May 19, 2013

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Colorado Court of Appeals: Evidence of SANE Examination and Examiner’s Report Admissible in Sexual Assault Case

May 1, 2013 by Leave a Comment

The Colorado Court of Appeals issued its opinion in People v. Tyme on Thursday, April 25, 2013.

Sexual Assault—Hearsay—Sexual Assault Nurse Examiner—Medical Diagnosis or Treatment.

Defendant Justyn E. Tyme appealed the trial court’s judgment of conviction entered on jury verdicts finding him guilty of sexual assault, third-degree assault, and false imprisonment. The judgment was affirmed.

This case stems from Tyme’s sexual assault of the victim, G.A. Five days after the assault and at the request of law enforcement, G.A. submitted to a Sexual Assault Nurse Examiner (SANE) examination that was performed by Sue Goebel. At trial, Goebel testified, as an expert witness, about information she had learned from G.A. during the exam. Both Goebel’s testimony and her report were allowed as evidence at trial.

On appeal, Tyme contended that the trial court abused its discretion in concluding that both the SANE testimony and her report were admissible under the medical diagnosis or treatment hearsay exception because the purpose of the SANE examination was to collect evidence, not to treat or diagnose the victim. Generally, statements made for purposes of medical diagnosis or treatment, including a SANE exam, are admissible if (1) the statement is reasonably pertinent to treatment or diagnosis; and (2) the content of the statement is such that it is reasonably relied on by a physician in treatment or diagnosis. Here, Goebel testified that she relied on the medical history to guide her examination and used it “to diagnose and treat,” thereby satisfying the first prong of the reliability test. She also testified that SANEs normally rely on similar histories to “guide the[ir] diagnosis and treatment,” thereby demonstrating the reasonableness of her reliance on G.A.’s statements in satisfaction of the second prong of the reliability test. Accordingly, the trial court did not abuse its discretion in admitting Goebel’s testimony or her report.

Summary and full case available here.

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Colorado Court of Appeals: Defendant’s Conviction Affirmed But Case Remanded for Longer Sentence

April 30, 2013 by Leave a Comment

The Colorado Court of Appeals issued its opinion in People v. Lahr on Thursday, April 25, 2013.

Aggravated Robbery—Other Act Evidence—Relevance—Illegal Sentence—Extraordinary Risk Crime.

Defendant Jacob John Lahr appealed the judgment of conviction entered on jury verdicts finding him guilty of aggravated robbery, menacing, aggravated motor vehicle theft, possession of a controlled substance, and possession of a weapon by a previous offender (POWPO). The People appealed the district court’s sentence. The judgment was affirmed, the aggravated robbery sentence was vacated, and the case was remanded for entry of a corrected sentence.

According to the prosecution’s evidence, defendant stole a car, robbed a Motel 6, robbed a Fascinations store, and later stole an SUV. Defendant contended that the district court erred by incorrectly applying the second part of the Spototest for admission of other act evidence. [See People v. Spoto, 795 P.2d 1314, 1319 (Colo. 1990).] Defendant’s theory of the case was that another person committed both the Motel 6 robbery and the SUV theft. However, there were sufficient similarities between the two robberies. Therefore, the district court did not abuse its discretion when it ruled that evidence of the Fascinations robbery was logically relevant, because it tended to make more probable the material fact that defendant was the person who robbed the Motel 6 and/or stole the SUV.

Defendant also contended that the district court erred by denying his motion for a new trial. A verdict form regarding the POWPO charge against defendant, which was part of a bifurcated case, was inadvertently given to the jury. The court told the jurors that the POWPO verdict form had been included in error and asked them to hand their copies to the bailiff. Assuming the court gave an instruction to disregard the form, the reference was clearly not so prejudicial that any resulting prejudice could not have been remedied by the instruction. Further, even if the court did not so instruct, the reference was not so prejudicial that the drastic remedy of declaring a mistrial was required. Therefore, any error was harmless, and the district court did not abuse its discretion by denying defendant’s motion for a new trial.

