Shane French of Cortez, who was convicted of threatening his parole officer with a deadly weapon and sentenced to three years in prison, could get a new trial because a district court in Montezuma County refused to instruct the jury on French’s contention that he acted in defense, the Colorado Court of Appeals ruled last week.
The case, People v French, next will go to the Colorado Attorney General’s Office, which will decide whether to appeal the decision to the Colorado Supreme Court or send the case back to the 22nd Judicial District Court in Cortez for a new trial.
The Appeals Court issued its decision Sept. 1.
District Attorney Matthew Margeson said Wednesday he was awaiting word from Attorney General Philip Weiser’s office. Margeson prosecuted the case as assistant DA in 2020.
“Every defendant has the right to have an appellate court review their conviction,“ Margeson added in an email. ”Here, the Court of Appeals disagreed with a decision of the trial judge. The District Attorney’s Office stands ready to retry the case if necessary.“
In January 2020, a jury found French guilty of menacing parole officer Ryan Jenkins but deadlocked on the charge of first-degree assault, which was dismissed.
District Judge Todd Plewe sentenced French to three years in prison and two years of parole in May 2020 after a guilty verdict for felony menacing.
The confrontation occurred when Jenkins arrived at French’s house on the afternoon of March 5, 2019, to serve paperwork. According to evidence presented in the two-day trial, Jenkins arrived at the house unannounced, and French’s father let him in and escorted him to French’s bedroom.
The parole officer knocked on the bedroom door but, before he identified himself, French opened the door and told him, “Get out of the house.”
After Jenkins identified himself, French again told him to get out.
“I didn’t let you in,” he said.
When French, a qualified individual with a disability, advanced toward Jenkins holding a sock weighted with a rock, he was ordered to stop, then was tased and fell to the floor, according to court records. French was tased again by Jenkins when he tried to pick up the weighted sock.
The encounter lasted seconds.
The 22nd Judicial District Attorney’s Office, under then-District Attorney William Furse, charged French with felony menacing and first-degree assault for threatening his parole officer with a deadly weapon – the “sock with a hard, weighted object inside.”
The jury found French guilty of felony menacing but could not reach a verdict on the assault charge. The District Court declared a mistrial on the assault count, which the prosecution later dismissed.
Then-Assistant DA Margeson requested an aggravated range sentence of six years, but Plewe said it was not appropriate.
Plewe noted that French had served 449 days in custody at the Montezuma County jail since the incident with his parole officer at French’s Cortez home.
Margeson is now district attorney of the 22nd Judicial District, and Furse has been appointed to the District Court, replacing the retiring Chief Justice Douglas Walker.
French’s public defenders – Megan A. Ring and Casey Mark Klelas – contended in the appeal that the District Court erred by refusing to instruct the jury about his right of “defense of premises,” based on evidence that French believed there was a trespasser in the home.
Judges Jaclyn Casey Brown and Neeti Pawar of the Colorado Court of Appeals agreed.
“Because the majority agrees with French’s first contention, we reverse and remand for a new trial,” the court said.
The Appeals Court further stated that French did not know the parole officer was coming, and that he was asleep in the bedroom behind a closed door. Also, he told the parole officer to leave before he identified himself, that Jenkins was dressed in regular street clothes and had his hands on his taser and handgun, and the entire encounter lasted mere seconds.
“Because we conclude that there was ‘some credible evidence’ that French reasonably believed the parole officer was unlawfully trespassing, we conclude that the District Court erred by rejecting French’s tendered instruction on defense of premises,” the court said. “Whether the jury would ultimately believe French’s affirmative defense is a different question. We conclude only that French was entitled to a jury determination of these issues under an appropriate instruction.
“Had the instruction been given, the jury could have considered defense of premises as an affirmative defense to the menacing charge,” the court said. The jury would have learned that prosecutors “had the burden of disproving the affirmative defense beyond a reasonable doubt.”
A trial court’s refusal to give the instruction “implicates” the defendant’s constitutional rights, the appeals court said.
Judge Steve Bernard dissented. His opinion affirmed the District Court’s rejection of the defense of premises instruction, concluding that a “scintilla of evidence” that Jenkins might have been a trespasser vanished as soon as he identified himself.
The District Court denied the instruction to the jury by reasoning that Jenkins was invited into the home, had the right to be there and was known by French. Consequently, no reasonable person would have believed Jenkins was a trespasser, he said.
French was part of a high-profile tasing case at the same residence in 2014 involving the Cortez Police Department. He was repeatedly tased and charged with assault and resisting arrest in that case. He pleaded not guilty, and a jury cleared him of all charges.
When Jenkins arrived at his house in March 2019, French was “very on edge, did not know who it was initially, and acted (as if) coming from a place of fear and self-preservation,” said public defender Kathryn Polonski.
A 2017 psychological evaluation showed French suffers from anxiety disorder, PTSD and depression, she said.
“Compounding this trauma is the experience he has had with the Cortez Police Department,” Polonsky said. “He has developed a personality toward the perception of an expectation of maltreatment by others. When unclear about a situation, he tends to become paranoid. He has difficulty relating to authority because of his trauma history.” In 2016, the French family filed a lawsuit against the Cortez Police Department alleging police entered the residence illegally and repeatedly tased French while he was in handcuffs.
In July, the city of Cortez agreed to pay $200,000 to the French family to settle the lawsuit against Cortez officers over the arrest. The city did not admit to any wrongdoing as part of the settlement.
