April 1, 2015

Colorado Court of Appeals: Defendant who Violated Conditions of Youthful Offender Sentence Did Not Complete Sentence

The Colorado Court of Appeals issued its opinion in People v. Martinez on Thursday, March 26, 2015.

Youthful Offender System—Revocation—Jurisdiction—Motion for Reconsideration—Evidence.

On April 30, 2007, defendant, a juvenile at the time, pleaded guilty to first-degree assault. He received a sentence of eighteen years in the custody of the Department of Corrections (DOC), suspended pending successful completion of a six-year sentence to Youthful Offender System (YOS). On January 18, 2012, while serving the community supervision portion of his YOS sentence, defendant walked away from his YOS residential center. On March 6, 2012, after an administrative hearing, defendant was found guilty of escape without force. The date defendant’s YOS sentence was set to expire (May 12, 2012) passed without the prosecution filing any documents related to revocation proceedings against defendant in Arapahoe County. The prosecution later moved to revoke defendant’s YOS sentence. The trial court denied the prosecution’s motion for lack of jurisdiction.

On appeal, the People contended that the district court erred when it concluded it did not have jurisdiction to revoke defendant’s YOS sentence. By violating conditions of his YOS sentence before the anticipated completion date, defendant did not successfully complete his YOS sentence. Further, the arrest and custodial status of an offender alleged to have violated the terms and conditions of a YOS sentence toll the discharge date of the YOS sentence pending resolution of the charges. Accordingly, the district court retained jurisdiction to revoke defendant’s YOS sentence and impose the original DOC sentence. The Court of Appeals disapproved those portions of the district court’s orders deciding to the contrary.

However, in its order on the prosecution’s motion to reconsider, the trial court ruled in the alternative that if it retained jurisdiction to revoke defendant’s sentence, it was exercising its discretion to dismiss the revocation proceeding based on the DOC’s failure to comply with the provisions of the YOS statute. Because the district court retained discretion to fashion a remedy it deemed appropriate for the statutory violation, the trial court did not abuse that discretion in determining dismissal was the appropriate remedy.

The People further contended that the district court erred when it refused to consider new evidence attached to their motion for reconsideration. Because the applicable rules of criminal and civil procedure did not allow for the introduction of new evidence and the prosecution failed to establish an extraordinary circumstance entitling it to relief under CRCP 60(b)(5), the district court did not abuse its discretion in denying the prosecution’s motion altogether. The order was affirmed and the ruling was disapproved in part.

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

Colorado Court of Appeals: Eyewitness “Showup” Identification Not Inherently Impermissible

The Colorado Court of Appeals issued its opinion in People v. Theus-Roberts on Thursday, March 26, 2015.

Eyewitness—Identification—Jury Instructions—Witness Credibility—Expert Testimony—Lay Witness—Complicity.

According to the prosecution’s evidence at trial, Theus-Roberts and another man, Parrish, got into a cab and told the driver to take them to a designated location. When they got there, Parrish got out. Theus-Roberts had the driver take him to several other locations before returning to the initial destination approximately an hour later, running up a $90 fare. Theus-Roberts gave the driver $80 in cash, told him he would need to get the rest from his apartment, and walked away. Eventually, a man—identified by the driver at trial as Theus-Roberts—came to the driver’s window, aimed a gun at the driver, demanded and took the $80, and shot the driver in the chest. The driver fled and called 911. A jury convicted Theus-Robert of attempted first-degree murder, first-degree assault, aggravated robbery, second-degree assault, and two crime of violence sentence enhancers.

On appeal, Theus-Roberts contended that the trial court erred by denying his suppression motion and allowing an eyewitness, R.M., to give testimony that was the product of an unduly suggestive out-of-court showup. R.M. lived in a house across the street from where the shooting occurred and looked out her window when she heard a loud noise. She saw a “black male wearing dark clothing and carrying a black bag next to the taxi cab.” The man “walked away from the scene at a quick pace southbound through the alley.” At the scene of the crime, R.M. identified the black bag and thereafter identified Theus-Roberts as the shooter. Under the totality of the circumstances in this case, the identification was not unreliable. Therefore, the trial court did not err by denying the suppression motion.

