June 25, 2017

Colorado Supreme Court: No Reasonable Probability that Failure to Instruct Jury on Recklessness Contributed to Conviction

The Colorado Supreme Court issued its opinion in People v. Roman on Monday, June 19, 2017.

Jury Instructions—Lesser Included Offenses—Harmless Error.

The People sought review of the court of appeals’ judgment reversing Roman’s conviction for first degree assault. The trial court instructed the jury on the lesser included offense of second degree assault committed by intentionally causing bodily injury with a deadly weapon, but it denied Roman’s request for an additional lesser-included-offense instruction on second degree assault committed by recklessly causing serious bodily injury with a deadly weapon. The court of appeals reversed, concluding both that the trial court erred in denying Roman’s requested additional lesser-included-offense instruction and that the error was not harmless.

The supreme court reversed the judgment of the court of appeals. In light of the evidence presented at trial and the instructions actually provided to the jury, there was no reasonable possibility that the failure to instruct on reckless second degree assault contributed to defendant’s conviction of first degree assault. Any error in that regard would therefore have been harmless.

Summary provided courtesy of The Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 6/19/2017

On Monday, June 19, 2017, the Tenth Circuit Court of Appeals issued no published opinion and two unpublished opinions.

Board of Education for the Gallup-McKinley County Schools v. Henderson

Ernst v. Creek County Public Facilities Authority

Case summaries are not provided for unpublished opinions.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

Colorado Supreme Court: Announcement Sheet, 6/19/2017

On Monday, June 19, 2017, the Colorado Supreme Court issued seven published opinions.

People v. Roman

Nicholls v. People

Kinder Morgan CO2 Co., L.P. v. Montezuma County Board of Commissioners

Gallegos Family Properties, LLC v. Colorado Groundwater Commission

People v. Lente

Carestream Health, Inc. v. Colorado Public Utilities Commission

Roberts v. People

Summaries of these cases are forthcoming.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions.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

Tenth Circuit: No Sixth Amendment Violation where Court Disallowed Questioning Regarding Victim’s Mental Health

The Tenth Circuit Court of Appeals issued its opinion in United States v. John on February 27, 2017.

Defendant and the victim were related. At trial, the victim testified to the following facts: The victim was in the shower when Defendant showed up at her house. He started undressing in front of the shower door while the victim was still in the shower. Defendant moved towards the victim and the victim struggled to get away. Defendant pulled the towel away from the victim and pushed her head toward his “private parts.” The victim was able to get away from Defendant and grabbed a blanket before running outside. When outside, the victim called the police. Officers arrived after Defendant had left. The officers found the shower door tilted and the bathroom trashcan turned over. No forensic testing occurred. Defendant was convicted after a jury trial of one count of attempted aggravated sexual abuse in Indian country and one count of abusive sexual contact in Indian county.

At trial, Defendant wanted to cross-examine the victim about an incident that occurred in Phoenix. The district court did not allow the line of questioning and the Defendant challenged the courts ruling on appeal claiming it violated his Confrontation Clause rights under the Sixth Amendment and his right to present a complete defense under the Fifth and Sixth Amendments.

The Tenth Circuit summarized the facts of the Phoenix incident that it obtained from police reports. The victim had visited her sister in Phoenix. She alleged that her sister pressured her to drink. After the two argued, the victim tried to cut her writs. She was then taken to the hospital where she was transferred to an inpatient behavioral-health unit after telling the staff that she had been having suicidal thoughts for two years. During intake, she denied using any illicit substances, even though she told emergency staff that she used marijuana. The intake staff determined she had a mood disorder, but she was discharged without any medication needed. The victim’s sister denied to police that she gave the victim alcohol or coerced her to drink. Because the police could not determine how the victim got the alcohol, they closed the case.

On appeal, the Defendant argued that the Phoenix incident showed that the victim would falsely accuse him of sexual assault given her poorly controlled behavior and drug use revealed by the incident. It also would show her propensity to lie and accuse family members. These facts could have led the jury to draw “vital inferences” in his favor.

The Tenth Circuit held that because the Defendant only argued at trial that the Phoenix incident would show that the victim had an impaired ability to perceive events, and not the reasons given on appeal, Defendant was precluded from arguing such reasons on appeal. In fact, the Tenth Circuit points to the fact that Defendant’s counsel rejected the possibility of using the Phoenix incident for the reasons stated on appeal, which the Tenth Circuit held was an “intentional relinquishment or abandonment of a known right.”

The Tenth Circuit held that Defendant’s Sixth Amendment right to confrontation was not violated because that right is not unlimited. The Supreme Court has held that trial judges retain wide latitude to impose reasonable limits on cross-examination based on concerns about harassment, prejudice, and confusion of the issues. The Tenth Circuit held that the Phoenix incident was not even marginally relevant to the victim’s ability to remember or relate the shower incident. It would not show that the victim was on drugs at the time of the shower incident. Therefore, the Tenth Circuit held that no lay person could draw those inferences.

