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Colorado Court of Appeals: Jury Polling Regarding Perceived Inconsistent Verdicts Exceeded Bounds of C.R.E. 606(b) and Called Fundamental Fairness of Trial into Question

May 2, 2011 By 2 Comments

The Colorado Court of Appeals issued its opinion in People v. Juarez on April 29, 2011.

Vehicular Homicide—Driving Under the Influence—Driving While Ability Impaired—Careless Driving—Jury Verdict—Polling—C.RE. 606(b).

Defendant Benito Juarez appealed the judgment of conviction entered on jury verdicts finding him guilty of vehicular homicide, driving under the influence (DUI), and careless driving. The judgment was reversed and the case was remanded for new trial.

After deliberation, the jury returned verdicts finding Juarez guilty of vehicular homicide, careless driving, and driving while ability impaired (DWAI). The district court, on its own initiative, determined that the verdicts finding Juarez guilty of vehicular homicide and DWAI were “inconsistent.” The district court reasoned that to be guilty of vehicular homicide, a defendant must be found guilty of DUI. The district court then polled and questioned the jury to ascertain the reason for the inconsistent verdicts. After the court’s questioning, the district court provided the jury with written and oral supplemental instructions and directed the jury to resume deliberations. Subsequently, the jury returned a second set of verdicts, finding Juarez guilty of vehicular homicide, DUI, and careless driving.

Juarez contended that the district court should have granted his motion for a directed verdict because the initial jury verdicts were inconsistent. An inconsistency in the first verdicts did not necessarily render the entire verdict unenforceable. However, the lack of unanimity did.

Juarez contended that the manner in which the district court polled the jury created reversible error. Extensive or coercive questioning of the jurors regarding their deliberative process is improper even if the district court perceives jury confusion regarding the applicable law. Here, the jury shared its mental processes only after the district court continued to probe. Moreover, the court itself may have influenced the jury’s second set of verdicts. Therefore, the manner in which the district court polled Juarez’s jury regarding the perceived inconsistent verdicts exceeded the bounds of C.R.E. 606(b). Accordingly, the fundamental fairness of the trial itself was called into question, the judgment of conviction was reversed, and the case was remanded for a new trial.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on April 29, 2011, can be found here.

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Colorado Court of Appeals: Blood Evidence Admissible Because Private Lab Authorized Under Law and by Expert Testimony; Confrontation Clause Not Violated Because Defendant Did Not Request Presence of Lab Technician at Trial

May 2, 2011 By Leave a Comment

The Colorado Court of Appeals issued its opinion in People v. Martinez, Jr. on April 29, 2011.

Driving Under the Influence—Criminalistics Laboratory—Blood Samples—Evidence—Right to Confrontation—Sentence.

Defendant appealed the judgment of conviction on one count of vehicular homicide—driving under the influence (DUI), as well as the eight-year sentence to the Department of Corrections (DOC) imposed on his conviction. The judgment and sentence were affirmed.

On appeal, defendant contended that the trial court erred in admitting exhibits 12 and 13, Chematox’s laboratory reports for the two blood kits containing defendant’s samples, because they were prepared by a private laboratory. However, CRS § 16-3-309(5) applies to both state-run and private criminalistics laboratories. Additionally, Chematox’s employee, who was qualified without objection as an expert in forensic toxicology, established that Chematox was a “certified laboratory” pursuant to the regulations of the Colorado Department of Health and Environment.

Defendant also contended that admission of Exhibits 12 and 13 violated his right to confrontation because the laboratory technician who performed the tests did not testify. Defendant received notice in discovery that the prosecution intended to introduce the Chematox’s laboratory reports for the two blood kits containing defendant’s samples. Defendant failed to request the laboratory technician’s presence at trial, which was his burden pursuant to § 16-3-309(5). Therefore, the court did not err in admitting Exhibits 12 and 13.

