2 weeks Ago By Michael Karlik [email protected]
A man serving 28 years for child abuse will receive a new trial, Colorado's second-highest court ruled on Thursday, because the defense attorney overrode his client's wishes and told the jury the defendant was guilty in the overdose death of his son. After a mistrial, a second trial resulted in jurors convicting Joenny Manuel Astacio of reckless child abuse resulting in death. The evidence established Astacio was using fentanyl with a friend while his child's mother, Kira Lee Davison, was upstairs with their toddler.
Although Astacio reportedly checked on Davison and the child repeatedly, he woke her up at one point to say the child was "not OK." Astacio admitted to "basically doing fentanyl all night downstairs" but that he and Davison "had kinda made a rule" that neither of them would smoke fentanyl in the same room as Cairo, their son. Cairo died of fentanyl exposure and prosecutors charged both Astacio and Davison for his death.
They stood trial together and jurors found them guilty in March 2023. Both received lengthy prison sentences. On appeal, Astacio claimed his defense lawyer had violated his constitutional rights by arguing to the jury that Astacio was guilty of a lesser child abuse offense, over Astacio's objection.
Between the mistrial and the second trial, Astacio's attorney alerted District Court Judge Laura N. Findorff that there was a dispute between him and his client over whether to concede that Astacio committed the lesser offense of negligent child abuse, rather than the more severe charge of reckless child abuse — which requires disregarding a known risk. Astacio "wishes to run a complete 'he did nothing wrong' defense," the attorney said, adding he believed such a move would amount to constitutionally unreasonable performance on his part.
Astacio advised Findorff his lawyer was "telling me that I had knowledge of what was going on" at the time of Cairo's death. "I'm telling him, 'No, I did not have knowledge.'" Findorff concluded the defense attorney was allowed to proceed with his plan as a trial strategy.
Consequently, the attorney told jurors that: • "We're arguing negligence" • "My client was negligent" • "He was part of this situation where (Cairo) died" • "That is negligence, ladies and gentlemen. And that's what Mr. Astacio is guilty of" Decided: January 30, 2025 Jurisdiction: El Paso County Ruling: 3-0 Judges: Christina F.
Gomez (author) Terry Fox Katharine E. Lum In arguing his appeal, Astacio leaned on a 2018 Supreme Court decision, McCoy v. Louisiana .
A defense attorney told jurors, over his client's objection, that the defendant killed the victims. The lawyer did so in an attempt to save his client from receiving the death penalty. The Supreme Court's majority concluded the choice to maintain innocence belongs to the defendant alone.
A three-judge Court of Appeals panel agreed Astacio's case was very similar to McCoy and, as a result, the defense lawyer should not have been permitted to concede guilt. "Regardless of how weak defense counsel may have believed such a defense would be, asserting that defense was Astacio’s choice to make," wrote Judge Christina F. Gomez in the Jan.
30 opinion . "Following McCoy , other courts have held that the right to autonomy is violated when defense counsel concedes a lesser offense despite the defendant’s desire to maintain innocence." The panel ordered a new trial for the child abuse charge.
It upheld Astacio's two drug possession convictions because there was no indication he wished to maintain his innocence for those. The case is People v. Astacio.
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