September 24, 2017

Archives for June 23, 2017

Hon. Martha T. Minot to Retire from La Plata County Court

On Wednesday, June 21, 2017, the Colorado State Judicial Branch announced the retirement of Hon. Martha T. Minot from the La Plata County Court, effective August 29, 2017. Judge Minot was appointed to the La Plata County Court in March 1995. She presides over a case load that includes traffic offenses, misdemeanors, and civil cases. Prior to her appointment to the bench, Judge Minot was in private practice in Durango, Colorado. She is active in her community; Judge Minot has been the president of the Southwest Colorado Bar Association, the president of the Colorado County Judges Association, is currently a member of the Judicial Discipline Committee and is involved in numerous civic activities in her jurisdiction, including being a hospice volunteer and training advocates for a crisis telephone service.

Applications are now being accepted for the upcoming vacancy. Eligible applicants must be qualified electors of La Plata County and must have been admitted to practice law in Colorado. Application forms are available from the State Judicial website or from the ex officio chair of the Sixth Judicial District Nominating Commission, Justice William Hood, III. Application forms must be received no later than 4 p.m. on July 12, 2017. Anyone wishing to nominate another must do so no later than 4 p.m. on July 5, 2017.

For more information about the vacancy, click here.

Colorado Court of Appeals: Multiple Errors from Prosecutorial Overreach Did Not Influence Outcome of Trial

The Colorado Court of Appeals issued its opinion in People v. Howard-Walker on Thursday, June 15, 2017.

Batson Challenges—Peremptory Strikes—Jurors—Testimony—Expert Opinion—Lay Witness—Prosecutorial Misconduct—Jury Instructions—Cumulative Error Doctrine.

Defendant was charged with first degree burglary and conspiracy to commit first degree burglary. Among other evidence presented, his girlfriend and Detective Garcia testified at his trial. He was convicted as charged and sentenced.

On appeal, defendant contended that the trial court erred when it denied his challenges, under Batson v. Kentucky, to the prosecutor’s peremptory strikes excusing three prospective jurors—one who identified himself as African-American and two who identified themselves as Hispanic—asserting that the prosecutor’s “race-neutral” reasons for removing the jurors were not worthy of belief. One challenged juror was disinterested, the second juror had a negative experience with law enforcement and a belief that police officers sometimes misidentify suspects, and the third juror had previously faced criminal charges from the same district attorney’s office and had a negative view of law enforcement. Therefore, the trial court’s Batson findings are supported by the record.

Defendant next argued that the admission of several portions of Garcia’s testimony constituted reversible error: (1) Garcia was not admitted as an expert witness, but gave opinions regarding whether the gun depicted in the video surveillance was real. Although this was improper, it did not constitute plain error. (2) Garcia testified about the manner in which the gun was being used. Any error in admitting this testimony was harmless. (3) It was not error for Garcia to identify defendant. No specialized knowledge is necessary to recognize an individual in a video and this evidence was probative of a material fact. (4) Garcia testified regarding probable cause, which was not relevant; however, this was not plain error. (5) Garcia testified but had no personal information about the reasons why defendant’s girlfriend was crying during the police interview. This testimony was not obviously improper and did not undermine the fairness of the trial. (6) Garcia opined about defendant’s statement regarding another perpetrator. Even if this was improper, it did not undermine the fundamental fairness of the trial. (7) Garcia opined about the truthfulness of defendant’s statements to police. Though this testimony was improper, it does not rise to the level of plain error because there was other sufficient evidence to support his conviction.

Defendant next asserted that the prosecutor engaged in reversible misconduct. Although the prosecutor stepped over the line when he repeatedly suggested that the girlfriend was committing perjury, the prosecutor did not threaten or coerce her, and any misconduct was not reversible. The prosecutor also commented on the girlfriend’s truthfulness. The evidence supported a reasonable inference that her testimony was false, and thus these comments were proper. Finally, although the court did not condone the prosecutor’s comment on defendant’s decision not to testify, the comment did not amount to plain error.