Defendant further contended that the trial court erred in sentencing him to eight years in the custody of the DOC with five years’ mandatory parole. Contrary to his assertion, however, ample evidence in the record indicated that the court considered defendant’s youth, criminal history, and time confined to the state hospital. Because the sentence imposed was within the range required by law, based on appropriate considerations as reflected in the record, and factually supported by the circumstances of the case, the sentence did not constitute an abuse of discretion.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on April 29, 2011, can be found here.

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Colorado Court of Appeals: Juror’s Inability to Sit for Long Periods of Time Not Grounds to Challenge for Cause

May 2, 2011 By Leave a Comment

The Colorado Court of Appeals issued its opinion in People v. Coughlin on April 29, 2011.

Challenge for Cause—Due Process—Plea Agreement—Testimony—Jury Instructions—Witness Felony Convictions—Doctrine of No Retreat.

Defendant appealed the judgment of conviction entered on jury verdicts finding him guilty of attempted second-degree murder, second-degree assault, and fighting in public. The judgment was affirmed.

The charges in this case arose from a physical altercation that occurred in the parking lot of a sports bar. A fight broke out between defendant and P.S., one of the bar’s bouncers, resulting in P.S. tackling defendant to the ground. P.S. repeatedly punched defendant in the face, and defendant stabbed P.S. multiple times with a knife—once in his neck, three times in his back, and once in his arm.

Defendant contended that the trial court abused its discretion by denying his challenge for cause to prospective juror D. Juror D expressed an inability to follow the evidence and a difficulty sitting down for “a couple of days at a time.” However, defendant only objected based on Juror D’s claim that he was unable to sit for long periods of time. Because Juror D did not elaborate to explain any physical disability to the court, it did not err in denying the challenge for cause.

Defendant also contended that the trial court violated his rights to due process and a fair trial. He argued that the court reversibly erred by allowing the prosecutor to elicit the terms of the friend’s plea agreement on direct and redirect examination, because the questioning of the friend constituted improper vouching. The prosecutor neither expressed a personal opinion about the friend’s credibility nor appeared to possess information unavailable to the jury. Accordingly, the court did not abuse its discretion by admitting this testimony during direct examination.

Defendant further contended that his convictions must be reversed because the court failed to give the stock jury instruction regarding consideration of a witness’s felony convictions. Although the court refused to tender the jury instruction, there is not a reasonable probability that the court’s instructional omission contributed to defendant’s convictions where defense counsel declined the court’s repeated invitation to argue the stock instruction during closing argument and where neither party made reference to the friend’s plea agreement or prior felony convictions during closing argument. Accordingly, reversal was not required.

Defendant argued that his convictions must be reversed because the court failed to give sua sponte a jury instruction on the limited permissible use of the friend’s guilty plea. Defendant failed to request such an instruction. This failure did not place a duty on the trial court to give one sua sponte. Accordingly, reversal was not required.

Defendant argued that the court reversibly erred by refusing to give his tendered instruction on the doctrine of no-retreat. The trial court gave a self-defense instruction but refused defendant’s request to give an additional instruction on the doctrine of no-retreat. Because the facts and arguments in this case did not raise the issue of retreat, the court did not err by refusing to give defendant’s tendered no-retreat instruction.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on April 29, 2011, can be found here.

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Colorado Court of Appeals: Withdrawal of Guilty Pleas Requires Fair and Just Reason Showing Denial Would Subvert Justice; Court Appropriately Classified Defendant as Sex Offender

May 2, 2011 By Leave a Comment

The Colorado Court of Appeals issued its opinion in People v. Boling on April 29, 2011.

Sex Offender—Withdrawal of Guilty Plea.

Defendant appealed the trial court’s orders denying his motion to withdraw his guilty pleas and classifying him as a sex offender. The orders were affirmed.

