Petition for Writ of Certiorari — Nathan D. Knuth, Petitioner v. Colorado

Supreme Court briefJul 18, 2020

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SUPREME COURT OF THE UNITED STATES OF AMERICA

1 1st St. NE

Washington, DC 20543

Jefferson County District Court,

Case No. 2014CR572

Colorado Court of Appeals Case No. 2016CA1311

Colorado Supreme Court Case No. 2019SC745

Petitioner:

& U '***■'* * “

FILED

ML 18 m

-SSSffiSHS®

Nathan Daniel Knuth

Respondents:

THE PEOPLE OF THE STATE OF COLORADO.

Nathan Knuth, 125833

PO Box 999

Canon City, CO 81215

PETITION FOR A WRIT OF CERTIORARI

DECEIVED1

JUL 2 8 2820

TABLE OF CONTENTS

Table of Authorities..................

ii,iii,iv

Questions presented for review

List of parties...........................

Basis for Jurisdiction..............

Statement of the case................

Argument for Question I............

Argument for Question II..........

Argument for Question III........

Conclusion.....................................

APPENDIX

page

Mandate.................................................... V..............................................

Denial of Petition for Writ of Certiorari.....................................

Opinion of the Colorado Court of Appeals.......................................

Opening Brief...........................................................................................

Peoples Answer Brief..............................................................................

Reply Brief...............................................................................................

147

Petition for Writ of Certiorari to the Colorado Supreme Court

168

Varius newspaper articles in re delay in examination................

192-195

TABLE OF AUTHORITIES

CONSTITUTIONAL PROVISIONS

page

4, 7, 24

U.S. Const. Amend. V, VI, and XIV

Colorado Revised Statutes

page

16-8-103 (1)16-8-106-

16, 17

16-14-101 - 108

18-1-405

18-l-901(3)(c)

18-3-203(1)(b)

6, 8

18-3-203(1)(g)

18-3-204

18-3-302(1)

COLORADO RULES OF CRIMINAL PROCEDURE

Rule 10

page

-11

CASES

Barker v. Wingo, 407 U.S. 514, 92 S.Ct 2182, 33 L.Ed 2d 101 1972

10, 11, 18, 20

Brimage v. State, 918 S.W. 2d 466, 487 (Tex. Crim. App. 1994)

Center for Legal Advocacy v. Bicha, civil action No. ll-cv-2285-BNB,

United States District Court for the District of Colorado, 2012 U.S.

Dist. LEXIS 49681, April 9, 2012

_____

Dogget v. U.S., 505 U.S. 647, 652 n. 1 112 S.Ct. 2686, 120 Ed. 2d

520 (1992)

10, 11, 20

Gelfand v. People, 586 P.2d 1331, 1332 (1978)

Grass v. People, 471 P.2d 602, 603 (Colo.1970)

Hendershott

v. People, 653 P.2d 385, 390 (Colo. 1982)

Hendricks v. People, 10 P.3d 1231, 1240 (Colo. 2000)

- 21

In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed. 2d

368 (1970)

_________

21, 24

Jackson v. Ray, 390 F.3d 1254. 1261 (10th Cir. 2004)

11, 18

Kogan v. People, 756 P.2d 945, 950 (Colo. 1988)

Me Gautha v. California, 402 U.S. 183, 213 (1971)

Moody v. Corsentino, 843 P.2d 1355, 1363-64 (Colo. 1993)

Nelson v. Hargett, 989 F.2d 847, 853 (5th Cir. 1993)

CASES (Continued)

page

People v. Bell, 809 P.2d 1026, 1033 (Colo. App. 1990)

People v. Bondsteel, ---- P.3d---- (Colo. App. 2015 People v. Boyd, 116 P.2d 193 (1941) -

- 22, 23

People v. Bramlett, 573 P.2d 94, 97 (1977)

People v. Brown, 622 P.2d 573 (1980)

People v. Calvaresi, 188 Colo. 277, 534 P.2d 316 (1975)

People v. Chavez, 779 P.2d 375 (Colo. 1979)

People v. Deason, 670 P.2d 792, 798 (Colo. 1983)

People v. Due Nguyen, 900 P.2d 37, 39 (Colo. 1995)

People v. Fuller, 791 P.2d 702, 706 (Colo. 1990)

- 19

-8

- 22,23

People v. Gardner, 919 P.2d 850, 853 (Colo. App. 1995)

- 4, 5

People v. Glaser, 250 P.3d 632, 635 (Colo. App. 2010)

People v. Gonzales, 666 P.2d 123, 128 (Colo. 1983)

People v. Harlan, 8 P.3d 448, 476-77 (Colo. 2000).

People v. Hayes, 923 P.2d 221, 224-25 (Colo. App. 1995)

People v. Hickman, 988 P.2d 628 (Colo. 1999)

People v. Higinbothom, 712 P.2d 993 (Colo. 1996)

People v. Jefferson, 748 P.2d 1223 (Colo. 1988)

People v. Kanon, 186 Colo. 255, 259 (1974)

People v. Macy, 628 P.2d 69 (Colo. 1981)

21,

- 10, 11

-21

-6

- 5

5, 7

People V. Mckenzie, 169 Colo. 521, 458 P.2d 232 (1969)

5, 7

- 5

People v. Montoya, 196 Colo. Ill, 113 582 P.2d 673, 675 (1978)

- 5

People

v. Oglethorpe, 87 P.3d 129, 135 (Colo. App. 2003)

People v. Onesimo Romero,

746 P.2d 534, 537 (Colo. 1987)

People v. Paiva, 765 P.2d 581 (Colo. 1988)

People v. Reed, 692 P.2d 1150, 1152 (Colo. App. 1994)

People v. Renfrow, 564 P.2d at 413

- 14, 15

_____

People v. Rickman, 155 P.3d 399 (Colo. App. 2006)

People v. Ross, 831 P.2d 1310 (Colo. 1992)

Peop¥le v. Owens, 97 P.3d 227, 235 (Colo. App. 2004)

5, 6

- 21,22,23,24

- 5, 6

People v. Small, 631 P.2d

148, 154 (Colo. 1981)

People v. Suazo, 867 P.2d

161, 164 (Colo. App. 1993)

Simakis v, District Court, 577 P.2d 3 (1978)

People v. Saleh, 45 P.3d 1272 (Colo. 2002)

- 21

Simmons v. United States, 390 U.S. 377^394 (1968)

CASES (Continued)

Sullivan v. La. 508 U.S. 275, 278 (1.993) ----U.S. v. Batie, 433 F.3d 1287, 1290 (10th Cir. 2006) U.S. v. Benally, at 15 (N.M. 12-28-2010)

U.S. v. Dirden, 38 F.3d 1131, 1138 (10th Cir. 1994)

U.S. v. Gould, 672 F.3d 930, 938 (10th Cir. 2012)

U.S. v. Hicks, 779 F.3d 1163, 1168 (10th Cir. 3-6-2015),

U.S. v. Margheim, 770 F.3d 1312, 1329 (10th Cir. 10-29-14)

U.S. v. Marion, 404 U.S. 307, 320 92 S.Ct. 455, 30 L.Ed. 2d 468

(1971)

-----U.S. v. O'Brien, 560 U.S. 218, 224 (2010)

U.S. v. Seltzer, 595 F.3d 1170, 1175 (10th Cir. 2010)

U.S. v. Shell, 974 F.2d 1035, 1036 (9th Cir. 1992)

page

11, 18

- 20

-20

QUESTIONS PRESENTED FOR REVIEW

WHETHER MR. KNUTH"S CONSTITUTIONAL RIGHTS TO EQUAL PROTECTION ARE BEING

VIOLATED , AS THE COLORADO ASSAULT STATUTES ARE UNCONSTITUTIONAL ON THEIR

FACE AND AS APPLIED TO MR KNUTH, AS MR. KNUTH IS BEING PUNISHED MORE

SEVERELY UNDER C.R.S. 18-3-203(b), C.R.S. (2014) THAN THOSE WHO COMMIT

THE SAME OR SIMILAR CRIME; WHO ARE PUNISHED FOR MISDEMEANOR ASSAULT UNDER

18-3-204, C.R.S. (2014), ALSO, MR KNUTH IS BEING PUNISHED MORE SEVERELY

UNDER 18-3-203(1)(b) FOR CAUSING "BODILY INJURY" WITH HIS HANDS THAN

THOSE WHO CAUSE "SERIOUS BODILY INJURY" WITH THEIR HANDS UNDER

18-3-203(1)(g).