The People contended that the district court imposed an illegal sentence for defendant’s aggravated robbery conviction. Aggravated robbery is a class 3 felony and is an extraordinary risk crime that is subject to the modified presumptive sentencing range. The court imposed a forty-eight-year prison sentence for defendant’s aggravated robbery conviction. However, CRS § 18-1.3-801(2) required a sentence of sixty-four years for a defendant convicted of aggravated robbery and adjudicated a habitual criminal. Therefore, the district court’s sentence for the aggravated robbery conviction was illegal and the case was remanded to the district court for resentencing.

Summary and full case available here.

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Colorado Court of Appeals: Reliance on Previous Exclusionary Order by Trial Court Error Where Balancing Test Under CRE 403 Not Performed

April 29, 2013 by Leave a Comment

The Colorado Court of Appeals issued its opinion in People v. Osorio-Bahena on Thursday, April 25, 2013.

Sexual Assault Against an At-Risk Adult—Rape Shield Statute—Prior Sexual Conduct—Mental Capacity—Competency—Involuntary Psychiatric Evaluation.

Defendant appealed the judgment of conviction entered on jury verdicts finding him guilty of two counts of attempted sexual assault. The judgment was affirmed.

St. Paul’s House is a residential-care facility for boys with developmental and mental health issues. In 2007, S.S., an 18-year-old resident of the facility with the mental capacity of a 5-year-old, reported that defendant, who worked at the facility, had sexually assaulted him. Defendant was charged with sexual assault against an at-risk adult.

Defendant contended that the exclusion of evidence that described S.S.’s prior incidents of oral and anal sex, offered to explain an alternative source of S.S.’s sexual knowledge, was an abuse of discretion. Evidence of S.S.’s prior sexual conduct was not relevant to show an alternative source of S.S.’s sexual knowledge because (1) S.S.’s limited mental capacity may have given rise to an inference of a lack of sexual knowledge; (2) evidence of prior incidents may show an alternative source of sexual knowledge, regardless of whether the prosecution injects the issue into the trial; and (3) the dissimilarities here did not tend to negate such knowledge. The case was remanded to the trial court to evaluate the admissibility of the evidence under CRE 403.

Defendant contended that the trial court erred by denying his motion for an involuntary psychiatric competency evaluation of S.S. and finding that S.S. was competent to testify. The pretrial testimony by the director of the facility and the videotaped interviews of S.S. both support the trial court’s findings that S.S. could recall the incident and understand the difference between the truth and a lie. Accordingly, the trial court did not abuse its discretion in refusing to order an involuntary examination or finding S.S. competent to testify.

Defendant also contended that the trial court erred by allowing the jury to view a photograph of his bare chest, taken during trial but outside the jury’s presence. He asserted that taking the photograph violated Crim.P. 41.1 and his Fifth Amendment right against self-incrimination. The Court ruled that the photograph was relevant merely to support S.S.’s statements about defendant, and thus rejected defendant’s assertions.

Defendant further argued that the trial court erred when it rejected his request to allow his wife to testify that he was uncircumcised. However, because S.S. was never asked about this particular fact, the evidence was not relevant.

Summary and full case available here.

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Colorado Court of Appeals: Other Bad Act Evidence Admissible to Show Knowledge But Conviction Reversed on Fourth Amendment Grounds

March 18, 2013 by Leave a Comment

The Colorado Court of Appeals issued its opinion in People v. Pollard on Thursday, March 14, 2013.

Possession of More Than One Gram of Cocaine—Habitual Offender for Sentencing—Other Bad Acts Evidence—Fourth Amendment Refusal to Consent to Search.

Defendant appealed the judgment of conviction entered on a jury verdict finding him guilty of possession of more than one gram of cocaine. He also appealed his adjudication as a habitual offender, for sentencing purposes. The judgment was reversed and the case was remanded for a new trial.

The police spotted defendant’s unoccupied car at 3:00 a.m. in an otherwise vacant parking lot in a park. An officer, looking inside the car, noticed on the center console a plastic bag he believed to be crack cocaine. When defendant returned to his vehicle with a female friend, he told the police that the car was his and the substance was probably bubble gum.

Defendant refused to give the police consent to search his car. He was arrested, and the bag—containing 2.66 grams of cocaine—was seized from the vehicle. Drug paraphernalia (a crack pipe, a glass vial, and two re-sealable cloth bags) were found only in his female friend’s purse.