As part of a plea agreement, defendant pleaded guilty to theft and menacing. Prior to sentencing, defendant moved to withdraw his guilty pleas. The trial court denied the motion and proceeded to sentencing. Over defendant’s objection, the court determined that defendant was a sex offender, ordered a sex offender evaluation, and ordered sex offender treatment and supervision as a condition of probation. Defendant appealed.

Defendant argued it was error to deny his motion to withdraw his guilty pleas. The Court of Appeals disagreed. A plea can be withdrawn “if a defendant makes a showing that denial of the request will subvert justice.” The defendant has the burden to show a fair and just reason for withdrawal of a plea. Here, defendant asserted ineffective assistance of counsel. The trial court appointed alternate defense counsel to pursue defendant’s claims, after which counsel informed the trial court there was no legal basis for withdrawal. The Court noted that in the plea documents and transcript of the providency hearing, defendant expressed complete satisfaction with counsel’s representation. Accordingly, the trial court did not abuse its discretion in denying defendant’s motion.

Defendant also argued it was error for the trial court to determine he is a sex offender. The probation department requested a sex offender evaluation because defendant had a prior deferred sentence for sexual assault on a child. Defendant objected, contending it was a juvenile adjudication resulting in a deferred sentence that was successfully completed and dismissed, so there was no underlying conviction that would trigger the controlling statute. He argued that CRS § 16-11.7-102(2)(a)(IV) was the applicable provision and that it expressly applies only to adjudications dated on or after July 1, 2002. His adjudication occurred in 1989. The Court disagreed, holding that defendant is a sex offender under CRS § 16-11.7-102(2)(a)(II) based on his commission of the instant offense after July 1, 1994 in conjunction with his history of a sex offense. Accordingly, there was no error. The judgment was affirmed.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on April 29, 2011, can be found here.

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Colorado Court of Appeals: Amendment 42, Regarding Minimum Wage, Not Unconstitutionally Vague and Use of Denver-Boulder-Greely Consumer Price Index Was Appropriate

May 2, 2011 By Leave a Comment

The Colorado Court of Appeals issued its opinion in Table Services, LTD v. Hickenlooper on April 29, 2011.

Minimum Wage—Inflation—Constitutionality of Amendment 42.

Plaintiffs appealed the district court’s judgment dismissing their challenge to the constitutionality of Amendment 42 (Amendment). The judgment was affirmed.

Plaintiffs are owners and operators of restaurants and hotels primarily located in smaller cities and towns in rural areas of Colorado. They are required to abide by minimum wage laws and the minimum wage established by the Amendment. Defendants are charged with enforcing minimum wage laws.

The Amendment was enacted by Colorado voters in November 2006 for the purpose of raising the minimum hourly wage in Colorado from $5.15 to $6.85, and requiring thereafter an annual adjustment to the minimum wage based on inflation. In August 2008, plaintiffs filed a complaint challenging the constitutionality of the inflation adjustment provision. The district court dismissed the complaint under C.R.C.P. 12(b)(5) for failure to state a claim on which relief may be granted. On appeal, defendants argued that this was error because the Amendment is void for vagueness and the Colorado Department of Labor and Employment, Division of Labor (DOL), exceeded its authority in applying the Denver–Boulder–Greely consumer price index (DBG–CPI) to calculate the annual minimum wage for Colorado.

The Amendment uses the phrase “the Consumer Price Index used for Colorado.” Plaintiffs argued this does not create or identify a measurable standard by which to adjust the minimum wage and therefore is incapable of being fairly and properly applied. The Court of Appeals construed this as a facial challenge to the Amendment. In a void for vagueness challenge, the constitutional provision is presumed valid and plaintiffs must prove their case beyond a reasonable doubt. Every reasonable presumption is to be indulged in favor of a constitutional amendment that the people have adopted at a general election.

The Court agreed with the district court that the phrase at issue was not “impermissibly vague in all of its applications.” The Amendment and its enabling legislation directs the DOL to annually adjust the minimum wage for inflation by the CPI “used for Colorado.” This is sufficiently specific to direct the DOL to determine which CPI is representative of the degree of inflation for Colorado.

