December 12, 2017

Archives for March 19, 2012

Colorado Court of Appeals: Clear the Bench Colorado Was a Political Committee Subject to Contribution Limits, Not an Issue Committee

The Colorado Court of Appeals issued its opinion in Colorado Ethics Watch, v. Clear the Bench Colorado on March 15, 2012.

Judicial Retention—Election Laws Violation—Issue Committee Versus Political Committee—Colorado Campaign Finance Law—Contribution Limits.

Colorado Ethics Watch brought this action alleging that Clear the Bench Colorado (CTBC), an organization that opposed the retention of the three justices of the Colorado Supreme Court who stood for retention in 2010, violated state election laws by registering as an issue committee rather than as a political committee. The administrative law judge’s holding that CTBC was a political committee was affirmed.

The issue in this appeal was whether a committee that supports or opposes the retention of a justice or judge constitutes an issue committee or a political committee for purposes of Colorado campaign finance law. The distinction is significant primarily because issue committees are not subject to contribution limits and political committees are. An issue committee is one that supports or opposes a ballot issue or ballot question; judicial retention is not a “ballot issue” or “ballot question” for purposes of campaign finance law; therefore, CTBC is not an issue committee. A political committee is one that supports or opposes the nomination or election of a candidate. Because a judge or justice standing for retention is a candidate in an election, CTBC is a political committee.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on March 15, 2012, can be found here.

Colorado Court of Appeals: Comments Made by Court During Voir Dire Were Misguided, But Did Not Constitute Reversible Error

The Colorado Court of Appeals issued its opinion in People v. Estes on March 15, 2012.

Voir Dire—Presumption of Innocence—Evidence—Testimony—Prosecutorial Misconduct.

Defendant appealed from the judgment entered on jury verdicts finding him guilty of felony menacing and assault in the third degree. The judgment was affirmed.

Defendant objected, for the first time on appeal, to the comments made by the trial court during voir dire. The trial court should have avoided any suggestion that defendant “did something.” Although the court explained that defendant may have done nothing illegal, its statements were confusing and could have suggested to prospective jurors that the court believed that the charges leveled against defendant were warranted. The court’s use of “we” also improperly aligned the court with the prosecution, implying that it found the evidence against defendant sufficient to justify his standing trial. Nonetheless, although the court’s explanation was confusing, it did not constitute reversible error, because it did not lessen the prosecution’s burden of proof or refute the presumption of innocence.

Defendant contended that the trial court erred in allowing testimony about the probability of finding missing guns in criminal cases. Evidence that the police rarely recover a missing gun in cases in which one is reported was offered to rebut defendant’s inference that the failure to recover a gun decreased the probability that he actually had possessed one. Therefore, the court did not abuse its discretion in admitting this evidence.

Defendant also made allegations of prosecutorial misconduct. The prosecutor did not impermissibly suggest in his opening statement that defendant had lied to the police; the prosecutor merely referred to the evidence to be adduced at trial and inferences from that evidence. It was not improper for the prosecution to discuss self-defense during closing argument, because the discussion referred to the strength and significance of the evidence. Although it was not proper for the prosecution, during closing argument, to tell the jury that defendant lost the presumption of innocence, the misconduct was not sufficiently prejudicial to undermine the confidence in the verdict, especially in light of the evidence in this case against defendant. Therefore, reversal was not warranted.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on March 15, 2012, can be found here.

Colorado Court of Appeals: Defendant May Be Convicted of Conspiracy to Commit Sexual Assault on a Child by Agreeing with Another to Commit the Crime, Regardless of Whether the Other Party Is an Undercover Police Officer Who Feigns Agreement

The Colorado Court of Appeals issued its opinion in People v. Vecellio on March 15, 2012.

Sexual Assault—Child—Position of Trust—Enticement—Conspiracy—Evidence—C.R.E. 404(b).