At trial, defendant asserted the cocaine belonged to his friend and that he did not know it was in his car. The friend testified that the cocaine belonged to her, she had brought it with her in her purse, defendant didn’t know she had it, and she had put it on the car console only after defendant had gotten out of the car. Defendant argued he was charged and prosecuted due to racial stereotyping—that because he is black and his friend is a white woman, he was using the cocaine to obtain sex from her.

For purposes of showing motive, knowledge, identity and absence of mistake or accident, the prosecution presented evidence of a drug transaction that occurred fourteen months after the charges arose in this case. In that case, defendant sold crack cocaine to a woman in a grocery store parking lot. He was apprehended shortly thereafter and crack cocaine was recovered from the center console of his car.

The jury convicted defendant as charged. The trial court adjudicated him as a habitual offender and sentenced him to twenty-four years’ incarceration.

On appeal, defendant argued it was error to admit evidence of his subsequent drug transaction with the woman in the grocery store parking lot. The Court of Appeals disagreed. Defendant objected that the evidence was inadmissible under CRE 404(b). An abuse of discretion by a trial court will be found only on a showing that the court misconstrued or misapplied the law or otherwise reached a manifestly arbitrary, unreasonable, or unfair result. Evidence of other bad acts is inadmissible if its relevance depends only on an inference that the person has a bad character and acted in conformity therewith. Under CRE 410, 403, and 404(b), a trial court may admit evidence of a defendant’s other bad acts if (1) the evidence is offered for a proper purpose; (2) the evidence is logically relevant to a material issue in the case; (3) its relevance is independent of the intermediate inference that the defendant has a bad character; and (4) its probative value is not substantially outweighed by the danger of unfair prejudice. The Court concluded that the trial court acted within the scope of its discretion in admitting evidence of defendant’s subsequent possession and distribution of crack cocaine, particularly for the purpose of establishing his knowing possession in this case.

Defendant also argued that reversal was required because the prosecution improperly elicited evidence of, and commented on, his refusal to consent to a search of his car. The Court agreed. The prosecution repeatedly elicited evidence from the officer on the scene that when asked to consent to search of his car, defendant responded by saying, “Nobody searches my car.” Because defendant did not object to this and related statements, reversal was warranted only if it constituted plain error. The Court found it did. The Fourth Amendment gives a defendant a constitutional right to refuse to consent to entry and search. Evidence of a person’s refusal to consent to a warrantless search may not be used to support an inference of guilt. It is even more egregious to argue to the jury that such evidence is probative of guilt. The error in admitting this type of evidence in this case was so clear cut that the trial judge should have been able to avoid it without benefit of objection. Moreover, this was a substantial error because it was seriously prejudicial. Accordingly, the Court reversed defendant’s conviction and the case was remanded for a new trial.

Summary and full case available here.

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Colorado Court of Appeals: Juror’s Racially Biased Statements Made During Deliberations Were Personal Opinion and Not Outside Influence

November 13, 2012 by Leave a Comment

The Colorado Court of Appeals issued its opinion in People v. Pena-Rodriguez on Thursday, November 8, 2012.

Jury—Racial Bias—Deliberations—Voir Dire—Misrepresentation—CRE 606(b)—Unconstitutional as Applied.

Defendant appealed the judgment of conviction entered on a jury verdict finding him guilty of unlawful sexual contact and harassment. The judgment was affirmed.

Defendant contended that the trial court abused its discretion by not properly addressing allegations of Juror 11’s racial bias and denying defendant’s motion for new trial. After the jury returned its verdict and was dismissed, two jurors told defense counsel that a juror—later identified as Juror 11—had made racially biased statements during deliberations. Those two jurors completed affidavits describing the statements of racial bias, which were shared with the court. However, to obtain a new trial based on juror misrepresentation, counsel must have asked specific questions about the subject of the misrepresentation during voir dire, which defendant failed to do in this case. Juror 11 inadvertently misrepresented his law enforcement background during voir dire; however, his employment in law enforcement ended more than four decades before trial, and defendant failed to prove this misrepresentation resulted in actual bias. Therefore, the trial court did not abuse its discretion in denying defendant’s motion for new trial.

