December 12, 2017

Archives for September 29, 2014

Colorado Court of Appeals: Vehicle Need Not Move to Be “Operated” or “Driven” for DUI Purposes

The Colorado Court of Appeals issued its opinion in People v. Valdez on Thursday, September 25, 2014.

Aggravated Driving After Revocation Prohibited—Driving Under the Influence—Merger.

A witness driving in Pueblo observed a vehicle parked along the curb at an intersection. Concerned, he stopped and discovered Valdez passed out and unresponsive in the driver’s seat. He contacted law enforcement officials, who observed Valdez in a stupor with a twenty-four-ounce can of beer between his legs, and his feet near the gas and brake pedals. They also found his keys in the ignition. When they arrested Valdez, he slurred his speech and drifted in and out of consciousness. At one point, he attempted to start the vehicle, but the officers restrained him. They eventually removed him from the vehicle. At the time of the arrest, Valdez’s driver’s license had been revoked because he was a habitual traffic offender. He was convicted of aggravated driving after revocation prohibited (ADARP) and driving under the influence (DUI).

On appeal, Valdez contended that the trial court erred in denying his motions for judgment of acquittal on both charges because the prosecution failed to prove beyond a reasonable doubt that he “operated” or “drove” an “operable” motor vehicle. The term “drive” means to exercise “actual physical control” over a motor vehicle. Further, the prosecution was not required to prove the operability of the vehicle beyond a reasonable doubt. Here, although the vehicle may have been inoperable at the time the police arrived, there was sufficient evidence that Valdez drove the vehicle to the intersection before he passed out, and his action of attempting to start the vehicle when the police arrived further proved that he had physical control of the vehicle. Accordingly, the trial court did not err in denying Valdez’s motions for a judgment of acquittal, nor was it required to provide an instruction to the jury to determine, beyond a reasonable doubt, the operability of the vehicle at issue.

Valdez also argued that the trial court erred by not merging his ADARP and DUI convictions because DUI is a lesser included offense of ADARP. The law is presently unsettled on this issue. Therefore, the trial court did not commit plain error in upholding the jury’s separate convictions for Valdez’s DUI and ADARP offenses, and for imposing separate sentences for those crimes. The judgment was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer

Colorado Court of Appeals: Defendant Need Not Be Same Race as Excused Juror to Make Batson Challenge

The Colorado Court of Appeals issued its opinion in People v. Friend on Thursday, September 25, 2014.

Child Abuse—Murder—Batson Challenge—Jurors—Challenge for Cause—Expert Testimony—Merger.

M.B., the 12-year-old daughter of defendant’s girlfriend, C.H., was declared brain dead and taken off life support after defendant physically abused her, causing her fatal injuries. A jury convicted defendant of (1) first-degree murder—victim under the age of 12, position of trust; (2) child abuse causing death; (3) child abuse causing death—pattern of conduct; (4) two counts of child abuse causing serious bodily injury; and (5) child abuse causing serious bodily injury—pattern of conduct.

On appeal, defendant contended that the trial court erred in holding that he did not have standing to assert a challenge under Batson v. Kentucky, 476 U.S. 79 (1986). Defendant made a Batson challenge when the prosecutor used a peremptory challenge to excuse Juror H, an African American. The prosecutor asserted that defendant could not make a Batson challenge because he was not African American. The trial court agreed and concluded that the challenged juror and defendant had to be of the same race. A defendant does not have to be of the same race or cognizable group as that of an excused juror to make a Batson challenge. However, the prosecution provided race-neutral grounds for excusing Juror H, and defendant did not establish purposeful discrimination. Therefore, the court did not err.

Defendant contended that the trial court should have granted his challenges for cause to two prospective jurors, Juror C and Juror W, who were later removed by peremptory challenges. Because defendant failed to demonstrate that a biased juror actually sat on the jury, the court did not err.

Defendant also contended that the trial court erred in admitting the testimony of three expert witnesses regarding injuries consistent with non-accidental trauma, as well as Detective Thrumston’s testimony recounting M.B.’s removal from life support. The Court of Appeals ruled that the trial court did not abuse its discretion nor err in admitting the testimony.

