April 26, 2017

Colorado Court of Appeals: No Error in Joining Trials Where CRE 404(b) Would Have Allowed Admission of Other Act Evidence

The Colorado Court of Appeals issued its opinion in People v. Raehal on Thursday, February 23, 2017.

Bradford Steven Raehal was living in the basement of S.F.’s family home when he was arrested for failing to register as a sex offender. Shortly after his arrest, S.F. reported that Raehal had sexually assaulted him on multiple occasions and had taken pictures of the assaults with a grey or silver digital camera. A search executed pursuant to a warrant found the digital camera, which contained previously deleted images of Raehal assaulting S.F.

J.H., another minor who lived at S.F.’s house, first denied that Raehal had assaulted him, but later reported three separate incidents of abuse. Although the incidents differed from the incidents with S.F., both boys reported that Raehal gave them video games and rubbed lotion on their backs before the assaults, which occurred in the same location for both boys.

At first, the trials for the acts on S.F. and J.H. were separate, but the district court joined the trials over defense counsel’s objection. A jury convicted Raehal of two counts of sexual assault on a child by one in a position of trust (one for acts against S.F. and one for acts against J.H.), two counts of sexual assault on a child as part of a pattern of abuse (one for acts against S.F. and one for acts against J.H.), and two counts of sexual exploitation of a child for the possession and production of sexually exploitative material relating to the pictures taken of S.F. In a separate proceeding, he was adjudicated a habitual sex offender against children. The trial court designated him a sexually violent predator and sentenced him to 112.5 years to life.

On appeal, Raehal first contended that the trials were improperly joined. Although he admitted that S.F.’s testimony would have been admissible under CRE 404(b) in J.H.’s trial, he argued the photos depicting the assaults of S.F. would not have been admissible. The court of appeals found no abuse of discretion. The court disagreed that the photographs should have been separately analyzed, and found the Spoto test inapplicable because the photos were admitted to corroborate S.F.’s testimony, not to prove a common scheme or plan. The court of appeals similarly found no error in the court’s failure to give a limiting instruction as to the photos, finding that any error could not have cast serious doubt on the reliability of the convictions.

Raehal next contended that the contents of the digital camera should have been suppressed because the examination of the camera occurred outside the 14-day window in the search warrant. The court of appeals again disagreed, finding that the camera was seized within the time limit and was not altered between the seizure and examination, so there was no error.

Raehal also contended that evidence of his prior assault of two other boys should have been rejected under CRE 404(b), but the court of appeals again disagreed, finding that although the prosecutor’s statements were somewhat misleading, there was no doubt that Raehal was convicted of only one charged offense.

Finally, Raehal argued, and the prosecution conceded, that the trial court erred in finding him a sexually violent predator without making specific findings. The court of appeals remanded for further findings on the sexually violent predator designation.

The court of appeals affirmed in part, reversed in part, and remanded for further proceedings.

Colorado Supreme Court: Testimony that Could Not Be Offered Without Specialized Knowledge is Expert Testimony

The Colorado Supreme Court issued its opinion in Venalonzo v. People on Monday, February 6, 2017.

 Criminal Trials—Evidence.

In this case, the Colorado Supreme Court considered the admissibility of testimony under  CRE 701 and 702. The court held that in determining whether  testimony is lay testimony under CRE 701 or expert testimony under CRE 702, trial  courts must look to the basis for the opinion. If the witness provides testimony that could be expected to be based on an ordinary person’s experiences or knowledge, then the witness is offering lay testimony. If, on the other hand, the witness provides testimony that could not be offered without specialized experiences, knowledge, or training, then the witness is offering expert testimony. Applying that rule in this case, the court concluded that some portions of a forensic interviewer’s testimony were admissible as lay opinion but that others were inadmissible expert testimony in the guise of lay opinion. The court also addressed the admissibility of testimony under CRE 608(a) and concluded that some of the interviewer’s and the victim’s mother’s testimony was inadmissible under CRE 608(a) as it improperly bolstered the credibility of the child victims.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Officer who Testified About Blood Transfer Should Have Been Qualified as Expert

The Colorado Supreme Court issued its opinion in People v. Ramos on Monday, February 6, 2017.