Plaintiffs also argued that the DOL exceeded its authority and acted in an arbitrary and capricious manner in applying the DBG–CPI in its annual minimum wage calculation. The Court disagreed. Under the Colorado Administrative Procedure Act, a court may reverse an administrative decision only if the court finds that the “agency exceeded its constitutional or statutory authority, made an erroneous interpretation of law, acted in an arbitrary and capricious manner, or made a determination that is unsupported by the evidence in the record.” For similar reasons as noted regarding the void for vagueness challenge, the Court found that the DOL did not exceed its authority or act arbitrarily or capriciously in using the DBG–CPI.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on April 29, 2011, can be found here.

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Colorado Court of Appeals: When State Seeks to Award Custody of Child to Other People Instead of Terminating Parental Rights, a Parent Has No Due Process Right to Counsel

May 2, 2011 By Leave a Comment

The Colorado Court of Appeals issued its opinion in People In the Interest of L.B. and Concerning R.B. on April 29, 2011.

Dependency and Neglect—Ineffective Assistance of Counsel.

In this dependency and neglect (D&N) action, mother appealed from the judgment allocating sole physical custody and decision-making responsibility for her child, L.B., jointly to the child’s father and his parents. The judgment was affirmed.

When L.B. was born in 2002, mother and father were married. They separated in April 2009 and a dissolution action was commenced. Lake County Health and Human Services (Department) opened a voluntary D&N case after receiving reports of domestic violence between mother, who had custody, and her ex-boyfriend. Both parents complied with the voluntary treatment plan and L.B. remained with mother.

In September 2009, the Department filed a D&N petition based on concerns that mother had physically abused L.B. and a report that L.B. had displayed sexualized behavior. Father became L.B.’s primary caretaker and mother received supervised visitation. Father and mother entered no-fault admissions to the petition and the court adjudicated L.B. dependent and neglected and approved treatment plans for both parents.

In January 2010, the marriage was dissolved. The Department moved for temporary legal custody and the court authorized L.B.’s admission to a residential program. In September 2010, the court held a contested permanency planning hearing to allocate parental responsibilities. The court awarded sole physical custody and decision-making authority to father and his parents and allowed mother supervised parenting time every other week.

On appeal, mother argued that she had received ineffective assistance of counsel and that the Court of Appeals should remand the case for further proceedings. The Court held that mother has no right to such relief. As an indigent parent, she had a statutory right to court-appointed counsel at every stage of the D&N proceeding. Where, as here, the state seeks only to award custody of a child to other people instead of terminating parental rights, a parent has no due process right to counsel, because the parent maintains many rights, including the right to petition to regain custody or increase parenting time. Thus, because the right to counsel here is purely statutory, it does not give rise to an ineffective assistance of counsel claim.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on April 29, 2011, can be found here.

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Colorado Court of Appeals: Defendants Who Are Not Guilty by Reason of Insanity Still Required to Register as Sex Offenders

May 2, 2011 By Leave a Comment

The Colorado Court of Appeals issued its opinion in People v. Durapau on April 29, 2011.

Sexual Assault—Not Guilty by Reason of Insanity—Registration as Sex Offender—Jurisdiction—Constitutional Rights.

Defendant appealed the district court’s order requiring him to register as a sex offender under CRS § 16-8-115(4)(a). The order was affirmed.

Defendant was charged with first-degree sexual assault. Pursuant to a plea agreement in 1999, the district court found defendant not guilty by reason of insanity (NGRI), and he was committed to the Colorado Mental Health Institute at Pueblo (CMHIP). In 2005, the court granted defendant community placement pursuant to CMHIP’s recommendation. That same year, the Colorado General Assembly amended both the temporary removal and release from commitment statutes by replacing the word “may” with “shall,” thereby requiring NGRI defendants who committed offenses involving unlawful sexual behavior to register as sex offenders. In 2006, the court granted defendant conditional release from CMHIP and ordered sex offender registration as a condition of release.

