July 22, 2017

Archives for July 7, 2017

Colorado Court of Appeals: Obvious Instructional Error Did Not Fundamentally Undermine Defendant’s Rights

The Colorado Court of Appeals issued its opinion in People v. Hoggard on Thursday, June 29, 2017.

Custody—Child and Family Investigator—Second Degree Forgery—Attempt to Influence a Public Servant—Invited Error—Waiver—Constructive Amendment—Lesser Included Offense—Jury Instructions—Mens Rea.

During a child custody dispute, Hoggard forwarded to the court-appointed child and family investigator a chain of emails between her and her ex-husband. Hoggard allegedly falsified that email chain by adding five sentences that made it appear that her ex-husband had threatened her. As a result of that alleged falsification, Hoggard was convicted of second degree forgery and attempt to influence a public servant.

As an initial matter, the People argued that the doctrines of invited error and waiver preclude appellate review of Hoggard’s instructional error claims. Although Hoggard’s counsel approved the disputed jury instructions, it was an oversight, not a strategy, and therefore not invited error. Further, the failure to object to the jury instructions was not a waiver under the circumstances of this case.

Hoggard contended on appeal that the trial court constructively amended the second degree forgery charge by instructing the jury on the uncharged and more serious offense of felony forgery. Although the trial court’s forgery instruction was erroneous, instructing the jury on felony forgery was not a constructive amendment because Hoggard was both charged with and convicted of second degree forgery, a lesser included offense of felony forgery. Further, there is no reasonable likelihood that the instructional error affected the outcome of the trial.

Hoggard next argued that her conviction for attempt to influence a public servant must be reversed because the trial court did not instruct the jury on the required mens rea for each element of the offense, thereby violating her constitutional due process rights. Although the trial court’s instruction on the charge tracked the statute, it did not expressly require the jury to find that Hoggard acted with intent as to the third and fourth elements of the crime: that she intended to attempt to influence a public servant and that she intended to do so by means of deceit. Nor did the instruction set off the mens rea requirement as a separate element. Accordingly, the trial court’s instruction on attempt to influence a public servant was erroneous and the error was obvious at the time of trial. However, because there was no reasonable probability that the trial court’s instructional error contributed to Hoggard’s conviction, it was therefore not plain error.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Defendant Waived Voluntariness Claim by Failing to Raise it At Suppression Hearing

The Colorado Court of Appeals issued its opinion in People v. Cardman on Thursday, June 29, 2017.

Due Process—Statements to Police—Interrogation—Voluntariness—Promises—Specific Performance—Waiver—Suppression Hearing.

Defendant petitioned for a writ of certiorari to the Colorado Supreme Court. The court granted the petition, vacated the judgment in Cardman I, and remanded to the court of appeals for reconsideration of the trial court’s failure to hold a hearing regarding the alleged promises the detective made to defendant during the interview. The specific issue on appeal was whether “the district court violated the defendant’s constitutional right to due process and reversibly erred by admitting statements the defendant made to a detective without first determining whether the statements were voluntary and whether the defendant was entitled to specific performance of direct and/or implied promises made to him by the detective during the interrogation.”

Defendant contended that statements he made in a police interview were not voluntary and that the trial court erred by not holding a hearing sua sponte on the voluntariness of the statements. Although there were serious concerns with the police interrogation tactics used in this case, defendant waived any arguments on the voluntariness issue by not raising it during the suppression hearing. Further, defendant did not request and the court was not required to sua sponte hold a hearing on voluntariness.

Defendant also contended that the court of appeals must remand for a hearing on whether he was entitled to specific performance of alleged promises made to him by police during an interview. However, defendant did not seek to enforce the alleged promises before trial and cited no cases in support of his argument.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Announcement Sheet, 7/6/2017

On Thursday, July 6, 2017, the Colorado Court of Appeals issued no published opinion and nine unpublished opinions.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions. The case announcement sheet is available here.

Tenth Circuit: Unpublished Opinions, 7/6/2017

On Thursday, July 6, 2017, the Tenth Circuit Court of Appeals issued one published opinion and three unpublished opinions.

United States v. Halcrombe

United States v. Monroe

United States v. Autobee

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