Criminal Law—Expert Testimony.

This case, like the recently announced case Venalonzo v. People, 2016 CO 9, required the Supreme Court to address the difference between lay and expert testimony. Specifically, it required the court to resolve one issue—whether an ordinary person would be able to differentiate reliably between blood castoff (i.e., blood droplets from waving a hand around) and blood transfer (i.e., blood transferred by physical contact). Applying the test announced in Venalonzo, the court held that an ordinary person would not be able to testify reliably about the difference between blood cast-off and blood transfer. Therefore, the court affirmed the court of appeals’ holding that the trial court abused its discretion by not qualifying the police detective’s blood testimony as expert testimony.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Loss Prevention Director’s Spreadsheet was Admissible Under Business Records Exception

The Colorado Court of Appeals issued its opinion in People v. Flores-Lozano on Thursday, October 20, 2016.

Maria Guadalupe Flores-Lozano was a manager at a fast-food chain. The fast-food chain’s loss prevention director noticed that Flores-Lozano was giving a high number of discounts to customers and suspected that she was pocketing the difference between the amount the customer paid and the discount. He prepared a spreadsheet showing 4400 transactions in which Flores-Lozano gave discounts on cash transactions, calculating the total amount of the suspected theft at $23,320.01. The loss prevention director confronted Flores-Lozano with the spreadsheet and still photos from the chain’s surveillance video, and she admitted she had been stealing from the company. The loss prevention director contacted the police, and Flores-Lozano was charged with theft of over $20,000.

The sole issue at trial was the amount of the theft. The People argued Flores-Lozano should be charged with the total amount calculated by the loss prevention director, but Flores-Lozano countered she should only be charged with the specific instances in which she had admitted guilt, which amounted to less than $500. The trial court disagreed with both parties and ultimately found Flores-Lozano guilty of the lesser included offense of theft of more than $1,000 but less than $20,000.

On appeal, Flores-Lozano contended that the spreadsheet prepared by the loss prevention director constituted impermissible hearsay. The Colorado Court of Appeals concluded that it did contain hearsay, but was admissible under the business records exception to the hearsay rule, CRE 803(6). The court analyzed the five factors of CRE 803(6) and found that the spreadsheet satisfied all the factors. First, the data contained in the spreadsheet was automatically generated at the point of sale. Second, the spreadsheet was prepared by the loss prevention director, a person who indisputably had knowledge of the matters contained in the spreadsheet. Next, the third, fourth, and fifth factors were satisfied by the loss prevention director’s testimony that he regularly conducted investigations of theft within the restaurant chain and regularly prepared and kept spreadsheets of the records in the course of his investigations. The court found that the spreadsheet was properly admitted. Although the loss prevention director testified that he prepared the spreadsheet for litigation, the court was entitled to disregard his testimony.

The judgment was affirmed. Judge Bernard wrote a special concurrence; he would have found that all of the data contained in the spreadsheet was made in the regular course of business.

Colorado Court of Appeals: Note Written by Murder Victim was Testimonial Hearsay

The Colorado Court of Appeals issued its opinion in People v. McFee on Thursday, June 30, 2016.

L.E. was an in-house manager of a residential facility for people with HIV and AIDS. One night, a resident found her lying in a pool of blood in the hallway. By the time police arrived, L.E. was dead. A few months later, police arrested Jonathan McFee, L.E.’s ex-boyfriend, for the murder. At trial, numerous witnesses testified about hearing McFee threaten to kill L.E., and the prosecution introduced an audio recording of a statement muttered by McFee during a break in interviewing that sounded like “I did it. That bitch.” A handwritten note from L.E. was admitted into evidence, which expressed that McFee had threatened to kill her and it was only a matter of time until he succeeded. The jury convicted McFee of first degree murder, and he was sentenced to life in prison without the possibility of parole.