Defendant appealed the judgment of conviction entered on jury verdicts finding him guilty of conspiracy to commit sexual assault on a child by one in a position of trust; solicitation to commit sexual assault on a child by one in a position of trust; criminal attempt to commit sexual assault on a child; and enticement of a child. The judgment was affirmed.

Defendant, a police officer for the University of Colorado at Colorado Springs (UCCS), contacted “Karina” in an Internet chat room and expressed interest in having sex with her and her 13-year-old daughter, “Shayla.” In actuality, Karina was an undercover police officer.

Defendant contended that the evidence was insufficient to convict him of conspiracy to commit sexual assault on a child by one in a position of trust. Colorado’s conspiracy statute adopts the unilateral approach to conspiracy. Specifically, a defendant may be convicted of conspiracy by agreeing with another party to commit a crime, regardless of whether the other party is an undercover police officer who feigns agreement. Accordingly, the fact that defendant’s agreement was made with an undercover police officer does not, as a matter of law, preclude his conviction for conspiracy, and the evidence, including defendant’s conversations with Katrina to commit sexual assault on her 13-year-old daughter, driving to meet Katrina and Shayla, and purchasing condoms and beer for that purpose, was sufficient to support defendant’s conviction for conspiracy to commit sexual assault on a child by one in a position of trust. Additionally, as a result of these findings, the jury instructions on this issue were proper.

Defendant also contended that the evidence was insufficient to convict him of enticement of a child, because no child was involved in this case and because he never communicated with anyone pretending to be a child. A defendant may be convicted of enticement regardless of whether the victim is real, provided the defendant believed the victim was under 15 years of age and the other statutory elements are met. The fact that Shayla did not exist and that defendant never communicated with her directly does not preclude his conviction for enticement, and the evidence here was sufficient to uphold defendant’s conviction for enticement.

Defendant further contended that the trial court erred in permitting the prosecutor to ask him questions about his sexual interests that he posted on his Adult Friend Finder profile, prior sex acts, and employment history, because such evidence was inadmissible as improper character evidence. The evidence, however, did not implicate C.R.E. 404(b) and was admissible because it was relevant to rebut defendant’s theory of defense and was not unduly prejudicial.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on March 15, 2012, can be found here.

Colorado Court of Appeals: Defendant Waived Statutory Right to Be Advised of Possible Penalties Faced if Deferred Judgment Agreement Were to Be Revoked

The Colorado Court of Appeals issued its opinion in People v. Finney on March 15, 2012.

Deferred Judgment—Revocation—Due Process—Advisement—Sentence—Mitigating Evidence—Ineffective Assistance of Counsel.

Defendant appealed the revocation of his deferred judgment conviction. The judgment was affirmed.

In 2003, defendant was charged with three counts of class 3 felony sexual assault and three counts of class 4 felony sexual assault. Defendant entered into a deferred judgment, subsequently violated the conditions of the deferred judgment, waived any further advisement on revocation of the deferred judgment, and admitted to violating the deferred judgment. The trial court sentenced him on revocation of the deferred judgment and denied his post-conviction motions.

Defendant contended that the second judge’s denial of his post-conviction motions was error. Specifically, he argued that the Constitution’s Due Process Clause requires that the second judge advise him of the penalties he faced if the deferred judgment agreement were to be revoked. The Court of Appeals disagreed. Plea counsel, in defendant’s presence, waived defendant’s statutory right to be advised of the possible penalties defendant faced if the deferred judgment agreement were to be revoked. By its terms, Crim.P. 11 expressly applies to the entry of the guilty plea. Crim.P. 11 does not require the court to inform defendant of the possible penalties he could face when revoking the deferred judgment agreement in which he expressly waived a formal advisement and for which he repeatedly was informed of the potential penalties.

