December 18, 2017

Archives for April 9, 2013

e-Legislative Report, 4/8/13

CBA Director of Legislative Relations Michael Valdez issued his weekly e-Legislative Report on April 8, 2013. In this issue, he discusses the actions of the CBA Legislative Policy Committee, some important bills at the Capitol, and 20 bills of interest (10 from each house).

CBA Legislative Policy Committee

For readers who are new to CBA legislative activity, the Legislative Policy Committee (LPC) is the CBA’s legislative policy-making arm during the legislative session. The LPC meets weekly during the legislative session to determine CBA positions on requests from the various sections and committees of the Bar Association.

The Legislative Policy Committee voted to support the Juvenile Law Section’s proposed amendments to SB 13-227. Concerning methods to protect the victim of a sexual assault in cases where a child was conceived as a result of the sexual assault.

The LPC also voted to support a House Joint Resolution, HJR 13-1019, concerning creation of an interim committee to study legal defense in juvenile justice proceedings, as recommended by the Juvenile Law Section.

At the Capitol

  • The Long Bill
  • The Long Bill continues its run as the biggest show in town. The House took its turn at amending and improving the bill last week. The Long bill a/k/a the Budget Bill, SB. 13-230 began the heavy part of its run in the House on Wednesday and finished up on Friday, April 5. At times, the floor debate became testy on 2nd and 3rd Reading in the House.
  • The budget fun should conclude by the end of the week; in the meantime we will get back to business as usual … bills, bills, bills.

For the complete e-Legislative Report, including the 20 bills of interest, click here.

Colorado Supreme Court: Practice of Referring to Prospective Jurors by Number Does Not Invalidate Conviction

The Colorado Supreme Court issued its opinions in Perez v. PeopleRizo v. People, and Robles v. People on Monday, April 8, 2013.

Anonymous Jury—Numbers Jury—Presumption of Innocence.

The Supreme Court affirmed the court of appeals’ judgment, which found that the practice of referring to prospective jurors by number did not invalidate defendant’s conviction. The Court held that the practice employed by the trial court did not warrant application of the federal anonymous jury test because no juror information was withheld from defendant. Further, the practice did not violate defendant’s right to a fair trial, including the presumption of innocence, because jurors had no reason to infer anything negative about defendant.

Summary and full case available here.

Colorado Supreme Court: Defendant’s Miranda Waiver Effectively Waived his Right to Counsel Under the Fifth and Sixth Amendments

The Colorado Supreme Court issued its opinion in People v. Luna-Solis on Monday, April 8, 2013.

Interlocutory Appeal—Discovery Violations—Suppression.

The People filed an interlocutory appeal pursuant to CRS § 16-12-102(2) and CAR 4.1, as well as a petition pursuant to CAR 21, seeking relief from a district court order suppressing statements made by defendant and excluding DNA evidence. Although the district court found that the statements in question were voluntary and were made after an effective waiver of Miranda rights, it suppressed them on the ground that the Sixth Amendment barred the Denver police from questioning defendant about this ongoing Arapahoe County prosecution unless his counsel in the case were present. The district court also excluded DNA evidence collected by the Denver police in the execution of a Crim.P. 41.1 order of the Denver County Court, on the ground that they sought the order, at least in part, for the benefit of the prosecution in this case.

The Supreme Court reversed, holding that because defendant’s Miranda waiver effectively waived his right to counsel as guaranteed by the Fifth and Sixth Amendments, the district court erred in suppressing statements as a violation of defendant’s Sixth Amendment right to counsel. Furthermore, because Crim.P 16 II imposes disclosure obligations on criminal defendants without simultaneously barring the use of evidence acquired through otherwise lawful investigation, the district court erred in finding a discovery violation and excluding DNA evidence.

Summary and full case available here.

Colorado Supreme Court: Suppression of Statements was Error Because Defendant Not Subject to Custodial Interrogation

The Colorado Supreme Court issued its opinion in People v. Barraza on Monday, April 8, 2013.

Criminal Law—Fifth Amendment—Suppression of Evidence and Statements—Custodial Interrogation—Miranda Advisement.