Theus-Roberts also argued that the trial court erred in refusing to give his three jury instructions that would have provided guidance on evaluating the reliability of eyewitness identification testimony. Here, the jury received the pattern instruction on the credibility of witnesses instruction. Therefore, the trial court did not err in refusing Theus-Roberts’s additional tendered instructions.

Theus-Roberts contended that the trial court erroneously admitted irrelevant and prejudicial expert testimony from a lay witness when it allowed a police officer to testify about gunshot residue (GSR) testing and fingerprint recovery. After a forensic expert testified about the possible explanation for absence of GSR and fingerprint evidence, the police officer who ordered the testing testified as to his experience with this type of evidence. The officer was qualified by his experience and training to testify about GSR and fingerprint testing; his testimony was brief; and it was cumulative of the testimony of experts who had already testified, in detail and without objection, about why GSR or latent fingerprint tests might be negative. Therefore, any error was harmless.

Theus-Roberts further contended that the trial court erred in instructing the jury, over his objection, on complicity. However, the evidence was sufficient to permit the jury to conclude that Parrish was the shooter and that Theus-Roberts intended to—and did—aid and abet Parrish in setting up the crime. Thus, the trial court did not err in instructing the jury on complicity. The judgement was affirmed.

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

Colorado Court of Appeals: Specific Victim or Victims Must Be Named to Support Assault and Manslaughter Charges

The Colorado Court of Appeals issued its opinion in People v. Griego on Thursday, March 26, 2015.

Driving Under the Influence—Attempted Reckless Manslaughter—Attempted Second-Degree Assault—Evidence—Victim.

On December 26, 2005 and October 7, 2006, defendant was observed operating a motor vehicle while intoxicated. On both of these occasions, he was issued a summons for driving while under the influence of alcohol (DUI). Although the investigating officer provided a detailed report to the District Attorney’s Office indicating that it would not be appropriate to file any additional charges in these cases, it nevertheless charged defendant with attempted reckless manslaughter and attempted second-degree assault, both felonies. Over defendant’s objections, the trial court permitted the prosecution to present evidence under CRE 404(b) that defendant had previously been arrested for DUI six times between June 20, 1992 and September 30, 2001, which was the sole basis for the additional charges. He was convicted on both counts.

On appeal, defendant contended that the prosecution failed to present sufficient evidence to show that “another person” was put in danger by his behavior in either incident. The manslaughter and second-degree assault statutes both require a substantial risk to “another person” and the likelihood that “another person” will die or receive serious bodily injury. To secure a conviction under CRS §§ 18-3-104 and -203, therefore, the prosecution must establish that the defendant’s behavior placed a discernible person at substantial risk for likely death or serious bodily injury. It is insufficient merely to establish that the defendant placed any and all members of the public in his or her vicinity at risk. Here, there is no evidence in the record from which a reasonable jury could find that defendant’s driving on either date jeopardized or threatened any oncoming traffic or individuals. Accordingly, the trial court erred in denying defendant’s motion for a judgment of acquittal as to both counts.

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

Tenth Circuit: Unpublished Opinions, 3/31/2015

On Tuesday, March 31, 2015, the Tenth Circuit Court of Appeals issued two published opinions and no unpublished opinion.

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

Colorado Court of Appeals: Defendant Has Right to Withdraw Plea as Void Ab Initio Even When Deferred Judgment Completed

The Colorado Court of Appeals issued its opinion in People v. Corrales-Castro on Thursday, March 26, 2015.

Deferred Judgment—Successful Completion of Sentence—Withdrawal of Guilty Plea—Jurisdiction—Immigration Consequences—Voluntary—Unconstitutional—Ineffective Assistance of Counsel.