McFee appealed, arguing that testimony of L.E.’s mother, daughter, and cousin about McFee’s intention to kill L.E. were hearsay and were improperly admitted. McFee also argued that the handwritten note was testimonial hearsay that was improperly admitted. The district court determined that the statements of the mother, daughter, and cousin were admissible under CRE 807 (residual exception), and arguably under CRE 803(3) (state of mind exception). The court of appeals agreed with the district court that the statements were properly admitted under CRE 807. The court of appeals found that L.E.’s statements were trustworthy because they were made spontaneously to close family members, they were not self-serving, and L.E. had no motive to lie about McFee’s threats. Additionally, all of the witnesses testified that L.E. seemed afraid when describing the threats. Further, the statements tended to show that L.E.’s and McFee’s relationship was volatile and he had a motive to kill. The court found that the statements were properly admitted.

Next, McFee argued that L.E.’s note was testimonial hearsay and should have been excluded because it violated his Sixth Amendment Confrontation Clause rights. The court of appeals agreed, but found that any error in admitting the note was harmless beyond a reasonable doubt. The court of appeals found that the note was created out of court to substitute for testimony in the event of L.E.’s death and therefore was “testimonial.” And because L.E. was unavailable at trial and McFee had not had prior opportunity for cross-examination, admission of the note violated McFee’s Confrontation Clause rights. However, the court found that any error in admitting the note was harmless beyond a reasonable doubt. Several witnesses testified as to threats McFee had made to kill L.E., McFee’s DNA was on the murder weapon, he had a key to the facility where L.E. lived on his key ring at the time of his arrest, he failed to contact L.E.’s daughter after the murder despite his close relationship with her, and he may have said “I did it” on the audio recording. Given the plentiful evidence of McFee’s guilt, the court found that admission of the note was harmless beyond a reasonable doubt.

The court of appeals affirmed McFee’s conviction.

Colorado Supreme Court: Ethical Prohibition on Paying Witness Contingent Fee Does Not Require Exclusion of Evidence

The Colorado Supreme Court issued its opinion in Murray v. Just In Case Business Lighthouse, LLC on Monday, June 20, 2016.

Contingent Fees for Witnesses—Summary Witness Testimony—Summary Exhibits.

The Supreme Court held that the violation of an ethical rule does not displace the rules of evidence and that trial courts retain the discretion under CRE 403 to exclude the testimony of improperly compensated witnesses. The Court also held that trial courts may allow summary witness testimony if they determine that the evidence is sufficiently complex and voluminous that a summary witness would assist the trier of fact. It further held that in those circumstances, summary witnesses may satisfy CRE 602’s personal knowledge requirement by examining the underlying documentary evidence on which they based their summary testimony. Finally, the Court held that that under CRE 1006, trial courts abuse their discretion when they admit summary charts that characterize evidence in an argumentative fashion rather than simply organize it in a manner helpful to the trier of fact. The Court reversed the Court of Appeals’ holding remanding the case to the trial court, but affirmed on all other issues.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Confrontation Rights Violated when Defendant Not Allowed to Ask Victim About Impairment

The Colorado Court of Appeals issued its opinion in People v. Dunham on Thursday, May 19, 2016.

The victim and his friend were involved in a confrontation in an apartment complex parking lot in the early morning hours of July 8, 2012. At some point, Defendant pointed a gun at the victim and his friend. The confrontation ended when Defendant pointed his gun into the air and fired. After leaving the parking lot, the victim was shot several times at a nearby intersection. The only witnesses besides Victim and Defendant were a husband and wife who saw a man running from the scene of the shooting but could not identify the shooter.