II.

WHETHER MR. KNUTH'S CONSTITUTIONAL RIGHTS TO A SPEEDY TRIAL WERE VIOLATED

BY THE STATE TAKING TWENTY FIVE AND A HALF MONTHS TO BRING MR. KNUTH TO

TRIAL, WITH VERY MINIMAL DELAY BEING ATTRIBUTABLE TO MR. KNUTH.

III.

WHETER MR. KNUTH'S CONSTITUTIONAL RIGHTS TO FAIR TRIAL AND DUE PROCESS OF

LAW WERE VIOLATED BY THE TRIAL COURT CONVICTING HIM OF SECOND DEGREE KID

NAPPING WITHOUT THERE BEING SUFFICIENT EVIDENCE IN THE RECORD TO SUPPORT

THE CHARGE.

LIST OF PARTIES

Colorado Attorney General

1300 Broadway, 10th Floor

Denver, CO 80203

BASIS FOR JURISDICTION

Mr. Knuth's pteition for writ of certiorari to the Colorado Supreme

Court was denied on April 27, 2020(App. pg. 1). The Colorado Court of Appeals

entered its opinion on AUgust 22, 2019 (App. pg.3), then issued the mandate

on April 29, 2020 (App. pg. 2).

USCS Supreme Court Rules 10, 11 and 20, confer on this Court jurisdiction

to review the issues at hand.

STATEMENT OF THE CASE

The Respondent, Nathan Knuth, was charged with second degree assault,

menacing with a deadly weapon, second degree kidnapping, false imprisonment,

criminal mischief, and third degree assault. (R.CF pp. 33-43.) These charges

arose from allegations that on March 1, 2014, Mr. Knuth and Andrea Sandoval,

who had been in a domestic relationship for approximately 12 years >and who

have two children together, got into an argument during which Mr. Knuth

allegedly assaulted Ms. Sandoval with his hands. (Id.) The prosecution later

added six counts of habitual criminal, one count of second degree assault

causing serious bodily injury, and seven additional misdemeanor charges.

(Id. at 67-69, 289-290,352-354.) Prior to trial, the district court granted

the prosecution's motion to dismiss count 14 for second degree assault causing

serios bodily injury. (R.CF PP. 1775.)

After a jury trial was conducted on April 18-21, 2016, at which Mr.

Knuth appeared pro^se, the jury found Mr. Knuth guilty of Second degree assault,

menacing with a deadly weapon, second degree kidnapping, false imprisonment,

criminal mischief, driving while ability impaired, third degree assault,

and violation of a protection order. However, the jury found Mr, Knuth not

guilty of the remaining counts. (R.CF pp. 2700-2712).

After a hearing, the district court adjudicated Mr. Knuth as a habitual

criminal based on counts 9,10,11, and 12, but dismissed counts 7 and 8. (R.tr.

6/29/16 pp. 92, 93, 100-101.) The district court subsequently sentenced

Mr. Knuth to 32 years for second degree assault, 12 years for menacing with

a deadly weapon, and 24 years for second degree kidnapping, all to be served

concurrently in the department of corrections. (R.Tr. 6/29/16 pp. 116-117.)

Mr. Knuth then sought direct appeal in the Colorado Court of Appeals

of the above 3 questions presented for review.(App. 37-39, 8.) Then on certiorari

to the Colorado Supreme Court,(App. 170-171.) These three questions were

also properly preserved for appeal in the court of first instance, (R.Tr.

4/20/16 pp. 214-223.),(R.CF pp. 1764, 1739; R.Supp.CF pp. 153, 158.) (R.Tr.

R.CF .573^-574?,5^77,-688,, $19^-1^1(7^-723 , 810-819 , 953-984, 1299-1311, 13821393; R.Tr. 3/17/16 a.m. pp. 28-32; R.Tr. 3/17/16 p.m. pp. 34-35; R.Tr. 4/11/16

pp. 4-10). (R.CF pp. 1382-1393; R.Tr. 3/25/16 pp. 37; R.Tr. 4/11/16 pp. 24.)

ARGUMENT FOR QUESTION I

WHETHER C0KRAD0S SECOND DEGREE ASSAULT STATUTES 18-3-203 (l)(b),18-3-204,and

18-3-203(1)(g) ARE UNCONSTITUTIONAL ON THEIR FACE AND AS APPLIED TO

MR. KNUTH.

As an initial matter, I request this Honorable Court to construe

the following claims liberally, as due to COVID-19 the facility "law Library"

is closed and I have no way to further develop these claims. If this Court

has the ability to provide counsel on this petition, it is hereby requested,

as I believe my constitutional rights of access to the courts is being violated

by this closure of the law library.

Equal protection of the law is guasanteed by the United States Constitution

and by the Due Process Clause of the Colorado Constitution. U.S. Const, amend.

XIV; Colo. Const, art. II,

25. Equal protection assures that those who

are "similarly situated" will be afforded similar treatment. People v. Gardner,

919 P.2d 850, 853 (Colo.App.1995). Criminal defendants are similarly situated

for purposes of equal protection analasys if their conduct was similar.

People v. Oglethorpe, 87 Pi 3d 129, 135 (Colo.App.2003). Equal protection

is implicated where two statutes proscribe the same conduct but impose different

criminal sanctions. People v. Onesimo Romero, 746 P.2d 534, 537 (Colo.1987).

Additionally, statutes which impose different penalties for what ostensibly

may be different conduct, but offer no intelligible standard for distinguishing

between varieties of proscribed conduct, violate guarantees of equal protection

Gardner, 919 P.2d at 853. "In order for an equal protection violation to

exist... it is not necessary that each statute proscribe identicle conduct

in all the possible applications of each statute; it is sufficient that with

respect to the conduct charged, both of the statutes apply and prescribe

disparate penalties." Onesimo Romero, 746 P.2d at 542(Jones, J., dissenting)

(citing People v. Bramlett, 194 Colo. 205, 210; 573 P.2d 94, 97 (1977))

While equal protection of the law requires statutory classifications of

criminal behavior to be based on differences that

real in fact and reasonably

related to the general purposes of criminal legislation, the General Assembly

may

prescribe more severe penalties for conduct it percieves to have

more severe consequences, even if the differences are only a matter of degree.