Defendant also contended that, because the statements of bias attributed to Juror 11 in the juror affidavits showed deliberations were corrupted by extraneous prejudicial information or an outside influence, he is entitled to a new trial. CRE 606(b) broadly prevents attacks on verdicts using information from jury deliberations. Because the statements at issue illustrate Juror 11’s beliefs and opinions and not any outside influence, the juror affidavits describing statements of racial bias made during deliberations do not fall under the outside influence exception to 606(b). Thus, because the juror affidavits were inadmissible, the record contains no admissible evidence of Juror 11’s bias. Furthermore, because defendant failed to conduct specific voir dire on racial bias, his challenge as to whether CRE 606(b) was unconstitutional as applied failed.

Summary and full case available here.

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Colorado Court of Appeals: Defendant Opened the Door to Hearsay Testimony and Therefore Waived His Confrontation Right

November 12, 2012 by Leave a Comment

The Colorado Court of Appeals issued its opinion in People v. Rogers on Thursday, November 8, 2012.

Hearsay—Constitutional Right of Confrontation—Waiver.

Defendant appealed his jury conviction for possession of a weapon by a prior offender. The judgment was affirmed.

A man picked up defendant at a local motel. A police officer pulled over the driver for failing to use his signal device when making a turn. The officers on scene discovered defendant had three active warrants and placed him under arrest. Relying on the driver’s statements that defendant threw a gun in the back seat, the People charged defendant with possession of a weapon by a prior offender.

On appeal, defendant contended that his conviction should be reversed because the trial court’s admission of testimonial hearsay statements by the driver, who did not appear at trial, violated his constitutional right of confrontation. Defendant’s counsel introduced the driver’s hearsay statement during the cross-examination of the arresting officer to elicit evidence that the driver knew of the gun and had tried to conceal it. This opened the door to the prosecution’s redirect examination and the admission of statements implicating defendant. Therefore, because defendant opened the door by questioning the officer about the information he received from the driver, defendant waived his right to confrontation.

Summary and full case available here.

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Colorado Court of Appeals: Judgment Reversed in Bias-Motivated Crime Case Because Officer’s Testimony Constituted Expert Opinion

November 12, 2012 by Leave a Comment

The Colorado Court of Appeals issued its opinion in People v. Ramos on Thursday, November 8, 2012.

Bias—Third-Degree Assault—Lay Witness—Expert Testimony—DNA Sample—Crim.P. 41.1(c) and 16(II)(a)(1).

Defendant appealed the judgment of conviction entered on a jury verdict finding him guilty of committing a bias-motivated crime and third-degree assault. The judgment of conviction was reversed and the case was remanded to the trial court.

While riding in the front passenger seat of a car driven by his girlfriend, defendant turned to the back seat, where victim R.L. was riding, and made bias-related comments to her. Defendant then proceeded to assault R.L., punching her several times in the face and lower neck.

On appeal, defendant asserted that the trial court abused its discretion in allowing a police detective to testify as a lay witness regarding blood spatter and transfer evidence that defendant left on R.L.’s clothing. When an officer’s opinions require the application of, or reliance on, specialized skills or training, the officer must be qualified as an expert before offering such testimony. Here, although the detective had not been qualified as an expert, (1) the detective testified about his extensive experience investigating cases involving blood; (2) the detective used the technical terms “spatter” and “transfer” and defined them for the jury; (3) the prosecutor advised the court that the detective was testifying “as to his training and experience,” and used that phrase four times in questioning the detective; and (4) the detective’s testimony was not based on his personal knowledge or investigation of this case. The trial court abused its discretion by allowing the detective to testify as a lay witness regarding blood spatter and blood transfer, and this error was not harmless. Therefore, the judgment was reversed and the case was remanded for a new trial.

Defendant also contended that the trial court erred in compelling him to provide a DNA sample, because the People did not provide an affidavit setting forth the grounds to support an order to collect evidence pursuant to Crim.P. 41.1(c). Based on the plain language of Crim.P. 16(II)(a)(1), the trial court did not need an affidavit or showing of special circumstances to order defendant to provide non-testimonial evidence. Therefore, the trial court did not err in this regard.

Summary and full case available here.

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Colorado Court of Appeals: Multiple Instances of Hearsay Permissible Under Constitution and Evidence Rules

October 29, 2012 by Leave a Comment

The Colorado Court of Appeals issued its opinion in People v. Phillips on Thursday, October 25, 2012.

