October 26, 2014

Colorado Supreme Court: PERA Members Have No Continual Right to Cost of Living Adjustments

The Colorado Supreme Court issued its opinion in Justus v. State of Colorado on Monday, October 20, 2014.

Colorado Public Employee’s Retirement Association Pension Plan (PERA)—Cost-of-Living Adjustment—Contracts Clauses of U.S. and Colorado Constitutions.

In this decision, the Colorado Supreme Court determined whether Colorado PERA members have contractual rights for life without change to the cost-of-living adjustment (COLA) formulas in place at their respective retirements. On summary judgment, the district court ruled that PERA retirees had no such contract right to an unchangeable COLA formula.

The court of appeals disagreed. It determined that the retirees have a contract right, and remanded for further review to determine whether Senate Bill 10-001 violated the Contract Clauses of the U.S. and Colorado Constitutions.

The Court held that the 2010 PERA legislation did not establish any contract between PERA and its members entitling them to perpetual receipt of the specific COLA formula in place on the date each became eligible for retirement or on the date each actually retires. The judgment of the court of appeals was reversed and the trial court’s summary judgment order dismissing this case was upheld.

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

Tenth Circuit: Sex Offender Registration Requirements are Necessary and Proper to Regulate Child Pornography

The Tenth Circuit Court of Appeals issued its opinion in United States v. Brune on Friday, September 19, 2014.

Gustave Wilhelm Brune pleaded guilty in 2001 to possession of child pornography. He served 27-months in federal prison, after which he was placed on supervised release. In 2004, he violated a condition of his release and was incarcerated for an additional 21 months. In 2006, he completed his sentence and was released without supervision but was required to register as a sex offender for life under the Kansas Offender Registration Act (KORA) and the national Sex Offender Registration and Notification Act (SORNA). He was required to keep his registration current under both Acts.

Between 2006 and 2011, Brune repeatedly failed to comply with the registration requirements. After an investigation, federal officials charged Brune with failure to register as a sex offender and obtained an arrest warrant. A search of his home incident to the arrest revealed child pornography images on Brune’s computer and that he had accessed a webpage containing child pornography. He was indicted for failing to register under SORNA and accessing with intent to view child pornography under 18 U.S.C. § 2252A(a)(5)(B). He lodged unsuccessful constitutional objections to the charges and eventually pleaded guilty, reserving the right to appeal. On appeal, he argued (1) the Necessary and Proper clause cannot sustain Congress’s decision to enact SORNA; and (2) the conduct prohibited under 18 U.S.C. § 2252A(a)(5)(A) is unconstitutionally overbroad.

Addressing the first argument, the Tenth Circuit analyzed the Supreme Court’s decision in United States v. Kebodeaux, 133 S. Ct. 2496 (2013). In Kebodeaux, the Supreme Court determined that sex offender registration requirements did not violate the Necessary and Proper clause because Congress has the authority to impose punishment for sex offenders and the sex offender registration is necessary and proper to carry out Congress’s power. Applying the Court’s rationale to Brune, the Tenth Circuit found that SORNA survives Brune’s challenge. Brune’s original statute of conviction “plainly withstands constitutional scrutiny as an exercise of congressional authority under the Commerce Clause to regulate the interstate trafficking of child pornography. . . . And because the constitutionality of the underlying statute cannot be reasonably questioned, SORNA’s registration requirements are a limited and rational extension of congressional power, as permitted by the Necessary and Proper Clause.”

As to the second argument, Brune asserted that 18 U.S.C. § 2252A(a)(5)(A) is overbroad because it contains the phrase “or any other material that contains an image of child pornography.” Brune argues that anyone who accesses the internet could be subject to prosecution under § 2252A(a)(5)(A) because there is child pornography on the internet. The Tenth Circuit rejected this argument. Read contextually, the meaning of the statute is easy to ascertain. And, even if there were some ambiguity in the meaning of the statute, the court’s preference is always to support the constitutionality of a statute.

The Tenth Circuit affirmed the district court’s denials of Brune’s motions to dismiss.

