Colorado’s second-highest court on Thursday concluded an attorney did not violate his client’s constitutional right to make key decisions about his defense when the lawyer unilaterally told the jury his client committed some of the charged crimes.

The U.S. Supreme Court has provided guidance in recent years about when criminal defense attorneys may concede their client’s guilt. In 2004, the court determined in Florida v. Nixon that an attorney was not barred from admitting his client committed murder in hopes of avoiding the death penalty, as the defendant was aware of that strategy and neither objected nor consented.

However, in the 2018 case of McCoy v. Louisiana, the Supreme Court agreed a defense attorney in a similar death penalty case was wrong to tell jurors his client committed murder when the defendant “vociferously” protested he was innocent.

A three-judge panel for the Court of Appeals concluded the circumstances of Anthony Christopher Cuevas’ murder conviction in Pueblo County fell “somewhere between” those two guideposts.

“Whereas the defendant in Nixon remained silent when defense counsel consulted with him regarding a guilt concession strategy, Cuevas points out that ‘there is nothing in the record to indicate that Cuevas’ counsel consulted with (him),'” wrote Judge Daniel M. Taubman in the Aug. 8 opinion.

“On the other hand, whereas the defendant in McCoy disputed any involvement in the charged criminal acts, told defense counsel before trial not to concede guilt, and protested counsel’s opening statement,” Taubman continued, “Cuevas did not.”

Ultimately, the panel was persuaded by Cuevas’ lack of protest after his lawyer conceded to the jury that his client committed the lesser offenses he was charged with. Consequently, the Court of Appeals upheld his convictions.

Prosecutors charged Cuevas with murdering his mother, Maria Cuevas-Garcia, and disposing of her partially dismembered body in a suitcase he placed in a dumpster. He also eluded police during a high-speed chase and stole a checkbook and duffel bag from a truck.

Cuevas pleaded not guilty and jurors convicted him of murder, vehicular eluding and identity theft. They could not reach consensus on a criminal trespass charge. Cuevas’ wife, Melanie Cuevas, later pleaded guilty to her role in Cuevas-Garcia’s killing.

During opening statements, Cuevas’ attorney told jurors they “don’t need to spend a lot of mental energy focusing on whether Anthony put the suitcase in the dumpster. He did.”

The lawyer went on to say Cuevas also broke into the truck and eluded police. In response, the prosecutor told the jury during closing arguments that the defense “conceded the other three charges” besides murder. The defense lawyer in closing confirmed Cuevas “admits those things,” but did not admit to murder.

There was no indication the lawyer talked with his client beforehand about that strategy.

“Cuevas plead(ed) not guilty, went to trial, and insisted upon his innocence,” wrote Lauretta A. Martin Neff, who represented Cuevas on appeal. “And yet, his attorney admitted Cuevas’ guilt to the three lesser charged crimes without Cuevas’ agreement.”

She elaborated that the actions of Cuevas’ trial attorney absolved the prosecution of proving the less serious offenses beyond a reasonable doubt. Referencing the Supreme Court’s recognition that a defendant who objects to a lawyer’s admission of guilt is in a different position than a defendant who does not object, Martin Neff believed the distinction was unrealistic.

“In fact, it is rare that a client will object on the record, especially during trial when stress levels are high or when a criminal defendant may not fully understand what is happening,” she argued. “When a criminal defendant is represented but attempts to address the trial court directly, courts typically cut the defendant off and refer them to speak with counsel.”

The Court of Appeals panel saw the question in a somewhat different light: Did Cuevas’ plea of not guilty amount to an expression of innocence, like in McCoy, that his lawyer could not override without his consent? Pointing to cases from other states’ appeals courts, the panel decided a defendant who disagrees with his lawyer’s concessions has some obligation to say so.

“To be sure, defense counsel has a duty to consult with the client about trial strategies, including conceding guilt,” wrote Taubman, a retired judge who sat on the panel at the chief justice’s assignment. “By violating that duty, however, defense counsel does not inherently usurp his or her client’s autonomy.”

Taubman added that Cuevas might have a viable claim his lawyer was constitutionally ineffective by failing to consult with him, but Cuevas would need to raise those allegations in a separate proceeding.

Defense attorney Gregory Lansky agreed with Martin Neff that such a rule requires too much from defendants who lack knowledge about their duty to object.

“Counsel’s error caused a violation of the fundamental legal principle that a defendant must be allowed to make his or her own choices about the proper way to protect his or her liberty, the effects of counsel’s error are too hard to measure, and the error signals fundamental unfairness in the defendant’s proceedings,” he said.

The case is People v. Cuevas.