In this interlocutory appeal, the Supreme Court considered whether the district court erred in suppressing evidence and statements defendant made to law enforcement officers. The district court concluded that the officers were required to administer a Miranda warning to defendant before police questioning that occurred on the driveway outside his home, and that failure to give the advisement required suppression of two sets of statements defendant made to the police. The second set of statements made at the police station followed the Miranda advisement; however, the trial court ruled those statements were fruit of the poisonous tree because defendant received no Mirandawarning before making the first set of statements outside his home.

The Court reversed the district court’s suppression order. Defendant was not subject to custodial interrogation at the time he made the statements at his home, so it was error to suppress both sets of statements.

Summary and full case available here.

Tenth Circuit: Defendant’s Conviction of Conspiracy to Possess with Intent to Distribute Cocaine Affirmed

The Tenth Circuit published its opinion in United States v. Patterson on Friday, April 5, 2013.

The events that gave rise to Adrian Patterson’s indictment stem from a Drug Enforcement Administration (DEA) investigation into whether Bernard Redd was distributing cocaine in Wichita, Kansas. A substantial portion of the evidence presented against the co-conspirators was obtained through wiretaps of their telephone conversations, which was presented at trial. Patterson was convicted by jury trial of a number of drug charges, including conspiracy to possess with intent to distribute five kilograms or more of cocaine.

On appeal, Patterson raised a number of challenges to his conviction and sentence. He contended:

(1) The district court erred in denying his request for a pretrial hearing to determine his competency to stand trial.

A defendant’s right to a competency hearing is governed in part by 18 U.S.C. § 4241(a), which requires a district court to grant a motion for a hearing in limited circumstances. These include “if there is  reasonable cause to believe that the defendant may presently be suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense. Based on the district court’s observations of Patterson, the Tenth Circuit held the district court did not abuse its discretion in denying his request for a competency hearing.

(2) The evidence offered by the government was insufficient to support his conviction and to provide a basis for the admission of testimony under the coconspirator exception to the hearsay rule.

The Tenth Circuit found that the district court’s factual finding as to the existence of a conspiracy was not clearly erroneous. Further, in the light most favorable to the government, a rational juror could draw the conclusion from the evidence that Patterson was involved in a conspiracy to distribute cocaine.

(3) His Sixth Amendment rights under the Confrontation Clause were violated when hearsay testimony linking him to the conspiracy was introduced at trial.

Patterson argued that the admission of hearsay testimony violated principles established by the Supreme Court in Crawford v. Washington, 541 U.S. 36 (2004), and Bruton v. United States, 391 U.S. 123 (1968). The Court held that the admission of statements violated neither Crawford nor Bruton because both statements were made in furtherance of a conspiracy and were therefore nontestimonial.

(4) The district court improperly instructed the jury.

The district court made statements about its schedule. Patterson argued the statements exerted undue coercion on the jury. The Tenth Circuit held Patterson’s interpretation of the comments as coercive had no basis in the record or in the law. The district court did not plainly err in its interaction with the jury over scheduling matters.

(5) The district court’s finding at sentencing that he was responsible for the distribution of fifteen kilos of cocaine is clearly erroneous.

Patterson next challenged the district court’s factual finding at sentencing that he was responsible for distributing fifteen kilograms of cocaine. The Tenth Circuit found Patterson did not meet his burden of showing clear error. The testimony supported a finding that up to sixty kilograms of cocaine was actually or intended to be distributed during the conspiracy.

(6) The indictment was insufficiently specific as to the counts charged against him.  

The two principal criteria by which the sufficiency of an indictment is assessed are “first, whether the indictment contains the elements of the offense intended to be charged, and sufficiently apprises the defendant of what he must be prepared to meet, and, secondly, in case any other proceedings are taken against him for a similar offense[,] whether the record shows with accuracy to what extent he may plead a former acquittal or conviction.” United States v. Washington, 653 F.3d 1251, 1259 (10th Cir. 2011).

Based on this standard, the Tenth Circuit found no error.

(7) The district court erred in failing to exclude evidence obtained in violation of his Fourth Amendment rights.

Patterson’s last claim is that the district court erred in not granting his motion to suppress evidence obtained from the government’s alleged illegal use of cell site location information. By failing to develop any argument on this claim in the Tenth Circuit, Patterson waived this claim.

AFFIRMED.

Tenth Circuit: Unpublished Opinions, 4/8/13

On Monday, April 8, 2013, the Tenth Circuit Court of Appeals issued two published opinions and three unpublished opinions.

United States v. Kaiser

Smith v. McKune

Self v. Milyard

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