Tenth Circuit: Threatening Intent Required for Conviction Under Interstate Threat Statute

The Tenth Circuit Court of Appeals issued its opinion in United States v. Heineman on Monday, September 15, 2014.

Defendant Aaron Heineman, a white supremacist, sent three emails to a professor at the University of Utah in 2010 and 2011. The third email was a poem that made the professor fear for his safety and that of his family. The professor contacted law enforcement, who traced the email to Heineman. When officers contacted Heineman in writing, he immediately responded, “Is this about the email?” He was charged with one count of sending an interstate threat in the U.S. District Court for the District of Utah. Prior to trial, he requested an instruction that he must have intended his communication to be perceived as a threat in order to be convicted, but his request was denied. He then moved to dismiss the charge, arguing the statute was facially unconstitutional if it did not require proof that he intended the communication to place the hearer in fear of bodily harm or death. The court denied this motion. He reasserted his objections at trial, and the court again rejected them. The court concluded that Defendant had knowingly transmitted a communication that would cause a reasonable person to fear bodily harm or death. Defendant appealed.

The Tenth Circuit reversed the conviction. After a careful analysis of the U.S. Supreme Court’s opinion in Virginia v. Black, 538 U.S. 343 (2003), the Tenth Circuit concluded as an issue of first impression that the defendant must intend the communication to be perceived as a threat, regardless of whether he actually carries out the threat. The Tenth Circuit reversed Defendant’s conviction and remanded for determination of intent.

Colorado Court of Appeals: Warrantless Search of Cell Phone Violated Fourth Amendment

The Colorado Court of Appeals issued its opinion in People v. Omwanda on Thursday, September 25, 2014.

Evidence Suppression of Information on Cell Phone—Theory of Defense Instruction.

Before trial, defendant sought to suppress evidence that police had recovered from his cell phone. At the suppression hearing, an officer testified that he stopped a car carrying six people, including defendant. With the driver’s permission, the officer searched inside the car, where he found electronic scales and a pill bottle containing cocaine. Two passengers said the pill bottle belonged to defendant.

The officer arrested and searched defendant. The search revealed another pill bottle and a cell phone. The second pill bottle contained a white residue. Defendant asked the officer to give the cell phone to another passenger, but the officer told him he would keep it as evidence. The officer read three text messages on the phone. All three indicated cocaine use and purchase.

The officer later applied for, and received, a warrant to search the phone. The warrant application quoted the text messages. The search of the phone pursuant to the warrant revealed additional communications and information indicative of drug dealing.

The trial court denied the motion to suppress because the search was incident to the arrest. The jury acquitted defendant of possession with intent to distribute but convicted him of possession of a controlled substance.

The Court of Appeals agreed with defendant that the initial search of the phone violated the Fourth Amendment as enunciated by the U.S. Supreme Court in Riley v. CaliforniaRiley v. California, ___ U.S. ___, 134 S.Ct. 2473 (2014). In Riley, the Court held “that a warrant is generally required before . . . a search [of information on a cell phone], even when a cell phone is seized incident to arrest.”

The People argued that even if the initial search was unlawful, the police independently discovered the information on the phone pursuant to the search warrant. A court may admit unconstitutionally obtained evidence “if the prosecution can establish that it was also discovered by means independent of the illegality.” The Court reviewed the officer’s warrant application and found probable cause to support the issuance of the warrant. The issue turns on whether the initial search of the three text messages affected the officer’s decision to seek the warrant. This required further factual findings. Accordingly, the case was remanded for further proceedings on this issue.

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

Colorado Court of Appeals: Defense Counsel Waived Confrontation Clause Claim by Eliciting Testimonial Statements

The Colorado Court of Appeals issued its opinion in People v. Merritt on Thursday, September 25, 2014.

Confrontation Clause—Autopsy Report—Testimonial.

A hotel desk clerk found Welch’s body in the room where she had lived for about five years. Her throat had been cut and a large amount of blood was visible on her body and on the bed beneath her. Defendant, a security guard at the hotel, was charged with her death. He was found guilty of second-degree murder and was sentenced to thirty-six years in the custody of the Department of Corrections.