First-Degree Murder—Child Abuse Resulting in Death—Hearsay—Federal Confrontation Clause—State Confrontation Clause—Batson Challenge—Jury Selection—Consecutive Sentences—Evidence.

Defendant appealed his convictions for first-degree murder, child abuse resulting in death, and tampering with physical evidence. The convictions were affirmed, the sentences were reversed in part, and the case was remanded.

Defendant’s convictions stemmed from evidence that defendant starved his stepson, C.G., to death in a linen closet in his apartment. Defendant argued that the trial court violated his federal and state Confrontation Clause rights by permitting his 5-year-old son, D.P., to testify via closed circuit television (CCTV). D.P.’s therapist testified that D.P. would be traumatized psychologically if he were made to testify in front of defendant. Further, the court allowed defense counsel to cross-examine D.P. fully, and defendant had two-way communication with counsel during direct and cross-examination. Therefore, the court did not violate defendant’s federal and state Confrontation Clause rights by allowing D.P. to testify via CCTV.

Defendant also argued that the trial court violated his federal and state Confrontation Clause rights, and state hearsay rules, by admitting various out-of-court statements made by defendant’s girlfriend, Sarah Berry; C.G.; and D.P. Statements that Berry made in a voicemail left on defendant’s cell phone, which relayed what C.G. and D.P. said, did not violate state hearsay rules, because C.G.’s statement to D.P. was a command, offered as circumstantial evidence that C.G. was extremely thirsty and, therefore, not covered by the hearsay rule. D.P.’s statement, relaying C.G.’s statement to Berry, was admissible for the non-hearsay purpose of showing its effect on Berry as the listener. Finally, Berry’s statement to defendant, in which she relayed D.P.’s (and thus C.G.’s) statement, was admissible as a non-hearsay statement by a co-conspirator under CRE 801(d)(2)(E). Therefore, the court did not abuse its discretion in admitting the voicemail into evidence.

Before his death, C.G. made various statements to the public school employees, to the police officer during the welfare check, and to the caseworker. The questioning of C.G., however, was for the purpose of determining his health and welfare, and his statements related to his then existing physical condition, which fell within a hearsay exception and were admissible. Additionally, some of C.G.’s statements to the caseworker were for a non-hearsay purpose of showing that C.G. had been coached to change his story.

Defendant’s rights were not violated in admitting the statements that D.P. made to a mental health therapist during therapy sessions after C.G.’s death. D.P. testified via CCTV and defense counsel had the opportunity to cross-examine him on any statements he had made to the therapist.

Any statements erroneously admitted were harmless beyond a reasonable doubt. There was no reasonable possibility that the admission of these statements affected the guilty verdict because the other properly admissible evidence was overwhelming that defendant knowingly starved C.G. to death in the closet.

Defendant also contended that the trial court erred in denying his Batson challenge to the prosecutor’s allegedly discriminatory use of peremptory challenges [Batson v. Kentucky, 476 U.S. 79, 89 (1986)]. Although defendant made out a prima facie case because no African American jurors remained on the panel after the prosecutor used his peremptory challenges to dismiss them, the prosecution provided permissible race-neutral explanations for his challenges, and defendant was given an opportunity to reply. Therefore, the trial court did not abuse its discretion in denying defendant’s Batson challenge.

Defendant further argued that the trial court erred in imposing consecutive sentences for first-degree murder and child abuse resulting in death. Because the evidence presented at trial supports no reasonable inference other than that defendant’s convictions of first-degree murder and of child abuse resulting in death were based on identical evidence, the trial court erred in imposing consecutive sentences for these convictions. Hence, the sentences were reversed in part and the case was remanded to correct the mittimus to reflect concurrent sentences on defendant’s convictions of first-degree murder and of child abuse resulting in death.

Summary and full case available here.

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Hearsay, the Confrontation Clause, and the Colorado Rules of Evidence

October 17, 2012 by Leave a Comment

Hearsay is governed by Article VIII of the Colorado and Federal Rules of Evidence. In criminal cases, the use of hearsay by the government against the defendant is also governed by the Confrontation Clause. Colorado Rule of Evidence 802, the hearsay rule, provides that “[h]earsay is not admissible except as provided by these rules or by the civil and criminal procedural rules applicable to the courts of Colorado or by any statutes of the State of Colorado.” The general ban on hearsay is premised upon the same beliefs that underlie the Confrontation Clause in the federal and Colorado constitutions, namely, that the reliability of a statement can be most accurately determined when the declarant comes before the fact-finder in person, testifies under oath, and is tested by cross-examination.