Defendant further argued that the court erred in failing to merge his convictions. Defendant is correct that the four child abuse counts must merge into one conviction because they are alternative ways of committing the offense of child abuse. The child abuse convictions, however, should not have merged into the first-degree murder conviction, because each offense contains an element not included in the other. The judgment was affirmed in part and reversed in part, and the case was remanded with directions.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Defense Counsel Waived Confrontation Clause Claim by Eliciting Testimonial Statements

The Colorado Court of Appeals issued its opinion in People v. Merritt on Thursday, September 25, 2014.

Confrontation Clause—Autopsy Report—Testimonial.

A hotel desk clerk found Welch’s body in the room where she had lived for about five years. Her throat had been cut and a large amount of blood was visible on her body and on the bed beneath her. Defendant, a security guard at the hotel, was charged with her death. He was found guilty of second-degree murder and was sentenced to thirty-six years in the custody of the Department of Corrections.

On appeal, defendant alleged that the court violated his rights under the Confrontation Clause by admitting an autopsy report prepared by a doctor who was not present at trial. Dr. Lear-Kaul performed an autopsy and authored a report detailing her findings and conclusions regarding the cause and manner of Welch’s death. Because Dr. Lear-Kaul was on maternity leave during the trial, her supervisor, Dr. Dobersen, testified regarding the autopsy report and the cause of death.

Given the state of the body, the nature of the crime scene, and the statutorily mandated cooperation between the coroner’s office and the district attorney’s office, it was reasonable for Dr. Lear-Kaul to assume that the report containing her findings and conclusions would be used in the eventual prosecution of a murder suspect. Therefore, the statements were testimonial. However, by asking Dr. Dobersen questions about alternative causes of death, which relied on facts contained in the autopsy report, defendant’s counsel intentionally opened the door on a particular line of questioning and effectively waived the right to confrontation. The judgment was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Tenth Circuit: Sanctions Reversed for Lack of Notice and Hearing

The Tenth Circuit Court of Appeals issued its opinion in United States v. Melot on Friday, September 26, 2014.

Katherine Melot (plaintiff) and her husband Billy owe the government millions of dollars in federal taxes, and Billy is serving a prison sentence for tax crimes. The tax debt led the government to foreclose on the Melots’ properties. The Melots tried to stop the foreclosures using fraudulent methods — namely, by asserting liens on the property in the name of Stephen Byers, an incarcerated and destitute person. The liens and Byers’ motion to intervene in the foreclosure proceedings were signed by Mrs. Melot and they were mailed from the address of a friend of the Melots. The government suspected fraud and, at the hearing on the motion to intervene, presented evidence tending to show the scheme between Melot and Byers.

At the hearing, Mrs. Melot’s counsel requested notice prior to the imposition of any sanctions, and the magistrate noted that the Melots would be noticed on any hearing regarding the contempt. The magistrate certified criminal contempt by the Melots. More than a year later, the district court issued an order addressing the contempt certifications, and, recognizing the costs of prosecuting a criminal contempt matter, declined to order contempt, instead imposing the following sanctions: (1) removal of Mrs. Melot and her children from the property; (2) reimbursement of the government’s costs for the hearing; (3) striking the Melots’ pending motions, responses to motions, and requests for stays; and (4) imposing filing restrictions.

Mrs. Melot appealed the sanctions, arguing the district court violated the Fifth Amendment’s Due Process clause by imposing sanctions without giving the Melots notice and an opportunity to be heard. The Tenth Circuit agreed. Sanctions cannot be imposed without notice that sanctions are being considered by the court and a subsequent opportunity for the defending party to be heard. Although the magistrate had provided notice of the possibility of criminal contempt, there was no notice of the imposition of sanctions. The Tenth Circuit reversed the district court’s sanction order and remanded for further proceedings, noting that the district court was not barred from re-imposing sanctions after proper notice and hearing.

Tenth Circuit: Unpublished Opinions, 9/26/2014

On Friday, September 26, 2014, the Tenth Circuit Court of Appeals issued one published opinion and three unpublished opinions.

Williams v. Patton

United States v. Melot (Billy)

United States v. Melot (Katherine)

Case summaries are not provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.