On appeal, defendant alleged that the court violated his rights under the Confrontation Clause by admitting an autopsy report prepared by a doctor who was not present at trial. Dr. Lear-Kaul performed an autopsy and authored a report detailing her findings and conclusions regarding the cause and manner of Welch’s death. Because Dr. Lear-Kaul was on maternity leave during the trial, her supervisor, Dr. Dobersen, testified regarding the autopsy report and the cause of death.

Given the state of the body, the nature of the crime scene, and the statutorily mandated cooperation between the coroner’s office and the district attorney’s office, it was reasonable for Dr. Lear-Kaul to assume that the report containing her findings and conclusions would be used in the eventual prosecution of a murder suspect. Therefore, the statements were testimonial. However, by asking Dr. Dobersen questions about alternative causes of death, which relied on facts contained in the autopsy report, defendant’s counsel intentionally opened the door on a particular line of questioning and effectively waived the right to confrontation. The judgment was affirmed.

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

Tenth Circuit: No Fourth Amendment Violation in Search of Abandoned Bag

The Tenth Circuit Court of Appeals issued its opinion in United States v. Tubens on Tuesday, September 2, 2014.

Peter Tubens was on a Greyhound bus in Utah en route to Philadelphia when Utah Highway Patrol officers and their drug-sniffing dogs stopped the bus during a routine drug interdiction activity. Both dogs alerted to one bag in the luggage compartment marked as Tubens’. One officer entered the bus and asked for Mr. Tubens in a loud, clear voice, but Tubens did not respond. After checking all the passengers’ tickets, the police located Tubens and questioned him. Because of his suspicious behavior and knowledge that drug traffickers tend to move drugs between their checked bags and carry-ons, the officers asked to search Tubens’ carry-ons. Tubens said he did not have any, but another passenger said Tubens had been putting a bag in the carry-on area. Officers found a paper bag and CD case on Tubens’ seat, neither of which contained drugs. The officers, by this time quite suspicious of Tubens, asked everyone on the bus to claim their carry-ons, after which there was one bag remaining. The officer asked in a loud, clear voice if the bag belonged to anyone, but no one claimed it. They asked Tubens if the bag was his and he denied ownership. They proceeded to search the bag and found two cylinders containing meth as well as two prescriptions belonging to Tubens. He was charged with possession of methamphetamine with intent to distribute and sentenced to 240 months’ imprisonment. Tubens appealed, arguing that the evidence obtained by searching the bag should be suppressed because it was obtained in violation of the Fourth Amendment.

The Tenth Circuit disagreed. The officers’ initial stop and dog sniff was a lawful investigation, and no justification was needed. Even assuming the officers’ search required reasonable suspicion, they had ample reason to be suspicious of Tubens, given the dogs’ positive reactions to the bag and Tubens’ evasive behavior. No Fourth Amendment violation precipitated Tubens’ abandonment of his bag. And, because Tubens unequivocally proclaimed the abandoned bag was not his, he lacked standing to challenge its search. The district court’s judgment was affirmed.

Colorado Court of Appeals: Medical Marijuana Grower Not Entitled to Bring § 1983 Action for Destruction of Plants

The Colorado Court of Appeals issued its opinion in Young v. Larimer County Sheriff’s Office on Thursday, September 11, 2014.

Medical Marijuana Amendment—42 USC § 1983—Seizure—Taking—Constitution.

Young leased property where he grew marijuana plants and distributed marijuana for medical use under the Medical Marijuana Amendment (MMA), Article XVIII, §14 of the Colorado Constitution. After obtaining search warrants, sheriff’s deputies entered Young’s property and seized forty-two marijuana plants by cutting them off just above the roots. This action killed the plants. After Young was acquitted of all charges against him, he brought this action for damages on the basis that the deputies had killed the plants seized from him. The trial court entered summary judgment against Young.