Next, the Tenth Circuit addressed the Defendant’s challenges to three jury instructs concerning the assessment of evidence.

The first challenged instruction stated: “The testimony of the complaining witness need not be corroborated if the jury believes the complaining witness beyond a reasonable doubt.” Defendant argued that the instruction did no accurately reflect the government’s burden of proving each element of the charged offenses beyond a reasonable doubt. The Tenth Circuit held that the district court did not abuse its discretion by giving this instruction because it properly informed the jury that it could convict on the basis of the testimony of a single witness, only if they believed that witness. Further, another instruction told the jurors that they could not convict unless they found each element of each offense beyond reasonable doubt.

The second challenged instruction stated: “ An attorney has the right to interview a witness for the purpose of learning what testimony the witness will give. The fact that a witness has talked to an attorney does not reflect adversely to the truth of such testimony.” Defendant argued that this instruction insulated from the jury’s scrutiny the cross-examination of the victim about being improperly influenced by the prosecutor. The Tenth Circuit held that the district court did not abuse its discretion by giving this instruction because it did not prevent defense counsel from making a commonsense suggestion that inappropriate coaching influenced the witness, which the counsel actually made.

The final challenged instruction stated: “You may infer, but you are certainly not required to infer, that a person intends the natural and probably consequences of acts knowingly done or knowingly omitted.” Defendant argues that this instruction was ambiguous, because it was not stated which element the instruction was meant to modify, and that it was confusing because it created uncertainty as to the requisite level of intent. The Tenth Circuit held that the district court did not abuse its discretion by issuing this instruction because the court made clear to the jury that the burden was on the government to prove the requisite intent beyond a reasonable doubt.

Finally, the Tenth Circuit held that the district court did not err in declining to instruct the jury that it could consider the lesser-included charge of simple assault, rather than just the charges of attempted aggravated sexual abuse and abusive sexual contact. The district court held that there was no evidence that the encounter was anything but sexual. The Tent Circuit affirmed this decision holding that the jury could reasonably have found that the alleged incident did not occur, but that there was no reasonable grounds for believing that Defendant assaulted the victim but with no sexual intent.

The Tenth Circuit affirmed the district court’s judgment.

Tenth Circuit: Drug Dog Search Illegal Where Warning Given for Speeding and Consent to Search Refused

The Tenth Circuit Court of Appeals issued its opinion in United States v. Lopez on February 27, 2017.

On June 21, 2013, Angela Lopez was driving eastbound in Kansas. Kansas Highway Patrol Trooper Robert Krause pulled the vehicle over for going 79 milers per hour in a 65-mile-per-hour zone. Adrienne Lopez was in the passenger seat. Throughout the encounter, Adrienne, rather than Angela, did almost all of the talking, which Krause said could be a sign of nervousness. Krause asked Angela for her license, insurance, and car-rental paperwork. Krause then looked in the back seat of the car. Upon doing so, Adrienne said, “Don’t look back there, it’s a mess.” Krause asked about their travel plans. Adrienne told him that they were going from California and headed to “Kansas City or Nebraska” to rescue her sister “because she was getting beat up by her boyfriend.” Angela provided Krause a receipt from the California Department of Motor Vehicles that was issued to her when she reported losing her license, rather than her actual license.

Krause asked both occupants if they had drugs in the car, to which both replied no. Krause relayed Angela’s information to the dispatcher and learned that she had a valid driver’s license and no criminal history. Krause warned Angela for speeding and turned to walk away. He immediately turned back and asked Angela if she would answer a few more questions, which she consented to. Krause asked where they were heading. Adrienne answered that she did not know the exact city because her phone did not have reception.

Krause then asked the Defendants if he could search the vehicle. They refused. Krause then detained them until a drug dog could be brought to the vehicle, which took about twenty minutes. The dog alerted Krause to the front seat where Adrienne’s purse was located. Adrienne admitted having some marijuana in her purse, which Krause found and then searched the rest of the car. He found four packages in a cooler in the back seat of methamphetamine. The packages totaled 1,766 grams of methamphetamine.

The United States District Court for the District of Kansas denied Defendants’ motions to suppress the evidence of methamphetamine found in the car. The two were convicted of possessing more than 500 grams of methamphetamine with intent to distribute, and of conspiracy to do the same. The Defendants appealed.

The Tenth Circuit first established that a traffic stop must be justified at its inception and that the officer’s actions during the stop must be reasonably related in scope to the circumstances that initially justified it. A stop may be extended beyond that scope if the person stopped consents to the extension or if the police have a reasonable suspicion that other illegal activity has occurred or is occurring.