Defendant raised two contentions about the sentencing hearing. He argued that the fifth judge (1) denied him his right to offer mitigating evidence at the sentencing hearing when the court denied plea counsel’s motion to continue the hearing; and (2) ignored mitigating evidence when he imposed sentence. However, defendant did not demonstrate that he actually was prejudiced by the trial court’s decision to deny his request for a continuance. As a result, the fifth judge did not abuse his discretion when he denied that motion. Further, defendant did not raise the issue of mitigation before the trial court, so the Court declined to address that issue.

Defendant also argued that (1) the second judge unreasonably limited the evidence he could submit at the post-conviction hearing; and (2) plea counsel was ineffective in his representation of defendant during the deferred judgment revocation process. The Court disagreed. The trial court did not abuse its discretion by limiting the time in which defendant presented evidence on his allegation either that plea counsel was ineffective or that the court erroneously denied his motion to reconsider his sentence. Defendant had sufficient opportunity to present evidence in support of his post-conviction claims. Further, the record does not support a conclusion that there was a reasonable probability that, but for plea counsel’s alleged errors, defendant would not have confessed the motion to revoke his deferred judgment and would have insisted on having a hearing on the motion. Therefore, defendant was not prejudiced by plea counsel’s alleged deficient performance.

Defendant asserted, and the prosecution conceded, that the mittimus incorrectly stated that his sentence includes a mandatory three-year term of parole. Under CRS § 18-1.3-1006(1)(b), defendant’s conviction required a ten-year-to-life parole term. Thus, the case was remanded to correct the mittimus to reflect the proper parole term.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on March 15, 2012, can be found here.

Colorado Court of Appeals: Court Erroneously Admitted Evidence of Prior Acts that Were Dissimilar to Acts at Issue and Not Relevant to Prove Culpable Mental State Element of Child Abuse Resulting in Death

The Colorado Court of Appeals issued its opinion in People v. Casias on March 15, 2012.

Murder—Child Abuse—Other Acts Evidence—Mental State—Mistake—Accident.

Defendant appealed the judgments of conviction entered on jury verdicts finding him guilty of first-degree murder (causing the death of a child under the age of 12 by one in a position of trust) and knowing or reckless child abuse resulting in death. The judgments were reversed and the case was remanded for a new trial.

Defendant’s girlfriend left defendant at home with their 7-week-old baby, J.C., who died in defendant’s care. At trial, the People presented expert witnesses who opined that J.C. died as the result of non-accidental traumatic brain injury caused by being violently shaken or slammed against a hard surface. The jury convicted defendant as charged.

Defendant contended that the trial court erroneously admitted evidence that he had, on two previous occasions, mistreated his other daughter, A.C. The Court of Appeals agreed for two reasons. First, the prosecution offered evidence of defendant’s alleged past acts only to prove his mental state, but those acts (in anger, defendant slapped, shook, and roughly handled A.C.) did not result in serious injury or death to A.C. Second, those acts bear no resemblance to the acts he was alleged to have committed against J.C. Defendant was alleged to have injured J.C. by hitting her hand with a hairbrush, violently shaking her, and slamming her against a hard surface. Therefore, because of the dissimilarities between the acts against A.C. and the alleged acts against J.C., the acts against A.C. were not relevant to prove the culpable mental state element of child abuse resulting in death. Consequently, the trial court abused its discretion in admitting them for this purpose and to disprove defendant’s claim of mistake or accident. Because there was a reasonable probability that the admission of the other acts evidence contributed to defendant’s conviction, defendant’s convictions were reversed and the case was remanded for a new trial.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on March 15, 2012, can be found here.

Colorado Court of Appeals: Officers’ Ruse During “Knock and Talk” Was Intended to Get Occupant to Open Door, Not to Deceive into Giving Consent to Enter Apartment

The Colorado Court of Appeals issued its opinion in People v. Nelson on March 15, 2012.

Standing—Search—Resident—Motion to Suppress Evidence—Ruse—Probable Cause—Exigent Circumstances—Independent Source Exception—Exclusionary Rule.