People v. Jefferson, 748 P.2d 1223 (Colo.1988). However, statutes which impose

different penalties for what ostensibly might be different conduct, but offer

no intelligible standard for distinguishing the proscribed conduct, violate

equal protection. People v. Macy, 628 P.2d 69 (Colo.1981).

People v. Gardner, 919 P.2d 850, 853 (Colo.App.1995), holding modified by

People v. Hickman, 988 P.2d 628 (Colo.1999)

Harsher penalties for crimes committed under different circumstances than

those which accompany the commission of other crimes do not violate equal

protection guarantees if the classification is rationally based upon the

variety of evil proscribed. The classification, however, must reflect substantial

differences having a reasonable relationship to the persons involved and

the public purposes sought to be achieved. People v. Bramlett, supra; People

v. Hulse, Colo • J 557 P.2d 1205 (1976); People v. Calvaresi, 188 Colo. 277,

534 P.2d 316 (1975). Where two statutes provide disparate penalties for similar

criminal conduct, equal protection guarantees are violated. People v. Bramlett:

supra; People v. Mckenzie, 169 Colo. 521, 458 P.2d 232 (1969).

People v. Montoya, 196 Colo. Ill, 113, 582 P.2d 673, 675 (1978)

EQUAL PROTECTION VIOLATION No. I.

Mr. Knuth was charged with second degree assault based on the allegation

that Mr. Knuth's hands were a deadly weapon. Specifically, the charge of

second degree assault alleged that Mr. Knuth's intent was to cause only bodily

injury. (R.CF pp.2674) and that he caused only bodily injury.Id. However,

the charge of second degree assault also alleged that Mr. Knuth used a deadly

weaponin the form of his hands. In order for the jury to find that Mr. Knuth's

hands were a deadly weapon,the jury was required to find that his hands

"in the manner it is used or intended to be used, is capable of causing death

or serious bodily injury." (R.CF pp. 2671-2672)

The Colorado Courts have recognized that hands can in some circumstances

satisfy the deadly weapon element. People v. Ross. 831 P.2d 1310 $Colo.l992^;

People v. Saleh, 45 P.3d 1272(Colo.2002). However, in every case to have

addressed the issue whether hands (or any body part) can satisfy the deadly

weapon element, involved the body part being used as an instrumentality to

an assaultin which serious bodily injury or death did occur, thus justifying

the body parts use as a deadly weapon, or object "capable of producing serious

bodily injury or death" under

18-1-901(3)(e),C.R.S. Ross, 831 P.2d at 1311

(victim had eight major fractures around eyes, nose, and mouth; victim had

great risk of severe permanent damage; and victim had to have his lower jaw

replaced as result of punch to the face); Saleh, 45 P.3d at 1273(victim'suffered

a severely broken wrist, sprained ankle, and fractured pelvis and was hospital

ized for six weeks) as a result of being kicked down a flight of stairs);

Grass v. People, 471 P.2d 602, 603 (Colo.1970)(victim suffered broken nose

and several lacerations to the face as result of punches and kicks); People

v. Hayes, 923 P.2d 221, 224-25 (Colo.App.1995)(victim sustained svere injuries

including a broken nose, lacerations to her face, and a hole in her lip as a

result of punches).

Here, Mr. Knuth did not use his hands in a manner to cause serious bodily

injury or death. The prosecution dropped the charge alleging serious bodily

injury in this case, and Mr. Knuth was charged and convicted under § 18-3203(l)(b),C.R.S. (2014)"with intent to cause bodily injury to another person

he or she causes such injury to any person by means of a deadly weapon."

Throughout the Colorado District Court Systems this type of conduct would

usually result in a third degree assault prosecution. See § 18-3-204, C.R.S.

(defining third degree assault as knowing or recklessly causing bodily injury

to another) and § 18-l-901(3)(c),C.R.S. (defining bodily injury as "physical

pain, illness, or any impairment of physical or mental condition"). Indeed,

there is not a single published Colorado Case that has concluded that fists

or feet (or any body part) is a deadly weapon, when there was no resulting

serious bodily injury or death. To conclude otherwise would transform any

assault in which fists are used, but no serious bodily injury results, into

a second degree assault by use of a deadly weapon because the use of fists

could have caused a fracture or break. These situations are prosecuted as

third degree assaults, a misdemeanor offense.

Here, Mr. Kntith was similarly situated to others who used there hands

in an altercation with another. However, most defendants are charged with

the lesser offense of third degree assault, a misdemeanor offense, in circum

stances where there is no serious bodily injury or death resulting in an

altercation using hands or fists.

Elevating an assault involving only bodily injury to a second degree

assault

by alleging hands are a deadly weapon transforms the offense from

a misdemeanor offense which carries a maximum sentece of two years in jail

to a class four felony classified as a crime of violence and of which carries

a sentence of 5-16 years in prison. Thus, the equal protection violation

results from the disparate treatment of similarly-situated individuals who

are involved in an altercation resulting in only bodily injury(as opposed

to serious bodily injury) in which hands are used-most of whom are prosecuted

only for third degree assaults, but some of whom, like Mr. Knuth are prosecuted

for the more serious second degree assault felony. Individuals charged with

third degree assaults aresimilarly situated to Mr. Knuth because the hands

in any altercationare "capable of causing serious bodily injury or death"

Therefore, equal protection is violated.

Because Mr. Knuth was treated differently from other similarly situated

individuals and prosecuted for a much more serious offense, based on nothing

more than the whim of the prosecutor, his conviction for second degree assault

can not stand. The application of the statutes to Mr. Knuth under the circum

stances of this case has violated equal protection of the U.S.Constitution.

EQUAL PROTECTION VIOLATION No. II.

Mr. Knuth hereby incorporates the above argument and laws into this

argument.

If, as result of a particular statutory scheme, an offender who acts

with less culpable intent and causes a less grievous result is afforded a

greater penalty, then the statute involved may violate constitutional

principles of equal treatment under the law. People v. Suazo, 867 P.2d 161,

164 (Colo. App. 1993). Even where the offenses implicated are different and

therefore persons charged under them are not "similarly situated" irrational

classifications may be nonetheless violative of fundamental constitutional

principles if the penalty prescribed is not rationally related to the recognized

legislative objective of establishing "more severe penalties for acts which

it believes have...more grave consequences." I'd. See also: U.S. Const. Amend.

V,VI, and XIV. People v. Marcy, 628 P.2d 69, 74-75 (Colo.1981); People v.

Jefferson, 748 P.2d 1223, 1226 (Colo.1988).

People v. Due Nguyen, 900 P.2d 37, 39 (Colo. 1995)(Subsection (l)(b)

violates equal protection guarantees, because a more severe sentence is imposed

for an attempt to commit bodily injury than an attempt to commit serious

bodily injury,)

Pursuant to subsection (l)(b) of the second degree assault statute,

a person commits second degree assault if "with intent to cause bodily injury

to another person, he or she causes such injury to any person by means of_

a deadly weapon." § 18-3-203(1)(b), C.R.S. (2014). Additionally, pursuant

to subsection (l)(g), a person commits second degree assault if "with intent

to cause bodily injury to another person, he or she causes serious bodily

injury to that person or another." § 18-3-203(1)(g), C.R.S. (2014).

Pursuant to these statutes, a defendant who causes only bodily injury

with his handsjLs punished the same, and then in other circumstances he is

punished more severe than one who caused serious bodily injury with his hands.

If one were to recieve a sentence of 16 years for causing bodily injury under

subsection(l)(b) then another recieves a sentence of 5 years under (l)(g)

for causing serious bodily injury with his hands. Whether he is punished

the same or more severe, this is an irrational classification violative of

equal protection of the law and due process.