Defendant was charged with attempted first degree murder after deliberation, attempted second degree murder, first degree assault, and a crime of violence sentence enhancer. At trial, defense counsel sought to admit evidence that Victim had consumed methamphetamine the night of the shooting as res gestae evidence under CRE 404(b). The issue arose several times during trial and each time the trial court denied the defense’s request. Defendant was acquitted of the first degree murder charge but convicted on the other charges and sentence enhancer. He appealed, contending the trial court committed constitutional error by denying his requests to question the victim about his methamphetamine use.

The Colorado Court of Appeals found that the trial court erred in finding the evidence was insufficient to allow the jury to consider the matter, and further found that CRE 104(a) governed the relevance of the evidence. The court of appeals found that the evidence was sufficient to allow a jury to consider the statements made by Victim to police and hospital staff regarding his methamphetamine use. The court further found that the error was constitutional because Defendant’s Confrontation Clause rights were violated.

The court reversed and remanded for a new trial on the charges on which Defendant was convicted.

Colorado Court of Appeals: CRE 404(b) Modus Operandi Evidence May Only Be Admitted if Identity in Issue

The Colorado Court of Appeals issued its opinion in People v. Williams on Thursday, April 7, 2016.

In May 2012, the police gave a confidential informant $20 with which to buy cocaine. She went to defendant’s apartment and returned without the money and with a rock of cocaine. She wore a wire during the transaction, but neither party said anything that was definitively related to a drug deal. A week later, police obtained a warrant to search defendant’s apartment and failed to find the $20, cocaine, or any paraphernalia commonly associated with drug dealing. Nevertheless, defendant was charged with distribution of cocaine.

Before trial, the prosecution submitted a CRE 404(b) motion requesting to admit evidence of a drug deal in which defendant had been involved in February 2012. The prosecution asserted the evidence was necessary to establish “common plan, scheme, design, modus operandi, motive, and guilty knowledge,” and to rebut any assertion of mistake or accident. The judge who presided over the pretrial motion, who was not the same judge who presided over the trial, granted the prosecution’s motion, but limited the evidence’s introduction to modus operandi or common plan, scheme, or design.

After hearing evidence regarding the February and May 2012 drug deals, the jury convicted Williams on the May deal. He appealed, contending the court erred in allowing the prejudicial CRE 404(b) evidence. On appeal, the court of appeals found that modus operandi evidence should only be admitted when identity is at issue, except in domestic violence and sexual assault cases governed by statute. Because in this case defendant’s identity was not at issue, the trial court erred in admitting the prejudicial evidence as modus operandi evidence. The court further noted that even if modus operandi evidence were allowed in this type of case, it would not have admitted the evidence here because the February drug deal lacked striking similarities with the May drug deal.

Defendant’s conviction was reversed and the case was remanded for a new trial.

New Rule 502 Added to Colorado Rules of Evidence

The Colorado Supreme Court issued Rule Change 2016(03), adopted and effective March 22, 2016, adding a new Rule 502 to the Colorado Rules of Evidence. Rule 502, “Attorney-Client Privilege and Work Product; Limitations on Waiver,” addresses disclosures of communications covered by the attorney-client privilege or work product doctrine. The rule is effective March 22, 2016. The rule is available below or on the State Judicial website.

Rule 502. Attorney-Client Privilege and
Work Product; Limitations on Waiver

The following provisions apply, in the circumstances set out, to disclosure of a communication or information covered by the attorney-client privilege or work-product protection.

(a) Disclosure Made in a Colorado Proceeding or to a Colorado Office or Agency; Scope of a Waiver. When the disclosure is made in a Colorado proceeding or to an office or agency of a Colorado state, county, or local government and waives the attorney-client privilege or work- product protection, the waiver extends to an undisclosed communication or information in a Colorado proceeding only if:
(1) the waiver is intentional;
(2) the disclosed and undisclosed communications or information concern the same subject matter; and
(3) they ought in fairness to be considered together.