In 2009, defendant pleaded guilty to criminal impersonation and DUI. The district court imposed a one-year deferred judgment and sentence on the criminal impersonation count, and one year of probation on the DUI count. In 2010, defendant successfully completed the conditions of the deferred judgment and probation. The district court withdrew the guilty plea on the criminal impersonation count, dismissed that count, and closed the case. In 2013, defendant filed a Crim.P. 32(d) motion to withdraw his guilty plea to criminal impersonation, alleging ineffective assistance of counsel. The district court denied the motion, holding that it lacked jurisdiction to consider defendant’s motion to withdraw his guilty plea.

On appeal, defendant argued that the district court erred when it held it did not retain jurisdiction to consider his motion. When a guilty plea that is withdrawn after the successful completion of a deferred judgment may nevertheless result in the removal of a defendant from the United States (or the defendant’s inability to re-enter the country), Crim.P. 32(d) authorizes the defendant to challenge the constitutionality of the plea, regardless of its prior withdrawal. Here, defendant claimed that ineffective assistance of counsel rendered his guilty plea involuntary and thus unconstitutional because his defense counsel had failed to inform him that his guilty plea to criminal impersonation could have negative federal immigration consequences, even if he successfully completed the conditions of the deferred judgment. Furthermore, under the circumstances presented here, a Crim.P. 32(d) motion is not subject to the time limits of CRS § 16-5-402(1), and defendant’s motion is not time barred by that statute. Accordingly, the district court retained jurisdiction to decide defendant’s motion, the order denying defendant’s motion to withdraw his guilty plea under Crim.P. 32(d) was reversed, and the case was remanded for a determination of defendant’s Crim.P. 32(d) motion.

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

Colorado Court of Appeals: Declaratory Judgment Appropriate and Statutory Definition of Firearm Encompasses Bow Hunting

The Colorado Court of Appeals issued its opinion in Moss v. Board of County Commissioners for Boulder County on Thursday, March 26, 2015.

Declaratory Judgment—Firearm—Definition—County Board—Geographic Area.

This case concerns a county resolution that prohibits firearm discharges in a designated area of Sugar Loaf Mountain in unincorporated Boulder County. Moss and Westby live and own property in this area. Colorado Advocates for Public Safety is a nonprofit corporation whose mission is to assist in protecting the public from safety hazards, such as those involving firearms. This dispute between plaintiffs and the Board of County Commissioners for Boulder County (County Board) centers around the definition and scope of this resolution.

On appeal, plaintiffs contended that the district court erred in dismissing their declaratory judgment claim, wherein plaintiffs sought a judicial determination that, as a matter of law, the word “firearm” in CRS §§ 30-15-301 to -302 and Resolution 80-52 includes bows and arrows. Because a declaratory judgment would terminate the controversy or uncertainty regarding the scope of the resolution, plaintiffs’ declaratory judgment claim was properly raised in the district court and the district court erred in declining to address it.

The statute that authorizes counties to prohibit firearm discharges expressly defines “firearm” or “firearms” as “any pistol, revolver, rifle, or other weapon of any description from which any shot, projectile, or bullet may be discharged.” A bow is a weapon and an arrow is a projectile. Therefore, a bow and arrow constitute a “firearm” under this statute, and plaintiffs were entitled to a declaratory judgment in their favor on this issue.

Plaintiffs also requested an expansion of the geographic area covered by the resolution in their claim for injunctive relief. CRS § 30-15-302 does not subject the County Board to any procedural requirements to address plaintiffs’ request, and Colorado’s Administrative Procedure Act does not apply to the County Board. Additionally, plaintiffs concede that they have not asserted and cannot assert a claim under CRCP 106(a)(4) because there has been no final agency action in this case. Finally, plaintiffs have failed to state a constitutional due process claim on which relief can be granted. Therefore, the district court did not err in dismissing plaintiffs’ claim for injunctive relief on this issue.

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

Tenth Circuit: Specific Findings Must be Made Before Occupational Restrictions Imposed

The Tenth Circuit Court of Appeals issued its opinion in United States v. Dunn on Tuesday, February 10, 2015.