Then if you add the misdemeanor assault statute from the previous argument

you have even more of a cluster. This is an irrational classification . Mr.

Knuth has recieved a more severe sentence under (l)(b) for causing bodily

injury with his hands than thousands of others who caused bodily injury with

their hands, who were only charged with misdemeanor assault. Then He also

recieved the same andjor a more severe sentence than thousands of others

who caused serious bodily injury with their hands under 18-3-203(1)(g).

Thus equal^protection is violated.

EQUAL PROTECTION VIOLATION No. III.

All previous arguments and laws hereby incorporated by reference.

Here, Mr. Knuth's hands were not used or intended to be used in

a manner capable of causing death or serious bodily injury. Rather, "the

manner (Mr. Knuth's hands were) used "was to cause only bodily injury, as

evidenced by the:.fact that Ms. Sandoval suffered only bodily injury, not

serious bodily injury. Furthermore, "the manner (Mr. Knuth's hands were)

...intended to be used "was also to cause bodily injury, not serious bodily

injury, as evidenced by the charge of second degree assault which alleged

that Mr. Knuth's intent was to cause only bodily injury. In other words,

Mr. Knuth's hands were used or intended to be used in a manner capable of

causing only bodily injury, because (a) Ms. Sandoval suffered only bodily

injury, not serious bodily injury, and (b) the charge of second degree assault

alleged that Mr. Knuth's intent was only to cause bodily injury, notserious

bodily injury. Yet, Mr. Knuth was punished the same and/or more severely

than one who causes serious bodily injury.

Therefore, this Court should hold that the second degree assault statute

violates equal protection, both on its face and as applied to Mr. Knuth.

Upon reversing Mr. Knuth's conviction for second degree assault, this Court

should remand this matter for further proceedings and plea negotiations,

as the only offer the prosecution extended to Mr. Knuth was to plead guilty

to the unconstitutional charge of second degree assault. (R.Tr. 3/25/16 pp.

28.) If this Court reverses Mr. Knuth's conviction for second degree assault

because his hands were improperly charged as deadly weapons, then his conviction

for menacing with a deadly weapon must also be reversed, as this conviction

is also based off his hands as a deadly weapon.

ARGUMENT FOR QUESTION II.

II .

WHETHER MR. KNUTHS CONSTITUTIONAL RIGHTS TO A SPEEDY TRIAL WERE VIOLATED,

BY THE STATE TAKING NEARLY TWO AND ONE HALF YEARS TO BRING HIM TO TRIAL

WITH VERY MINIMAL DELAY BEING ATTRIBUTABLE TO MR. KNUTH.

Both the Sixth Amendment

and Art. II,.Section 16 of the Colo. Const,

guarantee the accused the right to

a speedy trial. People v. Small, 631

P.2d

148, 154 (Colo.1981). Under both provisions, the right to a speedy trial

attaches with the filing of a formal charge, or with a defendants arrest.

U.S. v. Marion, 404 U.S. 307, 320 92 S.Ct 455, 30 L.Ed 2d 468 (1971); ...

"the defendant has the burden of proving that his constitutional right to

a speedy trial has been denied" Small, 631 P.2d

154.

The determination of such a claim is measured by an ad hoc balancing

of four factors: The length of

the delay, the reason for the delay, the -

defendants assertion or demand

for a speedy trial, and prejudice to thedefendant.

Barker v. Wingo , 407 U.S. 514, 92 S.Ct 2182, 33 L.Ed 2d 101 (1972); Small

631 P.2d at 154.

Gelfand v. People, 586 P.2d 1331, 1332 (1978) (none of these factors

is dispensible to a finding that speedy trial has been denied nor is any

one of them ipso facto sufficient to require such a finding. Rather all are

interrelated and must be considered together with any other relevant circumstatances)

Moody v. Corsentino, 843 P.2d 1355, 1363-64 (Colo.1993) (Although these

factors must be considered in combination, the length of the delay must be

presumptively prejudicial before other inquiry into the other factors is

warranted).People v. Glaser, 250 P.3d 632, 635 (Colo.App.2010) (Thereis no

established time period that automatically constitutes undue delay Id. at

1364, But in Dogget v. U.S • > 505 U.S. 647, 652 n.l 112 S.Ct 2686, 120 Ed.

2d 520 (1992), the Supreme Court noted that, depending on the nature of the

charges, generally lower courts have found post accusation delay to be prejud^

icial as it approaches one year).

LENGTH OF THE DELAY

Mr. Knuth was arrested oh.3/1/14, and was incarcerated until he went

to trial on 4/18/16. This is a delay of 2 years, 1 month, and 18 days (25

1/2 months)

"the delay that can be tolerated for an ordinary street crime is

considerably less than a complex conspiracy charge" Barker 407 U.S. at 530531.

Mr. Knuth's crimes are ordinary strret crimes and th’e state should not

have needed 25 1/2 months to bring him to trial. U.S. v. Batie, 433 F.3d

1287, 1290 (10th Cir. 2006).

The first factor of the Barker test - Length of the Delay - is actually

a dual inquiry. First as a threshold matter, only if the delay is "presump

tively prejudicial" need we inquire into the remaining Barker factors, Barker,

407 U.S. at 530, Second if the accused makes this showing, the court must

then consider, as one factor among several, the extent to which the delay

stretches beyond the bare minimum needed to trigger judicial examination

of the claim" Doggett,

505 U.S. at 652, 112 S.Ct. 2686; Cited in:

Jackson v. Ray, 390 F.3d 1254', 1261 (10th Cir. 2004)

The delay from arrest to trial is 25 1/2 months, this is 13 1/2 months

longer than needed to trigger judicial examination. Therefore, the A. Length

of the delay Weighs entirely in Mr. Knuth's favor, U.S. v. Margheim, 770

F.3d 1312, 1329 (10th Cir. 2014)

REASON FOR THE DELAY

The reason for the delay is the second prong in the Barker analasys,

Barker at 530. The Supreme Court places the burden on the state to provide

an inculpable explanation for delays in speedy trial claims. Id at 531

(focusing its evaluation of the delay on "the reason the government assigns

to justify the delay") (fn3)... See Wiggins 539 U.S. at 521, 123 S.Ct 2527.

Jackson v. Ray supra at 1261. Different weights should be assigned to different

reasons, Barker at 531, Cited in : People v. Glaser, supra at 635. Following

these guidlines a court should analyze these claims on a period by period

basis Glaser supra at 635.

In Mr. Knuth's case, he was set for arraignment on May 27, 2014, which

wascontinued because private counsel Martha Eskesen moved to withdraw. (R.Tr.

5/27/14 pp. 2—3). The district court granted the motion and appointed a public

defender to represent Mr. Knuth. (Id) The Case was set for arraignment on

June 23, 2014, which was continued at the request of the public defender.

(R.Tr. 6/23/14 pp. 2—3.) On July 7, 2014, a not guilty plea was entered on

behalf of Mr. Knuth, but Mr. Knuth did not enter this plea personally and

orally.(R.Tr. 7/7/14 pp. 3.)1

Colorado Rules of Criminal Procedure (C.R.C.P.) 10 provides: the arraignment

shall be conducted in open court... requiring him to enter a plea to the charge

See also People v. Boyd, 116 P.2d 193 (1941)(the plea must be entered orally

and in open court)

On December 10, 2014, the district court conducted a hearing on the

public defender's motion for continuance of trial scheduled for December

15, 2014. The public defenders motion was based on the defense's inability

to contact the emergency room physician who saw Ms. Sandoval, and based on

the prosecutions late endorsement of eyewitness Andrew Aucoin. (R.Tr. 12/10/14

pp. 2-22.) Although Mr. Knuth waived his speedy trial rights, he did so only

after a fair amount of hesitation and extensive advisement by the court.