Defendant argued that (1) the court lacked jurisdiction to impose registration because no such requirement existed when he entered his plea; and (2) it violated his constitutional rights. By including the mandatory word “shall,” the General Assembly clearly evinced its intent that all NGRI offenders who have pleaded to an offense involving unlawful sexual behavior be required to register as a condition of release. Because defendant pleaded NGRI to an offense involving unlawful sexual behavior, and he was granted conditional release from CMHIP after amended CRS § 16-8-115(4)(a) was effective, the court was statutorily required to impose registration as a condition of release. Further, registration is remedial, not punitive, and therefore does not unconstitutionally enhance punishment. Therefore, applying the sex offender registration requirement of § 16-8-115(4)(a) to defendant, who pleaded NGRI and was found NGRI to an offense involving unlawful sexual behavior prior to the section’s amendment requiring registration, does not violate his constitutional rights.

Defendant also contended that his case should be remanded to the district court for a hearing to allow him to withdraw his guilty plea because he was not advised of the registration requirement. However, there was no final appealable order on this issue and the Court of Appeals lacked jurisdiction to consider this issue.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on April 29, 2011, can be found here.

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Colorado Court of Appeals: Insufficient Evidence of Complicity and Improper Jury Instructions for Lesser-Included Offenses Causes Court to Reverse (in part), Vacate (in part), and Remand

May 2, 2011 By Leave a Comment

The Colorado Court of Appeals issued its opinion in People v. Duran on April 29, 2011.

First-Degree IndifferenceMurder—Reckless Manslaughter—Evidence—Principal—Complicitor—Lesser-Included Offense—Jury Instructions.

Defendant Dominic Dale Duran appealed the judgment of conviction entered on jury verdicts finding him guilty of attempted first-degree extreme indifference murder and reckless manslaughter. The judgment was vacated in part and reversed in part, and the case was remanded.

Defendant drove himself, Angelo Montoya, and two others to a party. A fight broke out, Montoya brandished a gun, and defendant and his friends fled from the house. At defendant’s joint trial with Montoya, the prosecution presented evidence that Montoya’s weapon held ten bullets, that Montoya shot five bullets at the house while running in the yard (first round), and that either Montoya or defendant shot five bullets from Montoya’s gun toward the house from defendant’s car as they drove from the scene (second round). A bullet struck the victim, who was in the house, killing her.

Defendant contended that the evidence was insufficient to support a determination by the jury that he was liable either as a principal or as a complicitor for recklessly causing the death of the victim. The People’s theories are based on surmise, speculation, or conjecture about the victim’s actions during the shooting; they are not supported by the evidence or reasonable inferences from it. Therefore, the evidence was insufficient to support a conclusion by the jury that a bullet from the second group of gunshots, which indisputably occurred after the victim was on the floor, caused her death. Further, there was no evidence that defendant aided, abetted, advised, or encouraged Montoya when he fired the first group of gunshots at the house. Accordingly, defendant could not be convicted of reckless manslaughter either as a principal or complicitor (assuming he drove his car while Montoya fired the shots) for the second group of shots.

Defendant also contended that there was insufficient evidence to support the jury’s verdict finding him guilty of attempted first-degree extreme indifference murder. There was sufficient evidence that defendant fired the second group of five gunshots from the car at the house, which was filled with people, as he and Montoya sped away. This supports a determination that defendant took a substantial step toward causing the death of the victim and supports the jury’s guilty verdict for attempted extreme indifference murder of the victim.

Defendant claimed the trial court erred by instructing the jury on the crime of attempted extreme indifference murder as a lesser-included offense. He argued that the instruction constituted a constructive amendment of the indictment. As a matter of law, a defendant has adequate notice of an uncharged offense that meets the definition of a lesser-included offense. Here, attempted first-degree extreme indifference murder is a lesser-included offense of extreme indifference murder, which was contained in the indictment. Accordingly, the trial court committed no error by instructing the jury on the attempt crime as a lesser-included offense.