Most hearsay testimony is admitted under one of the hearsay exceptions. The exceptions to the general ban are usually premised on a belief that the circumstances surrounding the making of certain types of statements satisfy the reliability concerns that gave rise to the general ban.

CRE 803 enumerates 23 exceptions to the hearsay rule for which the availability of the declarant is immaterial. These include spontaneous present sense impression, excited utterance, recorded recollection, records of regularly conducted activity, public records, and more. Statements can fall under multiple exceptions, such as excited utterance and spontaneous present sense impression.

Rule 804 lists hearsay exceptions that apply when the declarant is unavailable. “Unavailable” is defined and the exceptions are listed, including previous testimony, statements against interest, and statements of personal or family history.

CRE 807 is the “catch-all” or “residual” hearsay exception. It was developed after a 1984 Colorado Supreme Court decision, W.C.L. v. People, 685 P.2d 176 (Colo. 1984), in which the statements of a child victim of sexual assault did not fall into any of the specifically enumerated hearsay exceptions. Rule 807 was carved out of CRE 803(24) and 804(b)(5). The residual exception contained in CRE 807 is an under-utilized tool for admitting hearsay statements that do not fit neatly into any of the specific exceptions set out in the rules of evidence.

It is important for every litigator to know and use the hearsay rules, both as the proponent of the hearsay testimony and in opposition. Visit the CLE offices on Tuesday, October 23, when Pat Furman, law professor at the University of Colorado, will present on “Using, Misusing, and Abusing the Hearsay Rules.”

CLE Program:Using, Misusing, and Abusing the Hearsay Rules

This CLE presentation will take place on Tuesday, October 23, at 12:00 p.m. Participants may attend live in our classroom or watch the live webcast.

If you can’t make the live program or webcast, the program will also be available as a homestudy in two formats: video on-demand and mp3 download.
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Colorado Court of Appeals: Prosecution Does Not Have to Disprove Defendant’s Affirmative Defense of Duress to Prove Defendant Committed Attempted Aggravated Robbery

September 4, 2012 by Leave a Comment

The Colorado Court of Appeals issued its decision in People v. Doubleday on August 30, 2012.

Felony Murder—Attempted Aggravated Robbery—Predicate Offense—Special Interrogatory—Duress—Second-Degree Murder—Challenge for Cause—Prosecutorial Misconduct.

Defendant appealed from the judgment of conviction entered on jury verdicts finding him guilty of first-degree felony murder and second-degree murder. The judgment was affirmed and the case was remanded.

Defendant shot and killed a clerk at a convenience store in December 2006. The jury found defendant not guilty of attempted aggravated robbery based on duress, and guilty of second-degree murder and felony murder.

Defendant contended that his felony murder conviction must be vacated because the jury acquitted him of attempted aggravated robbery, the predicate offense for the felony murder charge. The predicate offense element of felony murder requires proof beyond a reasonable doubt that the defendant committed or attempted to commit the predicate offense, and not that the defendant was convicted of the predicate offense. Here, the prosecution met the burden of proving that defendant committed the predicate offense—attempted aggravated robbery. Additionally, the prosecution does not have to disprove defendant’s affirmative defense of duress to prove that defendant committed attempted aggravated robbery. The jury’s verdict convicting defendant for felony murder was affirmed.

Defendant also argued that the trial court violated CRE 606(b) by giving a special interrogatory. The special interrogatory instructed the jurors to complete it only if they found defendant not guilty of the predicate offense; thus, it did not usurp the jury’s duty to deliver a general verdict. Additionally, the special interrogatory was necessary to ensure the validity of a guilty verdict on the felony murder charge. Further, the jury received and completed the special interrogatory before it announced its verdict; thus, it was not a “post-verdict statement.” Therefore, the trial court properly exercised its discretion by giving the special interrogatory relating to the attempted aggravated robbery charge.