Here, the Defendants did not consent to the extension of the stop by Krause beyond its initial purpose. Therefore, the Tenth Circuit addressed whether Krause had reasonable suspicion that the Defendants were engaged in criminal activity, which the government bears the burden of proving.

The government put forth three suspicious factors that justified detention: (1) Adrienne was nervous; (2) Adrienne asked Krause not to look at the backseat because it was messy, even though it was not; and (3) Defendant’s travel plans were implausible.

The Tenth Circuit first addressed Adrienne’s nervousness. It stated that it consistently assigns that factor limited significance because innocent people can be nervous in wide varieties. In order to contribute to reasonable suspicion, the Tenth Circuit held that there must be extreme nervousness, which the district court did not find, and Krause did not so testify.

Next, the Tenth Circuit held that Adrienne’s comments about the backseat gave little support for reasonable suspicion. It stated that in hindsight, the comments seemed revealing. But at the time, there was nothing incriminating in view on the backseat. Further, nothing stopped Krause from taking a closer look through the back window.

Finally, the Tenth Circuit addressed the government’s argument that the Defendants’ travel plans were implausible. The government pointed to the fact that the two only rented the car for two days, which was not enough time to drive to their destination and return. The Tenth Circuit held that the travel plans might have been overly ambitions, but they could reasonably have been done. First, the Tenth Circuit pointed to the fact that they were driving through the night, which was why two drivers were necessary. Next, because they were rescuing Adrienne’s sister from an abusive boyfriend, it was reasonable to assume they would not stay at the destination very long. Finally, because it was understandable that the sister needed to move to protect herself from her abusive boyfriend, it was reasonable that the Defendants did not need a more precise location until they were closer to the destination. Further, the Tenth Circuit stated that it has generally been reluctant to give weight to the reasonable-suspicion analysis to unusual travel purposes, except in extreme cases.

The Tenth Circuit held that the circumstances did not suffice to justify the continued detention of the Defendants. Therefore, the Tenth Circuit held that the evidence seized from the car must be suppressed.

The Tenth Circuit then quickly dispatched with the governments two remaining arguments. First, the government argued that the evidence was admissible against Adrienne because the discovery of the drugs was not the fruit of her unlawful detention. The Tenth Circuit held that because Krause seized the marijuana from Adrienne’s purse, and the detention of Adrienne’s personal property led to the search of the car and discovery of the methamphetamine, Adrienne did have standing to challenge the admission into evidence of the drugs.

Second, the government argued that the detention was lawful as to Angela because there was probable cause to arrest her for driving while not in possession of her driver’s license. The Tenth Circuit held that there was no probable cause to arrest Angela. First, the documents Angela gave Krause would likely be a “driver’s license” under the Kansas statute. Further, even if not a “driver’s license,” Krause learned from the dispatcher that she had a valid driver’s license in California, and therefore had enough information to know that she could not be convicted for the offense under the statute. The Tenth Circuit held that an officer does not have probable cause to arrest a person for a crime he know she could not be convicted of.

In sum, the Tenth Circuit reversed the Defendants’ convictions and remanded to the district court for proceedings consistent with its opinion.

Tenth Circuit: Unpublished Opinions, 6/16/2017

On Friday, June 16, 2017, the Tenth Circuit Court of Appeals issued one published opinion and one unpublished opinion.

United States v. Acosta-Tavera

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

Colorado Court of Appeals: Announcement Sheet, 6/15/2017

On Thursday, June 15, 2017, the Colorado Court of Appeals issued seven published opinions and 37 unpublished opinions.

People v. Brooks

People v. Howard-Walker

People in Interest of L.C.

Board of County Commissioners of County of Weld v. DPG Farms

Rome v. Reyes

Scott R. Larson, P.C. v. Grinnan

Development Recovery Co., LLC v. Public Service Co. of Colorado

Summaries of these cases are forthcoming.

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

Colorado Supreme Court: Unfettered Access to Crime Scene Video Allowed Because it Does Not Present Great Risk of Undue Influence

The Colorado Supreme Court issued its opinion in Rael v. People on Monday, June 5, 2017.

Electronic Exhibits—Crime Scene Videos—Statements by the Defendant—Jury Deliberations.

This case required the supreme court to decide whether it was reversible error for a trial court in a criminal case to provide the deliberating jury with “unfettered and unsupervised access” to a crime scene video and a video of a police interview of the defendant. A division of the court of appeals concluded that the trial court did not err in either regard. In reaching this conclusion, the division relied on DeBella v. People, 233 P.3d 664, 665–66 (Colo. 2010), in which the court considered the propriety of a trial court’s order allowing the jury unfettered access to the videotapes of a child sexual assault victim’s out-of-court interviews. Although the supreme court agreed that the trial court retains discretion regarding juror access to the videos at issue, the court disagreed with the division that DeBella provides the appropriate framework for resolving this case.

