August 20, 2017

Archives for March 29, 2017

Colorado Court of Appeals: Court Procedure Met Joinder Statute’s Purpose of Preventing Successive Prosecutions

The Colorado Court of Appeals issued its opinion in People v. Leverton on Thursday, March 23, 2017.

Theft by Receiving—Possession—Drug Paraphernalia—Mandatory Joinder—Double Jeopardy—Prior Statements—Impeachment—Evidence.

The victim started her car and left it running while she went inside her home to retrieve some belongings. When she returned to where the car had been parked, the car was gone. She immediately reported the theft to the police. A few days later, a police officer pulled over the stolen car. Leverton and two women were passengers. Leverton told the officer that the car belonged to the victim, whom he claimed was his girlfriend. Leverton was arrested and transported to the police station. After removing Leverton from the police vehicle, the officer discovered a pipe typically used to smoke methamphetamine. Leverton was initially charged with possession of drug paraphernalia. Shortly thereafter in a separate case he was charged with theft by receiving. The cases were later joined on the prosecution’s motion, over defendant’s objection. The women passengers testified at Leverton’s trial and were questioned by the prosecutor about oral statements they allegedly had made to police following their arrests. Leverton was convicted as charged.

On appeal, Leverton argued that the trial court erred when it rejected his guilty plea on the paraphernalia charge and then permitted the prosecution to add that charge to the theft complaint because the result was that he was effectively charged with the same offense in two separate cases. He claimed that this violated Colorado’s mandatory joinder statute and the Double Jeopardy Clauses of both the U.S. and Colorado Constitutions. The Court of Appeals noted that Leverton did not allege that he was reprosecuted for either offense after he was convicted or that he was sentenced or otherwise punished multiple times for those offenses. Here, the prosecution moved to join the two offenses prior to Leverton’s attempt to plead guilty to the paraphernalia charge. The court’s procedure met the purpose of the mandatory joinder statute, to prevent successive prosecutions, and Leverton raised no claim of unfair prejudice resulting from the procedure. Further, the court acted within its discretion when it rejected Leverton’s guilty plea to the petty offense. And because the court had not accepted Leverton’s guilty plea on the paraphernalia charge, double jeopardy had not attached and there was no due process violation.

Leverton next argued that the trial court erred in permitting the prosecution to examine the two women witnesses about their prior statements to the police, alleging this evidence was inadmissible and violated his confrontation rights. Both women testified that they did not remember what happened the night the stolen car was pulled over, nor did they remember any statements they made to the police. To impeach the witnesses, the prosecutor was entitled to confront them with the exact language of their prior inconsistent statements. Therefore, the court properly admitted the statements.

Leverton also argued that the prosecution did not present sufficient evidence to prove beyond a reasonable doubt that he committed theft or possessed drug paraphernalia. A few days after the car had been reported stolen, the police found Leverton sitting in the car’s front passenger seat. Though Leverton told the police that the car had been given to him by the victim, his statement was directly refuted by the victim’s testimony that she had never met him. This and other evidence was sufficient to support the theft by receiving conviction. There was also sufficient evidence concerning the pipe found in the police vehicle for the jury to convict Leverton of possession of drug paraphernalia.

Leverton also argued that his convictions were based on his associations with other persons. Having found that the prosecution presented sufficient evidence proving that Leverton and not some other person committed the crimes, the Court rejected this argument.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Attorney in Malpractice Case Must Raise Collectibility as Affirmative Defense

The Colorado Court of Appeals issued its opinion in Gallegos v. LeHouillier on Thursday, March 23, 2017.

Legal MalpracticeBurden of ProofCollectabilityAffirmative Defense.

Plaintiff Gallegos sued defendants LeHouillier, an attorney, and his law firm, LeHouillier & Associates, P.C. (collectively, LeHouillier), for legal malpractice. The jury found that LeHouillier had negligently breached his duty of professional care when handling an underlying medical malpractice case for Gallegos. The trial court placed the burden on Gallegos to prove that any judgment in the underlying case was collectable, and it ruled that Gallegos had provided sufficient evidence to prove that point, entering judgment in her favor.

On appeal, LeHouillier contended that the judgment must be reversed because collectibility is an element that a plaintiff must prove in a legal malpractice case, and Gallegos did not prove that any judgment that she would have received in the underlying malpractice case would have been collectible. Gallegos countered that the issue of collectibility is an affirmative defense and the court should have required LeHouillier to prove that the judgment was not collectible. The Court of Appeals determined that the record did not contain sufficient evidence that the judgment was collectible. In addition, the trial court erred when it placed the burden on Gallegos to prove that any judgment in the underlying medical malpractice case would have been collectible; it should have required LeHouillier (1) to raise the question of collectibility as an affirmative defense and (2) to prove that any judgment Gallegos would have received would not have been collectible.

The judgment was reversed and the case was remanded for a new trial.

Summary provided courtesy of The Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 3/28/2017

On Tuesday, March 28, 2017, the Tenth Circuit Court of Appeals issued two published opinions and eight unpublished opinions.

United States v. Quinn

United States v. Kalu

United States v. Hernandez-Banega

United States v. Phung

United States v. Rodriguez

Maiteki v. Marten Transport, Ltd.

Bejar v. Department of Veterans Affairs

McCoy v. State of Wyoming

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

Tenth Circuit: Unpublished Opinions, 3/27/2017

On Monday, March 27, 2017, the Tenth Circuit Court of Appeals issued no published opinion and four unpublished opinions.

United States v. Evans

United States v. McKinney

United States v. Rollins

United States v. Morales

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