Defendant further contended that the trial court erred by failing to instruct the jury that duress is a defense to felony murder and second-degree murder. Felony murder is a class 1 felony, and CRS § 18-1-708 provides that duress is not a defense to class 1 felonies. Thus, duress is not a defense to felony murder. Further, defendant entered the convenience store alone and there was no evidence that any threats motivated defendant to shoot the clerk. Therefore, there was no evidence to support a duress instruction on the second-degree murder charge. Accordingly, the trial court did not err by refusing to instruct the jury that duress was a defense to either felony murder or second-degree murder.

Defendant contended that the trial court erred by denying his challenge for cause to a potential juror because she consistently expressed doubt about her ability to be fair and impartial. Although the juror expressed some doubt about her ability to be fair and impartial and said that she might be biased against defendant, she also repeatedly said that she thought she could perform her duties and that she hoped she would be able to keep an open mind while hearing the evidence. Therefore, the trial court did not abuse its discretion in denying defendant’s challenge for cause.

Defendant also argued that the prosecution committed prosecutorial misconduct. However, the prosecutor’s voir dire statements on reasonable doubt did not lessen the prosecution’s burden; the prosecutor did not misstate the law; and the prosecution did not ask the jurors to disregard the presumption of innocence. Therefore, there were no grounds for reversal.

Summary and full case available here.

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Colorado Court of Appeals: Detective Who Interrogated Defendant in Spanish Is Permitted to Testify About Translation Without Being Certified as an Interpreter

July 9, 2012 by Leave a Comment

The Colorado Court of Appeals issued its decision in People v. Munoz-Casteneda on July 5, 2012.

Intent to Distribute a Schedule II Controlled Substance—Possession of Drug Paraphernalia—Fact Witness—Interpreter—Prosecutorial Misconduct.

Defendant appealed from the judgment of conviction entered on jury verdicts finding him guilty of possession with intent to distribute a schedule II controlled substance (cocaine) and possession of drug paraphernalia. The judgment was affirmed.

Defendant contended that the trial court erred by allowing the detective who interrogated him in Spanish to translate that recorded interrogation during his trial testimony without meeting the requirements for interpreters set forth in CRE 604 and 702. The detective had personal knowledge of the relevant conversation. Therefore, he was a fact witness and was permitted to testify without first being certified as an interpreter.

Defendant also contended that the prosecutor impermissibly introduced the issue of Mexican drug trafficking organizations into the trial through his voir dire questioning of prospective jurors and his direct examination of his expert witness. Although the prosecution’s comments were improper (because this case did not involve drug trafficking organizations or allegations of complicity), the misconduct does not warrant reversal in light of the overwhelming evidence of defendant’s guilt.

Summary and full case available here.

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Colorado Supreme Court: Public Utilities Commission Did Not Abuse Discretion by Striking Substantial Portions of Testimony

June 26, 2012 by Leave a Comment

The Colorado Supreme Court issued its opinion in Glustrom v. Colorado Public Utilities Commission on June 25, 2012.

Recovery of Costs—Unjust and Unreasonable Rate Order—“Used and Useful”—Exclusion of Testimony.

In 2005, with the approval of the Public Utilities Commission (PUC), the Public Service Company of Colorado (Xcel) began constructing a coal-fired electric power unit known as Comanche 3. When Xcel sought to recover a portion of its construction costs nearly four years later during a rate proceeding, Leslie Glustrom intervened. Glustrom sought to introduce testimony that Xcel acted improperly and, consequently, should not recover its costs. The PUC excluded most of her testimony, a ruling that Glustrom challenged. Glustrom separately challenged the depreciation rate and the possibility that Comanche 3 might not be “used and useful” at the time rates went into effect. The PUC denied her challenges, and the district court affirmed.

The Supreme Court held that the PUC did not abuse its discretion when it struck substantial portions of Glustrom’s testimony pursuant to the Colorado Rules of Evidence. Further, the depreciation rate approved by the PUC was established pursuant to law and in accordance with the evidence. The Court also held that the PUC was free to exercise its discretion in departing from a strict application of the “used and useful” principle. Glustrom failed to meet her burden in showing why such a departure here would result in a rate that is unjust and unreasonable in its consequences.

Summary and full case available here.

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