Defendant further argued that the trial court erred when it failed to instruct the jury on the predicate crime of theft and when it failed to define the word “intent.” While the jury instructions were deficient, (1) the record demonstrates that the specification of the underlying crime was not a controverted element of the burglary offense; therefore, the court’s failure to instruct the jury on theft was not plain error, and (2) under the circumstances of this case, the court’s failure to define the culpable mental state similarly did not constitute plain error.

Finally, defendant argued that the cumulative effect of the trial court’s errors and prosecutorial misconduct violated his right to a fair trial. The errors were relatively small events occurring over a two-day trial during which substantial evidence was presented. Defendant received a fair trial in spite of the identified errors.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Attempts to Tamper with Witness Need Not Actually be Communicated to Victim

The Colorado Court of Appeals issued its opinion in People v. Brooks on Thursday, June 15, 2017.

Assault—Witness Tampering—Evidence—Attempt—Judicial Notice—Plea of Guilty—Grossly Disproportionate.

Brooks discovered that his girlfriend (the victim) was pregnant with another man’s child, and then argued with and assaulted her. While in jail, Brooks repeatedly telephoned the victim and others in an attempt to persuade them either to not testify against him on the domestic violence charge or to give false testimony. He also wrote letters to the victim to persuade her either to not testify or to testify falsely on his behalf. These letters were intercepted by a jail officer, and as a result, the victim did not receive them. Brooks was convicted of two counts of assault in the third degree against the victim, two counts of assault in the second degree against a peace officer, resisting arrest, violation of a protective order, and two counts of tampering with a witness or victim. The second tampering count was based on the letters. The court adjudicated Brooks a habitual criminal and imposed a mandatory 24-year sentence. Brooks requested and received an abbreviated proportionality review of the mandatory sentence. After that hearing the district court concluded that Brooks’s sentence was not disproportionate and denied him an extended proportionality review.

On appeal, Brooks argued that there was insufficient evidence to convict him of the second count of tampering with a witness or victim based on the letters because the victim never received them. The tampering with a witness or victim statute does not require that the “attempt” to tamper actually be communicated to the victim or witness. Therefore, the evidence was sufficient to convict Brooks on this charge.

Brooks also argued that the district court abused its discretion in taking judicial notice of the complete case files of his prior felony convictions and that without such improper judicial notice, there was insufficient evidence to support the habitual criminal adjudication. The registers of actions relevant to this case showed that Brooks’s two prior felony convictions were for distinct criminal offenses that occurred months apart. Thus, sufficient evidence supported his habitual criminal conviction.

Brooks further argued that his plea of guilty to felony theft from a person was constitutionally invalid and thus could not support his habitual criminal conviction. Brooks’s plea to theft was constitutionally valid because he entered it voluntarily and knowingly. The district court did not err in finding that it was a valid prior felony conviction under the habitual criminal statute.

Finally, Brooks argued that the district court erred in concluding that his sentence was not grossly disproportionate to his crimes and in not granting him an extended proportionality review. Tampering with a witness or victim is not a per se “grave or serious” offense. However, the facts underlying these crimes were grave or serious. The prosecution identified at least 250 phone conversations in which Brooks attempted to tamper with a witness or victim. Brooks continued tampering with the victim after the prosecution charged him with the first count of tampering and his phone privileges were discontinued. His conduct demonstrated a blatant disregard for the law and thus constituted a grave or serious offense. The Court of Appeals considered all of the convictions and the underlying circumstances as a whole and concluded that Brooks’s mandatory sentence was not grossly disproportionate.

The judgment and sentence were affirmed.

Summary provided courtesy of The Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 6/22/2017

On Thursday, June 22, 2017, the Tenth Circuit Court of Appeals issued no published opinion and five unpublished opinions.

Becker v. Cline

United States v. Burton

Rice v. Trump

Vernon v. Dickson

Farris v. Allbaugh

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