Id at22-27.) The Court then rescheduled the trial for March 23, 2015. (Id

at 27.) At his next appearance on January 28, 2015, Mr. Knuth asserted that

his prior waiver of speedy trial was ineffective, which the district court

rejected. (R.Tr. 1/28/15 pp. 17-18.)

On February 18, 2015, after conducting a conflict hearing, the district

court found a breakdown in communication between Mr. Knuth and the public

defender. (R.Tr. 2/18/15 pp. 30.) The court then appointed alternate defense

counsel, and speedy trial started anew on March 2, 2015. (R.Tr. 3/2/15 pp.4.)

On April 3, 2015, the district court conducted another conflict hearing,

and Mr. Knuth raised a not guilty by reason of insanity defense (NGRI) during

this hearing. (R.Tr.4/3/15 conflict hearing pp. 11. Mr. Knuth also expressed

concern about his speedy trial and UMDDA rights. (Id. at 28-29.) After the

court denied Mr. Knuth's motion for substitution of counsel and advised him

of his rights, he chose to not proceed pro se. (Id at 58.)

After the conflict hearing, the district court conducted a preliminay

hearing on April 3, 2015 regerding added count 14. (R.Tr. 4/3/15 prelim,

hearing pp.3.) At this hearing, Mr. Knuth unequivically indicated that he

wished to enter a plea of NGRI. Specifically, his counsel stated that Mr.

Knuth was "insistent that he wants to enter (a plea of NGRI)" (Id at 38.)

However, Mr. Knuth's counsel stated "I do not feel there is any legal or

factual merit to the plea that Mr. Knuth wants to enter." (Id) The district

court then stated:

Mr. Knuth, to enter a plea of guilty is obviously your sole decision;

however, whether to enter a not guilty plea or not guilty by reason

of insanity plea is a legal strategy decision to be made by legal counsel,

and I believe the court will only and only has to accept a not guilty

by reason of insanity plea if there is a legal basis or a good faith

basis for the plea that is not being interposed solely for the purposes

of delay. So if you have some legal basis or good faith basis to indicate

why that plea should enter, I'll consider it, but otherwise I'm not

going to allow this just because thats what you want to enter, because

it's a choice that's available.(Id).

(Id.) The court then asked Mr. Knuth how he wished to proceed, and Mr. Knuth

replied, "I’d just like to let you know it's not delay. I believe I've got

a reason from what I've read and case law I've read,

I'd like to enter a

not guilty by reason of insanity plea." )Id. at 39.) The court denied Mr.

Knuth's request to enter an NGRI plea and instead entered a plea of not guilty

on all charges. (Id. at 42.) The district court then calculated speedy trial

as August 30, 2015 and scheduled trial for July 13, 2015. (Id. at 42-44.)

On May 26, 2015, private counsel Thomas Henry appeared with Mr. Knuth

and entered an NGRI plea on his behalf, and the district court accepted the

NGRI plea and ordered a psychiatric evaluation for Mr. Knuth. (R.Tr. 5/26/15

pp. 13-14.) Mr. Henry also raised concerns about Mr. Knuth's UMDDA rights

at this hearing. (Id. at 19-21.)

On June 8, 2015, the district court acknowledged that Mr. Knuth had

filed a UMDDA request on March 10, 2015, but stated his speedy trial and

UMDDA rights were tolled pending the evaluation.(R.Tr. 6/8/15 pp. 5.)

On December 2, 2015, the district court conducted another conflict hearing

based on Mr. Henry's motion to withdraw, and Mr. Knuth again raised concerns

about his speedy trial and UMDDA rights. (R.Tr. 12/2/15 pp.14,29.) On December

7, 2015, Mr. Knuth expressed frustration with the delay in his case becasuse

he believed that the psychiatric evaluation would be completed within six

months of entering his NGRI plea. (R.Tr. 12/7/15 pp. 8-10)

On February 1, 2016, the district court conducted a hearing after the

psychiatric evaluation report was filed on January 14, 2016. (R.Tr. 1/1/16

pp. 2.) At this hearing, Mr. Knuth indicated that he wished to remove Mr.

Henry based on ineffective assistance of counsel, and again raised his right

to speedy trial. (Id. at 5-9.) The court set a hearing regarding the issue

of speedy trial for March 17, 2016, and tantavely set trial for May 2, 2016.

(Id.)

On March 17, 2016, Mr. Knuth reiterated, "I'm not willing to waive my

constitutional speedy trial rights" (R.Tr. 3/17/16 a.m. pp. 42) and "I have

a constitutional right to speedy trial. I'm not willing to waive that right

by obtaining alternate defense counsel" (Id. at 49).

On April 11, 2016, the district court determined that Mr. Knuth was

entitled to a speedy trial by April 18, 2016, despite Mr. Knuth's argument

that his speedy trial rights had already been violated. (R.Tr. 4/11/16 pp.

4tt24.) During the first two days of trial, Mr. Knuth objected to having

to choos&tf£ between his constitutional right to speedy trial and his

constitutional right to effective assistance to counsel. (R.Tr. 4/18/16

pp. 11-16, 24-25, 41-44; R.Tr. 4/19/16 pp. 175-176.) Mr. Knuth proceeded

to trial pro se starting on April 18, 2016.

Generally, a defendant has the right to determine what plea to enter.

Bergerud, 223 P.3d at 699. The defense of insanity may only be raised by

a specific plea entered at the time of arraignment, except that the court,

for good cause shown, may permit the plea to be entered at any time prior

to trial. § 16-8-103(1), C.R.S. 2014. The Court must balance "the public's

interest in not holding criminally liable a defendant lacking criminal

responsibility and the defendants interest in autominously controlling the

nature of (his or) her defense." Hendricks v. People, 10 P.3d 1231, 1240

(Colo.2000). The court must consider a defendant's interest in autonimous

decision making with respect to his choice of defense. Id at 1242. The

defendant's choice should be accorded substantial weight in evaluating whether

imposition of a mental status defense results in a " just determination

of the charge against the defendant." Id at 1242.

Once a defendant has shown that the insnity plea is tendered in good

faith, the court's inquiry must be focused on the reason for the delay in

entering the plea, rather than the potential merits of the insanity defense.

People v. Red, 692 P.2d 1150, 1152(Colo.App.1984). In Reed, the defendant

stated that he did not enter the plea during his arraignment because of

difficulties he had with his attorney which eventually led to new counsel

being assigned to represent him. Id. Where substitute counselmoved to enter

the NGRI plea at the first hearing after he was convinced that he had a

good faith basis for it, the Reed court concluded that the trial court abused

its discretion in denying the defendants motion to enter a plea of NGRI.

Id.

In Mr. Knuth's case , the district court erroneously delayed his trial

in derogation of his right to a speedy trial. When the court accepted Mr.

Knuth's NGRI plea on May 26, 2015, the court specifically stated:

The Court is going to find good cause to enter a not guilty

by reason of insanity plea at this point in time....