On appeal, Young argued that 42 USC § 1983 provides a remedy for state action that violates a right created by the MMA. Section 14(2)(e) of the MMA requires that medical marijuana that has been seized be returned upon acquittal of criminal charges. However, because federal law criminalizes possession of marijuana, such a claim is not cognizable under § 1983. Further, no express or implied private right of action exists under the MMA. Therefore, the trial court properly entered summary judgment on this claim.

Defendants argued that because Young’s complaint alleged a taking only under federal law (which is foreclosed by the federal criminalization of marijuana), a state law takings claim under Article II, §15 of the Colorado Constitution should not be considered. A valid seizure under criminal law does not constitute a taking for which the owner is entitled to just compensation, even if the defendant is later acquitted of the charges. Therefore, the trial court properly entered summary judgment on the state law takings claim. The judgment was affirmed.

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

Colorado Court of Appeals: Remand to Determine Whether Defendant Hired Specific Attorney or Entire Firm

The Colorado Court of Appeals issued its opinion in People v. Stidham on Thursday, September 11, 2014.

Sentencing Hearing—Sixth Amendment—Right to Counsel—Continuance.

A jury found defendant guilty of multiple sex offenses involving three minor children. The district court convicted him, adjudicated him a habitual criminal based on various prior convictions, and sentenced him to forty-eight years to life in the custody of the Department of Corrections. At a resentencing hearing, the court denied defendant’s request for a continuance based on his objection that an associate from the firm, R.T., instead of the attorney from the firm he had hired, H.S., was there to represent him. The resentencing hearing proceeded, and the district court ultimately imposed the same sentence.

Defendant argued that the trial court violated his Sixth Amendment right to counsel when it denied his request for a continuance of his resentencing hearing. It is unclear from the record whether defendant hired H.S. personally or the firm. Therefore, the case was remanded to make this determination and for further findings. If defendant hired H.S. personally, the court will need to vacate the current sentence and set a resentencing hearing at which H.S., defendant’s current counsel, or defendant’s retained counsel can appear. If defendant hired the firm, the court should consider and make a record of the appropriate factors in deciding whether it should have continued the resentencing hearing to allow defendant to be represented by H.S. If it finds it should have granted defendant’s requested continuance, the court should vacate the sentence and reset the resentencing hearing.

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

Colorado Court of Appeals: No Confrontation Clause Violation where Defendant Not Allowed to Elicit Testimony Regarding Victim’s Truthfulness

The Colorado Court of Appeals issued its opinion in People v. Wilson on Thursday, September 11, 2014.

Sexual Assault—Challenge for Cause—Impeachment—Veracity—Collateral Issue—Prosecutorial Misconduct.

A.M. claimed she was sexually assaulted by defendant and his friend in a parking garage. Defendant claimed the sex was consensual. A jury convicted defendant of two counts of sexual assault.

On appeal, defendant contended that the trial court erred in denying one of his challenges for cause and granting two of the prosecution’s challenges for cause. All three of the challenged jurors expressed a possible bias. Because Juror R indicated that she thought she could fulfill her duties as a fair and impartial juror, the court did not abuse its discretion in denying defendant’s challenge for cause as to this juror. The court also acted within its discretion in removing Jurors W and S based on its conclusion that it was not satisfied that they would render an impartial verdict after expressing bias.

Defendant also contended that the trial court erred in not allowing him to impeach A.M.’s testimony that she had truthfully answered all of a detective’s questions in an interview regarding a previous narcotic’s arrest. However, because the subject of A.M.’s narcotics arrest raised a collateral issue, the trial court acted within its discretion in precluding defendant from inquiring of A.M. whether she had been truthful to the detective on that subject. It follows that defendant’s constitutional right to confront adverse witnesses was not violated.

Defendant further argued that reversal was required because of prosecutorial misconduct in closing argument. However, the prosecutor was drawing reasonable inferences from the evidence rather than professing her personal opinion as to A.M.’s veracity. Although asking the female jurors to conduct an experiment to determine whether the evidence was credible was improper, no plain error occurred. In asking the jury to evaluate the evidence, based on the experience of its female members, the prosecutor was not asking the jury to decide the case on impermissible grounds.