Michael Dunn was convicted of possession, receipt, and distribution of child pornography and sentenced to 144 months’ imprisonment followed by 25 years’ supervised release after placing images of child pornography in a shared folder on a peer-to-peer file sharing network. The district court imposed several conditions of supervised release, including restricting Dunn’s ability to use and access computers and the internet, and also imposed restitution based on a request from one of the minors depicted in the images Dunn shared. Prior to his conviction, Dunn was a computer teacher and computer technician. Dunn appealed, arguing: (1) the jury was erroneously instructed that by placing the child pornography images in the shared folder, he could be convicted on the distribution charge; (2) his sentences for receipt and distribution are duplicitous; (3) the district court failed to make the necessary findings regarding the occupational restriction imposed during his supervised release; and (4) the district court applied the wrong legal standard in determining the amount of restitution he was required to pay.

The Tenth Circuit first examined the jury instruction issue, and, following its precedent, found that defendant’s knowing placement of the child pornography files into a shared folder was sufficient to constitute distribution. Dunn also argued that the instructions forced the jury to accept the prosecution’s explanation of how the peer-to-peer software worked, but the Tenth Circuit found nothing to support this conclusion, finding instead that the jury was free to accept either the prosecution’s or the defense’s evidence.

As to Dunn’s second point on appeal, the prosecution conceded that Tenth Circuit precedent precluded separate sentences for both receipt and possession of child pornography regarding the same images. The Tenth Circuit agreed and remanded on this point for vacation of one of the sentences.

Dunn also argued that the district court impermissibly imposed special conditions on his release that prevented him from being employed without making specific findings. The 25-year term of special conditions of Dunn’s release include numerous restrictions on Dunn’s ability to use computers and the internet, which impact his employment as a computer technician and computer teacher. Because the district court did not make specific determinations regarding the necessity of the occupational restrictions and did not impose the restrictions for the minimum time necessary, the Tenth Circuit remanded with instructions for the district court to vacate the restrictions and reconsider the issue with proper findings.

Finally, Dunn argued, and the prosecution agreed, that the district court’s imposition of the victim’s entire amount of restitution was inconsistent with the Supreme Court’s decision in Paroline v. United States. The Tenth Circuit agreed, and, analyzing Paroline‘s effect on restitution awards in child pornography cases, remanded for the district court to consider Dunn’s actual contribution to the victim’s damages.

The judgment was affirmed in part, reversed in part, and remanded with instructions.

Tenth Circuit: Unpublished Opinions, 3/30/2015

On Monday, March 30, 2015, the Tenth Circuit Court of Appeals issued no published opinion and two unpublished opinions.

Valdez-Rodriguez v. Holder

Callen v. Wyoming Department of Corrections

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

Tenth Circuit: Unpublished Opinions, 3/27/2015

On Friday, March 27, 2015, the Tenth Circuit Court of Appeals issued one published opinion and three unpublished opinions.

United States v. Celio

Pine Telephone Co., Inc. v. Alcatel-Lucent USA Inc.

United States v. Seymour

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

Colorado Court of Appeals: Announcement Sheet, 3/26/2015

On Thursday, March 26, 2015, the Colorado Court of Appeals issued five published opinions and 42 unpublished opinions.

People v. Griego

People v. Theus-Roberts

People v. Martinez

People v. Corrales-Castro

Moss v. Board of County Commissioners for Boulder County

Summaries of these cases are forthcoming, courtesy of The Colorado Lawyer.

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, 3/26/2015

On Thursday, March 26, 2015, the Tenth Circuit Court of Appeals issued no published opinion and three unpublished opinions.

Smith v. Jones

Alejandre-Gallegos v. Holder

J.D. Kirk, LLC v. Cimarex Energy Co.

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

Tenth Circuit: Unpublished Opinions, 3/25/2015

On Wednesday, March 25, 2015, the Tenth Circuit Court of Appeals issued no published opinion and four unpublished opinions.

Chytka v. Wright Tree Service, Inc.

United States v. Ocegueda

Lewis v. JP Morgan Chase Bank, N.A.

United States v. Sanchez-Fragoso

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