Defendant Harvey Nelson appealed the judgment of conviction entered on jury verdicts finding him guilty of numerous illegal substance-related offenses. The case was remanded.

On January 27, 2006, police officers went to an apartment building after receiving a tip from an anonymous informant that narcotics distribution was occurring in one of the apartments. The officers knocked on the apartment door, and Nelson answered it. Another man inside the apartment attempted to flee the apartment by running out the back door. The officers recovered a glass pipe commonly used for smoking marijuana from a table inside the apartment and methamphetamine from the other man’s pockets.

The People contended that Nelson lacked standing to challenge the search because he was not an “overnight guest” and, after the entry and search began, he stated that he did not live there. However, undisputed facts adduced at the suppression hearing showed that Nelson was living in the apartment. Thus, he had standing to challenge the entry and search.

Nelson contended that the trial court erred in denying his motion to suppress evidence based on police officers’ unconstitutional entry and search of his residence. The officers testified that they wished to conduct a “knock and talk” investigation to seek consent to enter the apartment. Their ruse of claiming to be maintenance workers was intended only to get a person inside the apartment to open the door; it was not intended or used to deceive any person into giving consent to enter or search the apartment. Therefore, the officers’ ruse was permissible. Further, the officers’ subsequent entry into the apartment was justified by probable cause and exigent circumstances. The officers knew from a reliable informant that narcotics distribution was possibly taking place at the apartment and that a large quantity of methamphetamine was reportedly inside, and the officers personally observed the glass pipe and the other man fleeing before entering the apartment.

Nelson contended that, even if the initial entry into the apartment was constitutional, his girlfriend’s subsequent consent to search was invalid as to him. Because the evidence proved that Nelson lived there, the girlfriend’s consent to search was invalid in light of Nelson’s refusal to consent. The court ruled there was probable cause for issuance of the search warrant. However, the case was remanded to determine whether the independent source exception to the exclusionary rule permitted the recovery and use at trial of the items seized pursuant to issuance of the search warrant, despite the illegality of the consent search.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on March 15, 2012, can be found here.

Colorado Court of Appeals: Court Did Not Abuse Discretion by Using Offer of Proof in Lieu of Actual Evidence to Resolve Motion to Testify Via Closed-Circuit Television

The Colorado Court of Appeals issued its opinion in People v. Ujaamaon March 15, 2012.

Murder—Confrontation Rights—CRS § 16-10-402—Testimony—Attempted Concealment of Death.

Defendant appealed the judgments of conviction entered on jury verdicts finding him guilty of first-degree murder (after deliberation) and aggravated motor vehicle theft. The judgments were affirmed.

While defendant was living in Denver with his wife and his 6-year-old stepdaughter, I.R., wife began a romantic relationship with the victim, Timothy Kaufman. Defendant lured Kaufman to their home and shot him several times, killing him.

Defendant contended that the trial court violated his federal confrontation rights by allowing I.R. to testify via closed-circuit television without sufficient grounds to do so. CRS § 16-10-402 authorizes the use of closed-circuit television to obtain the live testimony of a witness who, at the time of a trial, is under 12 years of age and where the judge determines that testimony by the witness in the courtroom and in the presence of the defendant would result in the witness suffering serious emotional distress or trauma such that the witness would not be able to reasonably communicate. Here, the prosecution based its motion on the following offers of proof: defendant was I.R.’s stepfather; she observed him kill a person she knew; she had not seen defendant since the shooting; she had been in counseling for several months; and she would suffer serious emotional distress if forced to testify in front of defendant and would not be able to communicate what she witnessed. Under the circumstances, the trial court did not abuse its discretion in using an offer of proof in lieu of actual evidence to resolve the prosecution’s motion.