Defendant claimed the trial court also erred by instructing the jury to consider completed and attempted reckless manslaughter of the named victim as lesser-non-included offenses of completed and attempted first-degree extreme indifference murder. Reckless manslaughter is a lesser-included offense of first-degree extreme indifference murder, and attempt to commit reckless manslaughter is a lesser-included offense of attempt to commit first-degree extreme indifference murder. Therefore, instructing the jury on reckless manslaughter and attempt to commit reckless manslaughter as non-included offenses was error.

Defendant argued that the trial court erred by using the terms “justified” and “justifiably” in the self-defense instruction by instructing the jury that it “may” consider self-defense, and by instructing the jury on the provocation and initial aggressor concepts of self-defense law. The language of the instruction substantially mirrors the language of the statute and informed the jury that defendant’s belief must have been reasonable. Therefore, there was no error.

The judgment of conviction for reckless manslaughter was vacated and the judgment of conviction for attempted first-degree extreme indifference murder was reversed. The case was remanded for a new trial on the attempted murder charge.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on April 29, 2011, can be found here.

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Tenth Circuit: Opinions, 4/29/11

May 2, 2011 By Leave a Comment

The Tenth Circuit on Friday issued two published opinions and nine unpublished opinions.

Published

In United States v. Harrell, the Court affirmed the district court’s decision. In eminent domain proceedings, Petitioners claimed they were the “prevailing party,” as defined by the Equal Access to Justice Act (EAJA). The district court disagreed even though Petitioners were awarded $3.8 million, and denied their request for $2 million in attorney fees. The Court agreed with the district court by reviewing the issue under the necessary strict construction of the EAJA; the statute must be strictly construed when considering “under what circumstances Congress was willing to require the government to pay the attorney’s fees of other parties” under the “mathematical prevailing party standard” set out in the EAJA. The Court held that the district court’s “$3.8 million judgment in favor of appellants was closer to the highest valuation testified to by the government’s expert, $186,500, than to the highest valuation testified to by [Petitioners]’ expert, $33 million, and that [Petitioners] therefore were not the prevailing party” entitled to attorney fees.

In Efagene v. Holder, Jr., the Court reversed the Board of Immigration Appeals’ (BIA) decision. Petitioner, a citizen of Nigeria, has been a lawful United States resident since 1991. In 2005, Petitioner pleaded guilty to misdemeanor sexual conduct-no consent and was sentenced to 364 days’ imprisonment, and ordered to register as a sex offender for the next ten years. In 2007, Petitioner failed to meet a registration deadline and was arrested. He pleaded guilty to a misdemeanor failure-to-register offense, and was sentenced to thirty days’ imprisonment and a $100 fine. He now petitions for review of a final order of removal issued by the BIA, arguing that “the BIA erred in concluding that the Colorado misdemeanor offense of failure to register as a sex offender constitutes a crime involving moral turpitude under the Immigration and Nationality Act.” The Court agreed, refusing to find Petitioner’s failure to register as a sex offender as a crime involving moral turpitude. “Colorado’s own courts have described the sex offender registry statute at issue here as regulatory in nature. . . . While there is no question a sex offense itself often involves serious harm to the victim and constitutes a depraved act, an individual can be convicted of failure to register if he, for example, changes residences and notifies law enforcement six rather than five business days later.” Failure to register within the appropriate time does not rise to the level of moral turpitude, but rather is a violation of a regulatory requirement designed to aid law enforcement.

Unpublished

Henshaw v. Wayne County

Johnson v. Kansas Parole Board

United States v. Thompson

United States v. Chacon

United States v. Garcia-Ruiz

United States v. Roe

United State v. Lockhart

United States v. Smith

Novell, Inc. v. Vigilant Ins. Co.

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