(b) Inadvertent Disclosure. When made in a Colorado proceeding or to an office or agency of a Colorado state, county, or local government, the disclosure does not operate as a waiver in a Colorado proceeding if:
(1) the disclosure is inadvertent;
(2) the holder of the privilege or protection took reasonable steps to prevent disclosure; and
(3) the holder promptly took reasonable steps to rectify the error, including (if applicable) following C.R.C.P. 26(b)(5)(B).

(c) Disclosure Made in a Federal or other State Proceeding. When the disclosure is made in a proceeding in federal court or the court of another state and is not the subject of a court order concerning waiver, the disclosure does not operate as a waiver in a Colorado proceeding if the disclosure:
(1) would not be a waiver under this rule if it had been made in a Colorado proceeding; or
(2) is not a waiver under the law governing the state or federal proceeding where the disclosure occurred.

(d) Controlling Effect of a Court Order. A Colorado court may order that the privilege or protection is not waived by disclosure connected with the litigation pending before the court – in which event the disclosure is also not a waiver in any other proceeding.

(e) Controlling Effect of a Party Agreement. An agreement on the effect of disclosure in a Colorado proceeding is binding only on the parties to the agreement, unless it is incorporated into a court order.

(f) Definitions. In this rule:
(1) “attorney-client privilege” means the protection that applicable law provides for confidential attorney-client communications; and
(2) “work-product protection” means the protection that applicable law provides for tangible material (or its intangible equivalent) prepared in anticipation of litigation or for trial.

For all of the Colorado Supreme Court’s adopted and proposed rule changes, click here.

Comment Period Open for Proposed Change to Colorado Rules of Evidence

The Colorado Supreme Court announced a proposed rule change to the Colorado Rules of Evidence. The change would add a new Rule 502, “Attorney-Client Privilege and Work Product; Limitations on Waiver.” The new rule discusses waiver of the attorney-client privilege and work product doctrine as applied to disclosures in Colorado proceedings or Colorado offices or agencies, and in federal proceedings. The rule also discusses inadvertent disclosure and party agreements.

Comments about the new rule may be submitted in writing to Christopher Ryan, clerk of the Supreme Court, via email or at 2 East 14th Avenue, Denver, CO 80203. Comments must be received no later than 5 p.m. on March 3, 2016. Written comments will be posted on the State Judicial website after the comment period ends.

Click here to read the new rule. For all of the Colorado Supreme Court’s adopted and proposed rule changes, click here.

Colorado Court of Appeals: Evidence From One Trial Would Have Been Admissible at Other so Joinder Proper

The Colorado Court of Appeals issued its opinion in People v. Bondsteel on Thursday, November 19, 2015.

Joinder—Crim.P. 13—CRE 404(b)—Pretrial Lineups—Unduly Suggestive—Challenge for Cause—Jury—Kidnapping—Evidence—Prosecutorial Misconduct.

The trial court joined two separate cases against Bondsteel for trial: (1) the Signal Mountain Trail case in which Bondsteel had attacked two women while they were hiking; and (2) the motorcycle case in which Bondsteel approached four women in three separate cars while on his motorcycle, taking their cell phones and other belongings and demanding that the women move or remove portions of their clothing. A jury convicted him of multiple offenses, including second-degree kidnapping, aggravated robbery, unlawful sexual contact, and attempted sexual assault.

On appeal, Bondsteel first contended that the trial court erred in allowing the prosecution to join the two cases for trial. However, Bondsteel failed to satisfy either prong of the misjoinder test. Therefore, the trial court did not abuse its discretion in joining the cases.

Bondsteel next contended that because the pretrial lineups in which N.D. and K.D. both identified him as their attacker were unduly suggestive, their identifications should have been suppressed. All six lineup participants were dressed in camouflage with head coverings, leaving only their eyes visible, just as the victims had described their attacker to sheriff’s office deputies. Four of the participants had blue eyes; Bondsteel and one other participant had brown eyes. The disparity in the participants’ eye colors did not render the lineups impermissibly suggestive. Therefore, the trial court did not err in denying his motion to suppress.