The Court finds credible that (Mr. Knuth) probably did inquire

of (the public defender) or suggest ot her that he intended to

file or enter such a plea. The Court will also note that after

the preliminary hearing on the added counts, that he also indicated

to former (ADC Attorney) as well, his desire to enter a not guilty

by reason of insanity plea, even though that attorney thought

there was no legal basis for it.

Mr. Knuth now has new counsel, who shortly after entering

on this case, has filed a motion to allow the entry of the plea

of not guilty by reason of insanity. The Court will find that

it believes that Mr. Knuth has always wanted to enter such a plea.

The entry of a plea in a criminal proceeding is one of those rights

that is generally reserved to the defendant, regardless of the

position of legal counsel.

(R.Tr. 5/26/15 pp. 13-14.)1

Under the circumstances of this case, the district court should have

calculated Mr. Knuth's speedy trial rights based on it's finding that Mr.

Knuth "has always wanted to enter such a plea," specifically starting when

he was represented by the public defender on July 7, 2014. If the Court would

have fdLlowaithe statutory mandates and required Mr. Knuth to enter his plea

personally and orally ©ft IKS July 7, 2014, by the Court's own findings, there

is no doubt Mr. Knuth would have entered the NGRI plea on July 7y 2Q14. If the

Court had calculated Mr. Knuth's speedy trial rights starting on July 7, 2014,

then he would have been entitled to proceed to trial sometime in early 2015

(after a period of tolling during a psychiatric evaluation), nearly a year

earlier than his April 18, 2016 trial.

Thus, the district court violated Mr. Knuth's constitutional rights to

due process and speedy trial by conducting his trial on April 18, 2016, and

the charges in this case should have been dismissed.

Additionally, the district court erroneously denied Mr. Knuth's specific

request to enter an NGRI plea on April 3, 2015, and did not accept his NGRI plea

until May 26,2015, which was 53 days after Mr. Knuth first asked the court to

enter an NGRI plea. When Mr. Knuth stated that he wished to enter an NGRI plea

on April , 3,2015, the district court mistakenly focused on the merits of an MGRI

plea. See Reed, 692 P.2d at 1152. Instead, the district court should have focused

The Court had also previously noted, "it may be true that defendant wished

to enter the (NGRI) plea (on July 7, 2014), but his counsel disagreed." (R.CF

pp. 1388.)

on the reason for the delay in entering the plea, and the court should have

accorded substantial weight to Mr Knuth's choice in evaluating whether to allow

him to enter an NGRI plea. Dee id. Thus, by the court not accepting Mr Knuth's

NGRI plea on April 3, 2015, and Mr. Knuth ultimately not getting his plea of .

choice entered on record until May 26,2015 the Court delayed his trial by

53 days.

Furthermore, at this May 26, 2015 hearing, Upon the entrance of Mr. Knuth's

NGRI plea the Court had several statutory duties to perform.

16-8-106 C.R.S. (2014), provides:

All examinations ordered by the court in criminal cases shall be

accomplished by- the entry of an order of the court specifying the

place where suvh examination is to be conducted and the period of

time allocated for such examination. The defendant may be committed

for such examination.to the Colorado mental health institute at Pueblo,

the place where he or she is in custody, or such other public

institution designated by the court. In determining the place where

such examination is to be performed, the court shall give priority

to the place where the defendant is in custody, unless the nature

and circumstances of the examination require designation of a differ

ent facility. The defendant shall be observed and examined by one

or psychiatrists of forensic psychologists during such period as the

court directs...."

The Court failed in many of these statutory mandates. Under these laws, the

Courts first duty was to consider the "nature and circumstances of Mr. Knuth's

NGRI plea. The Court did not perform this duty.(Hr,g Tr. 5/26/15)(R.Cf. pp.

592-593). Within the Court's 5/26/15 "ORDER-IN CUSTODY EVALUATION" Par. 4,

provides an area for the Court to fill out, specifying why the examination

is to be performed at the Colorado Mental Health Institute at Pueablo(CMHIP),

instead of the county jail. The Court left this area blank. The nature and

circumstances of Mr. Knuth's plea was based on him being involuntarily drugged

on the night of his arrest.(R.Tr. 4/3/15,pp. 40:1-6). Further Mr. Knuth had

already been subjected to nearly an 11 month delay in entering his NGRI plea.

After considering the nature and circumstances entering the plea, the

Court must enter an order specifying where such examination is to be conducted.

Upon entrance of this order, the court "shall give priority to the county

jail" unless the nature and circumstances of the examination require designation

of a different facility. The Court ordered the examination to be completed at

CMHIP. The nature and circumstances of Mr. Knuth's NGRI plea did not require

designation of a different facility. In fact

during the examination period,

the Court recieved letters from CMHIP requesting the Court to change the

place of examination to the county jail. (R.Cf. pp. 960, 1818). Also, upon

the entrance of Mr. Knuth’s NGRI plea the Court informed Mr. Knuth the only

place his examination could be performed was at CMHIP.(R.Tr. 5/26/15,pp.

8:15-21.)

On 9/15/15 CMHIP sent a letter to the Court providing that it could

perform Mr. Knuth’s examination at the county jail,(R.CF. pp.960.), and that

CMHIP would not be able to comply with the Court order to have Mr. Knuth's

examination completed by 9/28/15,(Id.)

After the Court takes no action, CMHIP again on 10/23/15 sends the Court

a letter , this time explaining to the Court how to properly interpret 168-106,C.R.S.(2014). Mr. Knuth confronted the Court with this letter via motion

and in open court.(R.Tr. 4/11/16). The Court could not provide any answers

as to why it subjected Mr. Knuth to a 7 month and 19 day examination period

when ultimately after Mr. Knuth's examination period was changed to the county

jail on 12/2/15,(R.CF. pp. 2781), the examination was performed 30 days

later and the report filed 15 days after that.

Furthermore, during the same timeframe Mr. Knuth was being subjected

to this delay to obtain his examination, there was a court order in place

that mandated CMHIP to provide speedy evaluations to pretrial detainees,

Center for Legal Advocacy v. Bicha, civil action No. ll-cv-2285-BNB, United

States District Court for the District of Colorado, 2012 U.S. Dist. T.F.YTS

49681, April 9, 2012.

The agreement reached in this case requires the

department of human services to admit a pretrial detainee to CMHIP within

28 days of a judge determining the need for an evaluation or restorative

treatment and to obtain a monthly average of no more than 24 days for all

patients admitted to CMHIP for evaluation or treatment. (Id.) I currently

am unable to research this subject any further due to COVID-19 and the facility

law library" being closed. Would this Honorabe Court please review the attached

copies of newspaper articles on this subject,(App. Pgs. /9f ~ 195 ). If there is

any other research this Court can perform it would be greatly appreciated.

The Colorado High Courts have long held the examination and report must

be completed in a reasonable time. See: People v. Renfrow, 564 P.2d at 413;

People v. Brown, 622 P.2d 573 (1980); People v. Deason, 670 P.2d 792, 798

(Colo.1983).

If this. Court does not already find the timeframe in between April 3,

2015 until The examination and report was filed on January 14, 2016 is

attributable to the state due to the errors of the July 7, 2014 arraignment,

then Mr. Knuth requests the Court find that the 53 days from 4/3/15 to 5/26/15

are attributable to the state, and further find that the lower court should

have ordered Mr. Knuth's evaluation to be performed at the county jail in

the first place and that only 45 days of the time period between 5/26/15

and 2/1/16 was needed to complete the examination.