The court nevertheless concluded that the division reached the correct result, namely, that the trial court did not abuse its discretion in allowing the jury unfettered access to those videos during deliberations. In arriving at this conclusion, the court observed that the non-testimonial crime scene video did not present the same risk of undue emphasis as do videos documenting witnesses’ out-of-court, testimonial statements (like the videotapes at issue in DeBella). The court likewise observed, consistent with well-established precedent, that a defendant’s confession is not subject to the same limitations during deliberations as the out-of-court statements of other witnesses. Accordingly, the court affirmed the judgment of the court of appeals and remanded the case for further proceedings consistent with this opinion.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Agent May Exercise Apparent or Implied Authority to Reject UM/UIM Insurance Coverage

The Colorado Supreme Court issued its opinion in State Farm Mutual Automobile Ins. Co. v. Johnson on Monday, June 5, 2017.

Uninsured/Underinsured Motorist Insurance—Agency—Implied Authority.

This case presented two questions for the supreme court’s consideration. First, does the uninsured/underinsured motorist (UM/UIM) statute, C.R.S. § 10-4-609, require each named insured to reject UM/UIM coverage, or is one named insured’s rejection binding on all? And second, did the legislature, by enacting C.R.S. § 10-4-609, abrogate the common law agency principles of implied authority and apparent authority? The court started with the second question and concluded that nothing in the language of C.R.S. § 10-4-609 precludes an agent from exercising either apparent or implied authority to reject UM/UIM coverage on behalf of a principal. Turning to the facts of this case, the court concluded that the evidence presented at trial established that respondent Johnson delegated to his friend the task of purchasing insurance for their jointly owned car and that, in undertaking this task, the friend had implied authority to reject, and did in fact reject, UM/UIM coverage on Johnson’s behalf. Based on this conclusion, the court found it unnecessary to address the first question presented. The court thus reversed the court of appeals’ judgment and remanded the case for further proceedings consistent with this opinion.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: CCIOA Permits Developer to Retain Right of Consent to Declaration Amendments

The Colorado Supreme Court issued its opinion in Vallagio at Inverness Residential Condominium Association, Inc. v. Metropolitan Homes, Inc. on Monday, June 5, 2017.

Colorado Common Interest Ownership Act—Declaration Amendments—Arbitration Agreements—Colorado Consumer Protection Act Claims.

This case concerned whether (1) the Colorado Common Interest Ownership Act, C.R.S. §§ 38-33.3-101 to -402, permits a developer–declarant to retain a right of consent to amendments to a provision of a common interest community’s declaration mandating arbitration of construction defect claims, and (2) the Colorado Consumer Protection Act, C.R.S. §§ 6-1-101 to -1121, precludes arbitration of claims asserted pursuant to that Act. Answering the first question in the affirmative and the second in the negative, the supreme court affirmed the court of appeals’ judgment requiring arbitration of the claims at issue and remanded the case for further proceedings consistent with this opinion.

Summary provided courtesy of The Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 6/15/2017

On Thursday, June 15, 2017, the Tenth Circuit Court of Appeals issued no published opinion and one unpublished opinion.

Gustafson v. Luke

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

Colorado Supreme Court: Crim. P. 32 Does Not Authorize Withdrawal of Guilty Plea After Completion of Deferred Judgment

The Colorado Supreme Court issued its opinion in People v. Corrales-Castro on Monday, June 5, 2017.

Criminal Law—Withdrawal of Guilty Plea—Crim.P. 32(d)—Guilty Pleas—Ineffective Assistance of Counsel—Deferred Judgment.

Osvaldo Corrales-Castro pleaded guilty to criminal impersonation and received a one-year deferred judgment. He successfully complied with the terms of the deferred judgment, and in May 2010, the court withdrew his guilty plea and the charge was dismissed with prejudice pursuant to C.R.S. § 18-1.3-102(2), which provides that, upon “full compliance with [the conditions of a deferred judgment],” the guilty plea previously entered “shall be withdrawn and the charge upon which the judgment and sentence of the court was deferred shall be dismissed with prejudice.” In 2013, Corrales-Castro filed a motion to withdraw his guilty plea pursuant to Crim. P. 32(d), which authorizes “a motion to withdraw a plea of guilty . . . before sentence is imposed or imposition of sentence is suspended.” The district court denied the motion and the court of appeals reversed, holding that Crim. P. 32(d) authorizes the withdrawal of an already withdrawn plea. The supreme court held that the plain terms of Rule 32(d) require a plea to exist for it to be withdrawn. Therefore, Crim. P. 32(d) does not authorize withdrawal of Corrales-Castro’s plea. Accordingly, the supreme court reversed the court of appeals’ judgment.

Summary provided courtesy of The Colorado Lawyer.