August 15, 2017

Colorado Court of Appeals: Cumulative Effect of Numerous Errors Required Reversal

The Colorado Court of Appeals issued its opinion in People v. Stewart on Thursday, July 27, 2017.

Felony Menacing—Obstructing a Peace Officer—Witness—CRE 611—CRE 612—CRE 404(b)—Jury Instruction—Request for Continuance—Cumulative Effect of Errors—Prejudice.

Inebriated, defendant took a cab from a friend’s house and refused to pay his $4.85 cab fare. Defendant jumped from the cab and, chased by the cab driver and a nearby police officer, ran to his apartment, which was surrounded by a six-foot privacy fence that enclosed defendant’s private patio and was secured by a locked gate. At least one officer scaled the fence and opened the gate for remaining officers to enter. After officers breached the fence, they saw defendant behind his window blinds with a plastic BB gun, which they believed to be real. Officers opened fire and defendant suffered two gunshot wounds. A jury convicted defendant of felony menacing and obstructing a peace officer.

On appeal, defendant raised evidentiary errors. The court of appeals determined that the trial court erred by allowing the prosecution to improperly lead a witness, in violation of CRE 611(c). The court’s failure to follow the appropriate procedure to refresh recollection also violated CRE 612. This error was prejudicial, but harmless in isolation. The trial court further erred by allowing the prosecution to present evidence that defendant previously hid from the police, in violation of CRE 404(b). This evidence was irrelevant to any issue at trial other than the habit and character of defendant; it prejudiced defendant and affected the fairness of the proceedings.

Defendant further argued that the trial court erroneously instructed the jury concerning exigent circumstances. The court was unable to determine the relevance of the instruction, and it appeared that the instruction was not an accurate or complete statement of the law. This error alone did not require reversal, but it contributed to the cumulative effect of the other errors.

Defendant also argued that the trial court erred by denying his request for a continuance to subpoena the cab driver. Refusing the continuance prejudiced defendant by denying him a key witness, affecting the fairness of the trial proceedings.

Considered in isolation, each of the errors might be viewed as harmless, but in the context of a single trial, the cumulative effect of the errors requires reversal of defendant’s conviction.

The judgment was reversed and the case was remanded for a new trial.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Balancing Test Enunciated when One Party Calls Other Party’s “May Call” Witness

The Colorado Court of Appeals issued its opinion in Sovde v. Scott, D.O. on Thursday, June 29, 2017.

Medical MalpracticeMisdiagnosisExpert WitnessesTimely EndorsementHearsay.

Sovde, a child, sued doctors Scott and Sarka by and through his mother. The lawsuit claimed that defendants had negligently misdiagnosed lesions on the child’s head as something benign instead of manifestations of the herpes simplex virus, and if defendants had timely and properly diagnosed the lesions as products of less harmful skin, eyes, and mucous membrane disease, they could have treated the child with antibiotics, which could have prevented the onset of the more harmful central nervous system disease. The jury found in defendants’ favor.

On appeal, plaintiff argued that the trial court erred when it denied his requests to use the testimony of defendants’ previously endorsed expert witnesses whom defendants had withdrawn. The trial court did not abuse its discretion when it permitted defendants to withdraw Dr. Reiley and Dr. Molteni as expert witnesses and not make them available at trial because they had previously been listed as “may call,” not “will call,” witnesses. Further, because plaintiff did not timely endorse these witnesses or timely inform the court and defendants that he would use their depositions at trial, and the record supports the trial court’s implicit decision that the testimony and depositions would have been cumulative or would have had little probative value, the trial court did not err in denying his requests. For the same reasons, the trial court properly rejected plaintiff’s motion for a new trial.

Plaintiff also argued that the trial court erred in excluding father’s telephone conversation with a licensed medical assistant in a pediatrician’s office, contending that the testimony was admissible under CRE 803(4) as statements made for purposes of medical diagnosis or treatment. Although some of father’s statements fell within the ambit of CRE 803(4) because he provided them to the medical assistant to obtain a diagnosis of and treatment for the child’s condition, plaintiff failed to show that excluding this testimony substantially influenced the basic fairness of the trial. Further, the trial court did not abuse its discretion when it denied plaintiff’s motion for a new trial on these grounds.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Authentication of Text Messages Requires Testimony Verifying Printouts and Identifying Sender

The Colorado Court of Appeals issued its opinion in People v. Heisler on Thursday, May 4, 2017.

Harassment—Text Messages—Evidence—Domestic Violence—Sentencing—Sixth Amendment.

The victim and Heisler dated for three years. After they broke up, the victim told Heisler that she no longer wished to communicate with him. Heisler ignored the victim’s request and sent her numerous text messages and letters, and eventually traveled from Florida, where he lived, to Colorado to talk to the victim in person—uninvited and unannounced. When the victim saw Heisler outside of her home, she called the police. Heisler was ultimately found guilty of harassment and sentenced to jail time and probation, and because the conduct underlying his conviction included an act of domestic violence, he was ordered to complete domestic violence treatment.

On appeal, Heisler contended that the trial court erred by admitting into evidence the text messages he sent to the victim because they were not properly authenticated under CRE 901(a). Here, the prosecution introduced printouts of the text messages, and the victim testified that they accurately reflected the texts she received, she recognized the number as being Heisler’s and had used that number to communicate with him, and she recognized the content of the text messages as being from Heisler. In addition, the content of the text messages included corroborative evidence that they came from Heisler. Accordingly, the text messages were properly authenticated and it was not error to admit them into evidence.

Heisler also contended that the domestic violence sentencing statute, C.R.S. § 18-6-801(1)(a), is facially violative of his constitutional right to a jury trial under the Sixth Amendment to the U.S. Constitution. He argued that the statute improperly authorizes the trial court to make a factual determination that the underlying crime of conviction included an act of domestic violence and unconstitutionally imposes a mandatory penalty (domestic violence treatment) above the minimum of the presumptive sentencing range (here, a $50 fine). He further contended that the trial court should have instructed the jury to determine whether his offense included an act of domestic violence and erred in denying his request for that instruction. C.R.S. § 18-6-801(1) allows a trial court to make a factual finding that the defendant’s underlying criminal conviction included an act of domestic violence. Court-ordered domestic violence treatment is not a form of punishment, and the statute does not mandate a penalty. The court did not err in denying Heisler’s request for a jury instruction. No Sixth Amendment violation occurred.

The judgment and sentence were affirmed.

Summary provided courtesy of The Colorado Lawyer.

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.