Todd v. County Court

Filing 28

ORDER granting in part and denying in part 24 Motion to Suspend Briefing andto Compel the Filing of a Complete Trial Court Record. The Motion is granted to the extent that Applicant may file a traverse to the Respondents Answer [# 22 ] on or before 11/1/2013. The Motion is denied as moot to the extent it seeks to compel the filing of a complete trial record. By Magistrate Judge Kristen L. Mix on 10/2/2013.(klyon, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-01264-MSK-KLM
ISAAC TODD,
Applicant,
v.
LARIMER COUNTY COURT, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.

ORDER
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on the Applicant’s Motion to Suspend Briefing and
to Compel the Filing of a Complete Trial Court Record [Docket No. 24; Filed on
September 16, 2013] (the “Motion”). On September 20, 2013, Respondent Larimer County
Court filed a Response [#27] to the Motion.
Applicant states in the Motion that the state court record filed in this Court on July
31, 2013 is incomplete because it does not contain the documentary exhibits, the tendered
but refused jury instructions, the written jury instructions, or the jury verdicts. For relief,
Applicant asks the Court to order the Larimer County Court to file a complete record of the
state court proceeding; to allow Respondents seven days to amend their Answer; and, to
allow Applicant thirty days from the filing of the amended Answer to file a Traverse.
Respondent Larimer County Court responds that prior to Applicant’s filing of the
motion, Respondent acknowledged through email correspondence to Applicant’s counsel
that it had inadvertently omitted several sealed exhibits from the CD of the state court

record transmitted to this Court on July 31, 2013. Respondent states that it has located
those documents and transmitted them to Applicant. Respondent further states that the
original jury instructions and jury verdicts were not made part of the appellate record for
Applicant’s direct appeal and that Respondent is unable to locate them. Respondent
confirms that the CD docketed in this Court on September 18, 2013, see [#26], contains
all of the documents in the court’s file.

The CD does not include the original jury

instructions, tendered but refused instructions, or jury verdicts.
The Court finds that the Larimer County Court worked diligently to ensure
compliance with the Court’s July 24, 2013 Order for State Court Record, see [#15] after
Respondents’ counsel was notified by Applicant’s counsel in a September 6, 2013 email
that the state court record filed in this Court in August 2013 was deficient. See [#27-1].
The Court further finds that the complete record of proceedings in People v. Todd, Larimer
County Court Case No. 10T1624, as it exists in the Larimer County Court, was transmitted
to this Court on September 18, 2013. As such, the motion to compel is moot and appears
to have been unnecessary.
Moreover, the resolution of Applicant’s habeas claim does not require this Court’s
consideration of the missing jury instructions or jury verdicts. As described by Applicant:
The petition herein involves the County Court’s refusal to permit a witness’s
undergraduate transcript and summary exhibits derived from that transcript
into evidence. The state’s expert witness claimed that repeated prior sworn
testimony in which she claimed her Bachelor of Science degree was in
Chemistry and Biology, that she had a major in Chemistry, when her degree
was only in Biology, was inadvertent and that she had believed when she had
previously testified that she had a double major. The transcripts established
her GPA in Chemistry and the fact that none of the Chemistry courses she
took was within the allowed curriculum for Chemistry majors.
[#24] at 3. Applicant claims in the amended application that the trial court’s restrictions on
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defense counsel’s ability to cross examine the state’s expert witness about (a) her perjured
testimony concerning her college major, and (b) the witness’s bias toward, and motivation
to continue to provide favorable testimony for, the State, violated his Sixth Amendment
confrontation rights under Davis v. Alaska, 415 U.S. 308 (1974). See [#5] at 4. Because
the Court can resolve Applicant’s constitutional claim without regard to the jury instructions
or verdict forms, the absence of those documents from the state court record does not
prejudice the Applicant. Accordingly,
IT IS HEREBY ORDERED that the Motion [#24] is GRANTED in part and DENIED
as moot in part, as follows. The Motion is granted to the extent that Applicant may file
a traverse to the Respondent’s Answer [#22] on or before November 1, 2013.1 The
Motion is denied as moot to the extent it seeks to compel the filing of a complete trial
record.

Dated: October 2, 2013

1

Respondents represent that they will not file an amended Answer. [#27] at 5.

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