That leaves nearly 6

months of time attributable directly to the state.

For a total of around

8 months of time from the 4/3/15 arraignment, and if counted from the July

7, 2014 arraignment there would be nearly 1 and 1/2 years of time attributable

to the state .

Therefore, this period of time weighs heavily in Mr. Knuth's favor.

C. ASSERTION OF THE RIGHT

Thedefendants assertion of the right is "perhaps the most important"

of the four Barker factors, Batie, 433 F.3d at 1291, "the defendants assertion

of the right is entitled to strong evidentiary weight in determining whether

the defendant is being deprived of the right" U.S. v. Dirden, 38 F.3d 1131,

1138 (10th Cir. 1994) while a defendant who fails to demand a speedy trial

does not inherently waive that right "we emphasize that failure to assert

the right will make it difficult for a defendant to prove he was denied a

speedy trial" Barker at 532, and the defendants burden of showing he sesired

a speedy trial is not satisfied merely by moving to dismiss after the delay

has already occured" Batie at 1291, Thus, if the defendant fails to demand

a speedy trial, moves for many continuances, or otherwise indicates he is

not pursuing a speedy resolution of his case, this factor weighs heavily

against the defendant, U.S. v. Gould, 672 F.3d 930, 938 (10th Cir. 2012).

"the sooner a criminal defendant raises the speedy trial issue, the

more weight this factor lends to his claim, Jackson v. Ray, 390 F.3d 1254,1263

(10th Cir. 2004)

"the more serious the deprivation, the more likely a defendant is to

complain" Barker at 531.

"in assessing a defendants assertion of the right, it is appropriate

to consider" the frequency and force of his objections" U.S. v. Hicks, 779

F.3d 1163, 1168(10th Cir. 3-6-2015).

Mr. Knuth was arrested on 3/1/14. His speedy trial rights were first

asserted on 7/7/14 when the not guilty plea was entered on his behalf. See:

18-1-405, C.R.S. (2014). The accused's speedy trial rights are initiated

upon the entrance of a plea. "ah accused personsright to speedy trial is

ultimately grounded on the federal and state constitutions, and statutes

rekating to speedy trial are intended to render these constitutional guarantees

more effective, Simakis v. District Court, 577 P.2d 3 (1978)

"The UMDDA is one of several statutes implememting a defendants const

itutional rights to speedy trial" People v. Higinbotham, 712 P.2d 993 (Colo.

1996).

"This rule and 18-1-405 clarify and simplify the parameters of the

constitutional right to a speedy trial" People v Chavez, 779 P.2d 375 (Colo.

1979.)

Mr. Knuth was set for trial on 12/15/14, 3/23/15, and 7/13/15 all of

these trials were vacated, due to Mr. Knuth's effort to seek a trial that

was held under the pretenses of a NGRI plea. Mr. Knuth could not proceed

to trial on any of these dates because he did not have his plea of choice

entered on record. Mr. Knuth has constitutional rights to present a complete

and meaningful defense, fair trial, and due process, If Mr. Knuth would have

proceeded to trial on any of these dates it would have been in violation

of these rights, as he did not have his plea of choice on record. The Court

placed Mr. Knuth into an intolerable position of choosing between constitutional

rights and left him without an effective remedy at trial. Simmons v. United

States, 390 U.S. 377, 394 (1968) (to require a person to surrender one

constitutional right in order to gain the benefit of another is simply

intolerable). See also: McGautha v California, 402 U.S. 183, 213 (1971).

An overview of the record in this case reflects that Mr. Knuth went

through a great effort to get his plea of choice entered on record and to

proceed to trial with an NGRI plea and defense. The record or an evidentiary

hearing would reflect Mr. Knuth lost two seperate counsels of choice in his

pursuit to enter his NGRI plea.

On 3/10/15 Mr. Knuth again asserted his Constitutional speedy trial

rights by filing a demand for speedy disposition of his case pursuant to

the UMDDA 16-14-101 - 108, C.R.S.(2014), Higinbotham supar at 994.

(R.CF. pp. 405-406).The Court recognized this filing and Mr. Knuth's right

to speedy trial in open court. (R.Tr. 6/8/15, pp. 3— 6). Mr. Knuth proceeded

to trial at his earliest ability to have a trial to an NGRI defense.

Would the Court also review the previous pages for an overview

of the instances Mr. Knuth demanded and asserted his rights to speedy trial.

THEREFORE, the C. Assertion of the Right weighs heavily in Mr. Knuth*s

favor.

PREJUDICE TO THE DEFENDANT

"The defendant need not show actual prejudice

(the fourth factor)

to succeed in showing a violation of his right to a speedy trial" Doggett

supra, ""where the other Barker factors, especially the length and reason

for the delay,.weigh heavily in the defendants favor" Nelson v. Hargett,

989 F.2d 847, 853(5th Cir.1993) "if the government is more to blame than

the defendant than prejudice is presumed" Doggett at 657. Cited in:

U.S. v. Fernandez (D.D.C. 5-26-2009) at 73. "no showing of prejudice is required

when the delay is over a year and attributable to the government" United

States v. Shell, 974 F.2d 1035, 1036 (9th Cir 1992),(Citing Doggett at 65758.)

Mr. Knuth requests the Court find the prejudice in this case is presumed

due to the length of the delay attributable to the state. If the Court needs

a showing of actual prejudice, then Mr. Knuth makes the following argument.

In assessing the degree of prejudice, the court must consider any specific

prejudice, as well as the three kinds of harm identified by the Supreme COurt

that generally are caused by delays from indictment to trial, Doggett at

654.

First, Mr. Knuth was erroneously denied an evidentiary hearing to present

specific prejudice into the court record,(R.CF pp. 1987.) Doggett supra at

654 provides he is entitled to an evidentiary hearing. If specific prejudice

is needed Mr. Knuth should be remanded for an evidentiary hearing.

Second, Mr. Knuth was held in custody for the entire 25 1/2 months,

the seriousness of a pre trial delay worsens when it is accompanied by

pre trial incarceration, Barker at 533. Pro-longed pre trial incarceration

is a well established type of prejudice a defendant may rely on. U.S. v.

Margheim, 770 F.3d 1312, 1329 (10th Cir. 10-29-14)

Due to prolonged pre trial incarceration and everything else depicted

above, the defendants anxiety and concern has been increased beyond thase

simislrly situated, U.S. v. Benally, at 15 (N.M. 12-28-2010)

THEREFORE, the remedy is severe, dismissal of the information .

United States v. Seltzer, 595 F.3d 1170, 1175 (10th Cir. 2010)

ARGUMENT FOR QUESTION III.

III.

WHETHER MR. KNUTH'S CONSTITUTIONAL RIGHTS TO DUE PROCESS OF LAW AND

FAIR TRIAL WERE VIOLATED BY THE TRIAL COURT CONVICTING HIM OF SECOND

DEGREE KIDNAPPING WITHOUT THERE BEING SUFFICIENT EVIDENCE IN THE RECORD

TO SUPPORT THIS CHARGE.

(Mr. Knuth moved for judgment of aquittal,(R.Tr,4/20/16pp.214-223)

Due process of law requires the prosecution to prove beyond a reasonable

doubt every fact necessary to constitute the crime charged before

the accused may be convicted and subjected to punishment. In re Winship,

397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368(1970);Hendershott

v. People, 653 P.2d 385, 390 (Colo.1982). When reviewing a ruling

on a motion for judgment of aquittal, an appellate court must determine

whether the relevant evidence, both direct and circumstantial, when

viewed as a whole and in the light most favorable to the prosecution,

is substantial and sufficient to support a conclusion by a reasonable

person that a defendant is guilty of the charge beyond a reasonable

doubt. People v. Paiva, 765 P.2d 581 (Colo. 1988).

