The Colorado Supreme Court announced on Tuesday that it will review a criminal case out of Weld County in which the jury instructions used to convict a man differed from the offense prosecutors charged him with.

At least three of the court’s seven members must consent to take up an appeal.

The justices also signaled they may intervene in an ongoing criminal prosecution in El Paso County, where the defendant alleges the district attorney’s office delayed her case with a meritless appeal and, in doing so, violated her right to a speedy trial.

The switch-up

Jamie Edward Bock is serving 20 years in prison after a Weld County jury convicted the contractor in 2019 of taking money from clients without performing work.

Prosecutors charged Bock under the portion of Colorado law that criminalizes intentionally obtaining something of value from another person through deception. But at trial, the prosecution offered jury instructions cobbled together from a different part of the law that permits “aggregation” of theft offenses into a single charge with a more serious penalty.

Then-District Court Judge Thomas J. Quammen gave the instruction and the defense did not object.

After Bock’s conviction, a three-judge panel of the Court of Appeals considered whether the change in instructions, known as a “constructive amendment,” compromised the fundamental fairness of his trial. By 2-1, the panel said it did not.

“It’s obvious that a constructive amendment occurred,” wrote Judge Craig R. Welling for the majority, but prosecutors provided Bock notice two months before trial that it was aggregating the theft charges. The jury instructions aligned with that plan.

Judge Timothy J. Schutz, however, was unconvinced. Specifically, he observed the jury instructions contradicted themselves – referencing a six month window for the thefts, but also inviting jurors to consider Bock’s actions in a much wider timeframe. More broadly, aggregating the charged offenses would have affected Bock’s defense strategy in ways the appellate court could not predict.

Bock appealed to the Supreme Court to review the appellate panel’s conclusions.

“Constructive amendments always result in fundamental unfairness because they always deprive the defendant of the fundamental constitutional right to notice of the charges,” wrote public defender Chelsea E. Mowrer. “Additionally, constructive amendments result in the jury convicting a defendant of an uncharged offense.”

The Supreme Court will consider whether the error requires reversal of Bock’s convictions.

The case is Bock v. People.

The mid-trial delay

Khristina Phillips stands accused of a misdemeanor child abuse offense in El Paso County. Originally, the trial judge agreed law enforcement interrogated Phillips in custody without providing a Miranda warning and ordered her statements excluded from trial. The prosecution filed an interlocutory, or mid-case, appeal and won reversal of the ruling.

In Colorado, the government generally must bring criminal defendants to trial within six months of a not guilty plea as part of the constitutional right to a speedy trial. In Phillips’ case, the court excluded 161 days from her speedy trial deadline on account of the appeal, with no objection from the defense.

On the morning of trial earlier this year, the prosecution reportedly said it would play Phillips’ entire interrogation video. County Court Judge Steven Katzman balked, ordering that only certain relevant clips be played, with Phillips’ remaining statements coming in through other witnesses. In the middle of jury selection, the prosecution filed another interlocutory appeal, forcing Katzman to declare a mistrial.

A district court judge, hearing the appeal, ultimately dismissed it. By that time, the speedy trial deadline had passed.

The legislature has imposed one consequence for speedy trial violations: dismissal of the charges and a prohibition on further prosecution.

Katzman, however, found the time consumed by the prosecution’s second interlocutory appeal did not count toward the deadline. Phillips then appealed directly to the Supreme Court, arguing prosecutors should pay the price for meritless appeals.

“Otherwise, the prosecution can file a baseless appeal without consequence,” wrote attorney Erin Wigglesworth, “resulting in a defendant bearing the negative consequence of an extension of the speedy trial deadline and a violation of the defendant’s speedy trial and due process rights.”

The Supreme Court ordered the government to respond to Phillips’ allegations.

The case is People v. Phillips.