Defendant also contended that his aggravated motor vehicle theft conviction should be reversed because there was insufficient evidence that he committed the offense underlying that crime. Here, the charged underlying offense for aggravated motor vehicle theft was attempted concealment of a death. The prosecution presented evidence that after killing Kaufman, defendant wrapped the body in a rug, put it in the trunk of a car, drove the car to a different county, abandoned the car by the side of a road, and did not reveal the location of the car or body to the police when he turned himself in. This evidence was sufficient to allow the jury to conclude that defendant took a substantial step toward concealing Kaufman’s death.

Defendant raised seven other issues on appeal. However, those issues were not properly preserved for appellate review. The judgments of conviction were affirmed.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on March 15, 2012, can be found here.

SB 12-153: Creation of “Sunshine in Litigation Act”; Rebuttable Presumption Created that Information Must Be Disclosed in Court Action

On February 24, 2012, Sen. John Morse introduced SB 12-153 – Concerning the Creation of the “Sunshine in Litigation Act.” This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill creates a rebuttable presumption that information concerning a public hazard must be disclosed in a court action. The bill defines “public hazard” as any device, instrument, or product, or any condition of a device, instrument, or product that has caused injury to a person or his or her property and may foreseeably cause injury to one or more other persons in the future. A party objecting to the disclosure can seek a protective order to limit disclosure if the court finds, by clear and convincing evidence, that certain factors have been met, including that the information is not relevant to the public hazard and is not useful to members of the public in protecting themselves from injury resulting from the public hazard. The bill is assigned to the Judiciary Committee.

Summaries of other featured bills can be found here.

SB 12-151: Giving Permanent Authority to Parks and Wildlife Board to Set Fees for Use of Parks and Recreation Facilities

On February 20, 2012, Sen. Lois Tochtrop introduced SB 12-151 – Concerning the Authority of the Parks and Wildlife Board to Set Fees for the Use of Park and Outdoor Recreation Facilities and Programs. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill makes permanent the authority of the parks and wildlife board to set fees for the use of parks and outdoor recreation facilities and programs. The bill is assigned to the Agriculture, Natural Resources, and Energy Committee; it has not been calendared.

Summaries of other featured bills can be found here.

SB 12-148: Changing the Name of Metro State College of Denver to Metro State University of Denver

On February 8, 2012, Sen. Lucia Guzman and Rep. Crisanta Duran introduced SB 12-148 – Concerning Changing the Name of Metropolitan State College of Denver to Metropolitan State University of Denver. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill changes the name of Metropolitan State College of Denver to Metropolitan State University of Denver and makes conforming amendments. The bill has passed out of the Senate and has been assigned to the Education Committee. The bill is on the Education Committee calendar for Wednesday, March 14 upon adjournment.

Since this summary, the bill passed out of the Education Unamended and was referred to the House Committee of the Whole.

Summaries of other featured bills can be found here.

SB 12-147: Felony to Prevent or Dissuade Someone From Voting by Knowingly Making False Statements

On February 1, 2012, Sen. Irene Aguilar and Rep. Angela Williams introduced SB 12-147 – Concerning the Intent to Prevent a Person from Voting in an Election by Intentionally Communicating False Information. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill prohibits a person from intentionally communicating information that the person knows to be false regarding election procedures or voter eligibility, if the communication is made within 90 days before the election and with the intent to deter or prevent another person from voting. Violation of this prohibition is a class 5 felony. The attorney general is directed to promulgate rules to develop means by which the dissemination of such false information may be countered. After each general election, the attorney general must submit a report to the general assembly describing allegations of any such offenses in the prior 2 years. The bill passed the Senate on February 23 and has been assigned to the Judiciary Committee in the House. The bill is on the Judiciary Committee calendar on Tuesday, March 21 at 1:30 p.m.

Summaries of other featured bills can be found here.

Tenth Circuit: Unpublished Opinions, 3/16/12

On Friday, March 16, 2012, the Tenth Circuit Court of Appeals issued no published opinions and one unpublished opinion.

Unpublished

United States v. Young, Jr.

No case summaries are provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.