Although the prosecution is given the benefit of every reasonable

inference that might fairly be drawn from the evidence, there must

be a logical and convincing connection between the facts established

and the conclusion inferred. People v. Gonzales, 666 P.2d 123, 128

(Colo.1983.) The conclusion inferred may not be based on guessing,

speculation, or conjecture. Kogan v. People, 756 P.2d 945, 950 (Colo.1988).

Nor will a modicum of evidence rationally support a conviction beyond

a reasonable doubt. Id. A judgment of aquittal must be entered where

the evidence is insufficient to support a verdict of guilty. People

v. Rickman, 155 P.3d 399(Colo.App.2006)(reversing trial court's denial

of motion for judgment of aquittal).

SECOND DEGREE KIDNAPPING

"Any person who knowingly seizes and carries any person from

one place to another, without his consent and without lawful justification

commits second degree kidnapping." § 18-3-302(1), C.R.S. 2014. The

asportation element of second degree kidnapping is satisfied when

"the defendant moves a victim from one place to another." People v.

Owens, 97 P.3d 227, 235 (Colo.App.2004).citing People v. Harlan, 8

P.3d 448, 476-477 (Colo.2000).

The movement of a victim necessary to sustain a second degree

kidnapping conviction—from one place to another—need not be substantial

and may be incidental to another crime. People v. Bell, 809 P.2d 1026, 1033

(Colo.App.1990). Where the prosecution relies on insubstantial movement , a

showing that the movement substantially increased the risk of harm to a victim

suffices to support the conviction. People v. Fuller, 791 P.2d 702, 706 (Colo.

1990).The defendant’s conduct substantially increasing the risk of harm to

the victim is not a material element of second degree kidnapping, but instead

is a factual circumstance reciewing courts consider to determine whether there

is sufficient evidence to prove that the defendant moved the victim from one

place to another. Harlan, 8 P.3d at 476.

In Bell, 809 P.2d 1026, a division of the Colorado Court of Appeals concluded

that forcing a victim from the living room to a bedroom, leaving him alone

in the bedroom, and confining him for a short period of time did not substantially

increase the risk of harm to the victim. Id. at 1033. As such, the defendants

conviction for second degree kidnapping was reversed because the circumstances,

as a matter of law, did not satisfy the asportation requirement of second degree

kidnapping. Id at 1033; see also : Owens, 97 P.3d at 237 (reversing conviction

for second degree kidnapping because trial courts instructions may have caused

jury erroneously to believe that (1) increased risk of harm was of no relevance

to second degree kidnapping and (2) any movement, however short, would in and

of itself support a conviction for second degree kidnapping).

Mr. Knuth was charged with second degree kidnapping based on allegations

that when Ms. Sandoval was at the door of their bedroom, she tried to walk

down the hallway to get away from Mr. Knuth. Mr. Knuth then allegedly picked

her up from the hallway outside their bedroom and carried her down the stairs •

to the front door of their shared house, and then dragged her from the front

door back to hteir bedroom. In sum, Mr. Knuth allegedly moved Ms. Sandoval,

from the hallway outside their bedroom to inside their bedroom. Under these

circumstances, even when viewed as a whole and in the light most favorable

to the prosecution, the evidence was insufficient to support a conclusion by

a reasonable person that Mr. Knuth was guilty beyond a reasonable doubt of

second degree kidnapping.

Like in Bell, in which the court found that moving the alleged victim

from the living room to the bedroom of his home did not substantially increase

the risk of harm to him, Mr. Knuth's movement of Ms. Sandoval from the hallway

outside their bedroom to inside their bedroom did not substantially increase

the risk of harm to her. See: People v. Bondsteel, ---- P.3d---- (Colo.App.2015)

(reversing conviction for second degree kidnapping as to one of two alleged

victims because evidence was insufficient where insubstantial movemet next

to trail did not substantially increase the risk of harm to her); see also

Brimage v. State, 918 S.W.2d 466, 487 (Tex.Crim.App. 1994)(stating "The removal

of a rape victim from room to roomwithin a dwelling solely solely for the con

venience and comfort of the rapist is not kidnapping; the removal from a public

place to a place of seclusion is. The forced direction of a store clerk to

cross the store and open a cash register is not kidnapping; locking him in

a cooler to facilitate escape is")

Here, the movement of Ms. Sandoval from the hallway outside the bedroom

to inside the bedroom did not rise to the level of second degree kidnapping

because it did not substantially increase her risk of harm. Being in the bedroom

did not make Ms. Sandoval substantially less able to leave than if she were

in the hallway. To the contrary, Ms. Sandoval ultimately left the house from

the bedroom. Even if there was some minimal increase in the risk of harm to

Ms. Sandoval because she was a few steps further from the door of the house,

this is certainly not a substantial increase in the risk of harm to her, as

required by the law.

Under the facts of this case, any evidence in support of Mr. Knuth's conviction for second degree kidnapping amounted to a

"modicum" of evidence,

which can not properly support a conviction under any circumstances, especially

in a emotionally charged case alleging domestic violence. Any inference that

Mr. Knuth committed second degree assault instead of misdemeanor false imprison

ment would have been improperly based on guessing, speculation, or conjecture.

REASON II.

Here, as in Owens supra at 237, the jury was instructed in such a way

as to lesson the prosecutions burden of proof,(R.CF pp. 2654 -2713) The jury

instructions tracked the statutory language, Id. If it takes a substantially

increased risk of harm to convict Mr. Knuth then the jury should have been

instructed in such a way. Here, the Courts have long held that the type of

movement alleged here is "insubstantial" Fuller at 706; Bell at 1033.

Owens supra at 235 provides "where it is unclear whether the victim's movement

was substantial, jury should be instructed on the relevance of increased risk

of harm"

Here, the jury was not instructed on the increased risk of harm factor,

(R.CF pp. 2654 - 2713). Thus as in Owens at 237 the conviction must be reversed

because "the trial court's instructions may have caused the jury erroneously

to believe that (1) increased risk of harm was of no relevance to second degree

kidnapping and (2) any movement, however short, would in and of itself support

a conviction for second degree kidnapping." See also: People v. Kanon, 186

Colo. 255, 259 (1974) (prejudice to the defendant is inevitable when the court

instructs the jury in such a way as to lesson the prosecutions burden of proof

to prove each element beyond a rasonable doubt).

Whether a victims harm is substantially increased is a factual determination

for a jury to decide. See: In re Winship, 397 U.S. 358, 364 (1970)(holding

that the government must prove "every fact necessary to constitute the crime"

beyond a reasonable doubt) See also: U.S v. O'Brien, 560 U.S. 218, 224 (2010).

The Winship "beyond a reasonable doubt" standard applies in both federal

and state proceedings, Sullivan v. La. 508 U.S. 275, 278 (1993).

Therefore, Mr. Knuth's Fifth, Sixth, and Fourteenth amendmentrights of

the U.S. Constitution are being violated due to there being insufficient

evidence in the record to support the conviction, and this charge must be vacated,

as the courts have made the determination that the victims harm was substantially

increased not a jury.

Sincerely

Nathan Knuth

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.