at the scene of the final robbery, there was only circumstantial evidence linking him to the three others. Moreover, Smith’s defense at trial was that a “mobster”-like person coerced him into committing the fourth.

A three-judge panel for the Court of Appeals determined prosecutors improperly suggested to the jury that Smith was guilty because he exercised his constitutional right to silence, and the commentary was severe enough to warrant a new trial.

Further, then-District Court Judge Michael Spear wrongly decided Smith’s jury did not need to analyze whether he actually committed the final robbery under the mobster’s duress. Spear believed the evidence did not show Smith was under duress because Smith reportedly had two minutes to seek help and avoid robbing the bank.

“Maybe two minutes is enough time for action movie heroes to find ways to get themselves out of an emergency,” countered Judge John Daniel Dailey for the appellate panel, “but it may not be enough for an Ordinary Joe who is unused to being put in tense, precarious, and potentially life-threatening situations.”

Case: People v. Smith

Decided: August 24, 2023

Jurisdiction: Arapahoe County

Ruling: 3-0

Judges: John Daniel Dailey (author)

Christina F. Gomez

JoAnn L. Vogt

Background: Colorado appeals court reverses assault conviction due to Denver prosecutor’s misconduct

In late 2017 and early 2018, there was a series of bank robberies in the Denver metro area. The first three all featured a White male suspect, but the details of each robbery and the description of the suspect – someone in his 20s or 40s – varied.

Smith, 64 at the time, was caught attempting to rob a fourth bank in April 2018. In his telling at trial, Smith’s construction company owed $100,000 to Genesis Capital Ventures, a lending and debt collection business. The day of the robbery, Smith met with “Vincent,” who was allegedly linked to Genesis Capital. Vincent brandished a gun, flashed a picture of Smith’s fiancée and daughters, and told Smith if he did not rob a nearby bank in two minutes, there was “going to be a lot of blood.”

Smith requested that his jury be allowed to evaluate duress as an affirmative defense – meaning the prosecution, in addition to proving the crimes, would also have to prove Smith did not face an immediate threat or he had a reasonable alternative to robbing the bank.

Spear denied the defense’s request, finding that even if Smith was truly acting on Vincent’s orders, “there is an opportunity, as existed in this particular case, to notify others, to perhaps use a phone to in some way contact law enforcement.”

During trial, the prosecutors allegedly committed misconduct at various points. The 18th Judicial District Attorney’s Office indicated the prosecutors were W. Casey Brown and Jonathan Blasewitz, but the appeal was unclear about the role each man had. Both have since left the office and neither immediately responded to an email seeking clarification.

On cross-examination, one of the prosecutors addressed Smith’s statements upon his arrest, when he told a federal agent he “had to” rob the bank. After receiving his Miranda warning, Smith chose to exercise his rights to silence and to an attorney, and did not speak further.

The prosecutor repeatedly asked Smith to confirm that the trial was the “very first time anyone is hearing about this story” involving Vincent. The prosecutor asked several additional questions about why he did not “attempt to reach out with this story” to police. The defense objected, but Spear allowed the questions.

On appeal, Smith challenged multiple aspects of his case, but the appellate panel agreed two issues were decisive: the duress defense and the prosecution’s suggestion that Smith’s post-arrest silence meant he was making Vincent up.

The panel found Spear was mistaken when he declined to instruct the jury to evaluate whether Smith acted under duress. Although they could disbelieve Smith’s version of events, it was possible for jurors to conclude Smith had no immediate alternative to avoid harm to himself or his family but to rob the bank, Dailey wrote.

As for the prosecutor’s questioning, the Colorado Attorney General’s Office argued to the appellate panel that Smith “opened the door” to questions about the Vincent story by testifying to what he told the federal agent – that he “had to” rob the bank.

But that statement came before his Miranda warning, explained Dailey in the Aug. 24 opinion. The prosecutor’s questioning implied that if the Vincent story were genuine, Smith would have volunteered it to police. Therefore, jurors should be suspicious of Smith’s decision to invoke his constitutional protections.

“The questioning was, then, used as a means of creating an inference of Smith’s guilt. And because the questioning was quite extensive, we cannot say that the error in permitting it was harmless,” wrote Dailey.

The panel ordered a new trial. Although they did not decide any of Smith’s other claims on appeal, the appellate judges implied the prosecutors committed further misconduct by asking about Smith’s communications with his attorneys, effectively calling Smith a liar to the jury, and making improper emotional appeals to jurors.

The case is People v. Smith.