Bondsteel contended that the trial court wrongfully denied his for-cause challenge to juror J.H., whom he eventually excused with a peremptory challenge. Even if the trial court abused its discretion in denying the challenge for cause, Bondsteel was not entitled to relief because he failed to show that a biased or incompetent juror sat on the jury instead of J.H.

Bondsteel further contended that the trial court committed reversible plain error by failing to instruct the jury sua sponteon the limited purposes for which it could consider evidence of the motorcycle case in relation to the Signal Mountain Trail case. However, Bondsteel failed to raise this issue, and a trial court’s failure to give a limiting instruction sua spontein the CRE 404(b) context was not reversible plain error.

Bondsteel argued that the evidence was insufficient to convict him for second-degree kidnapping of N.D. and K.D.; alternatively, he contended that the jury instructions on these counts were deficient. Although Bondsteel only moved N.D. a short distance, it substantially increased the risk of harm to N.D. by moving her off the public path. In contrast, there was no evidence in the record that Bondsteel moved K.D. at all. Because the evidence on the second-degree kidnapping conviction of K.D. was insufficient, this conviction was reversed and the accompanying sentence was vacated.

Finally, Bondsteel argued that the judgments must be reversed because the prosecutors misrepresented the nature of DNA evidence during closing argument. Bondsteel’s counsel did not object to the arguments at trial, and there was either support in the record for the prosecutor’s arguments or there was a lack of evidence in the record that defense counsel’s failure to object was tactical instead of inadvertent. Therefore, reversal was not required.

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

Colorado Court of Appeals: Evidence of Flight Admissible as Res Gestae, Not Other Bad Act Evidence

The Colorado Court of Appeals issued its opinion in People v. Gee on Thursday, October 22, 2015.

Evidence of Flight—CRE 404(b)—CRE 401—Habitual Criminal—Extended Proportionality Review—Motion for New Trial.

Gee, Wilson, and Ray went to the victim’s apartment with the intent to rob him. The victim was shot five times. When Gee and three others in his vehicle were located, the police retrieved evidence of the crime in the vehicle. Gee was convicted of first-degree assault with a deadly weapon, first-degree burglary as a crime of violence, and aggravated robbery with a deadly weapon. Shortly after sentencing, he filed a motion for a new trial, which was denied.

On appeal, Gee contended that the trial court erred in admitting evidence that he fled to Michigan while awaiting trial. Gee asserted that this evidence was subject to CRE 404(b) as evidence that he knowingly violated a bail bond conditions or knowingly failed to appear for trial or other proceedings, and that the prosecution failed to provide pretrial notice of its intent to introduce the evidence. However, evidence of Gee’s flight was relevant under CRE 401 because it was res gestaeevidence, relevant to show consciousness of guilt, and therefore it was not subject to CRE 404(b).

Gee also contended that the trial court erred in adjudging him a habitual criminal. Although Gee was a juvenile when he committed the prior offense of conspiracy, he pleaded guilty as an adult and was convicted within 10 years of the charged offense, which satisfied the habitual criminal statute. Therefore, the conspiracy conviction qualified as a predicate offense.

Gee further argued that the trial court erred in denying his request for an extended proportionality review of his sentence. Because none of the imposed sentences raised an inference of gross disproportionality, the trial court did not err in denying Gee’s request.

Finally, Gee argued that the trial court erred in denying his motion for a new trial. As grounds, Gee stated that both Wilson and Ray had recently made statements that exculpated him. However, new testimony by a co-defendant is not newly discovered evidence, and even if it was found to be newly discovered evidence, the trial court did not abuse its discretion in finding that this evidence probably would not result in an acquittal on retrial due to the overwhelming evidence against Gee. The judgment, sentence, and order were affirmed.

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