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

Colorado Court of Appeals: No Fourth Amendment Violation where Officers had Reasonable Suspicion for Pat-Down

The Colorado Court of Appeals issued its opinion in People v. Martin on Thursday, August 28, 2014.

Motion to Suppress—Investigatory Stop—Pat Down—Fourth Amendment—Search and Seizure—Right to Testify—Waiver.

After defendant refused to exit a restroom at a convenience store, police officers ordered him to face the wall and put his hands behind his back for a pat down search. During the pat down, defendant’s actions caused the officers to think he was attempting to flee. A struggle between defendant and the officers ensued, during which defendant and one of the officers were injured. A jury found defendant guilty of attempting to disarm a peace officer and resisting arrest.

On appeal, defendant asserted that the trial court erred by denying his motion to suppress evidence because the investigatory stop and subsequent pat down violated his Fourth Amendment right to be free from unreasonable searches and seizures. The Court of Appeals disagreed. The officer had reasonable grounds to initiate contact with defendant, both on the basis of conducting an inquiry into defendant’s welfare and on reasonable suspicion that he was unlawfully trespassing on the property when defendant remained in the bathroom for more than twenty minutes and subsequently refused to exit the bathroom after the police arrived. Additionally, even if the pat down was unlawful, defendant’s conduct of pulling away from the officers, attacking them, and resisting arrest constituted new offenses justifying a pat down.

Defendant contended that the trial court erred by denying his request to testify. Defendant requested to testify after he had waived the right to do so and defense counsel had rested the case. Although a defendant’s constitutional right to testify is not absolute, a defendant is not prohibited from testifying after waiving the right to do so and resting his or her case. Therefore, the case was remanded for hearing to reconsider defendant’s request.

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

Colorado Court of Appeals: Life Sentence Without Parole Unconstitutional for Juvenile Offender

The Colorado Court of Appeals issued its opinion in People v. Gutierrez-Ruiz on Thursday, August 28, 2014.

Ineffective Assistance of Counsel—Sentence—Juvenile—Life Without Parole—Eighth Amendment.

While defendant was driving a car, his passenger (co-defendant) shot at a truck, wounding the driver. Co-defendant later shot at another car, killing the driver. Defendant was a juvenile at the time of his arrest. A jury convicted defendant of first-degree murder after deliberation and first-degree assault with a deadly weapon. The trial court sentenced him to life without parole on the murder count and to ten years and one day on the assault count.

Defendant raised a number of claims of ineffective assistance of trial counsel. However, these claims were procedurally barred. Defendant further contended that his appellate counsel failed to advise him of the one-year limitation period for filing a section 2254 petition. This did not warrant relief because appellate counsel did not have an obligation to advise appellant of this post-conviction option.

Defendant asserted, the People agreed, and the Court of Appeals concurred that defendant’s mandatory sentence to life imprisonment without the possibility of parole was unconstitutional. Defendant’s sentence of life without parole violates the Eighth Amendment because it was imposed without any opportunity for the sentencing court to consider whether this punishment is just and appropriate in light of defendant’s age, maturity, and the other factors. Accordingly, the case was remanded for resentencing.

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

Colorado Court of Appeals: Constitutional Right to Counsel Applies at All Critical Stages of Criminal Proceeding

The Colorado Court of Appeals issued its opinion in People v. Fritts on Thursday, August 14, 2014.

Sexual Assault—Child—Sentence—Consecutive—Right to Counsel—Crim.P. 35(a).

Defendant was charged with sixteen counts of sexual assault-related offenses based on allegations that he molested his minor stepdaughter. In 2000, in exchange for dismissal of the remainder of the charges, defendant pleaded guilty to two counts of sexual assault on a child by one in a position of trust. Defendant was sentenced to two concurrent sentences of twenty years to life. Defendant later filed a Crim.P. 35(a) motion to correct an illegal sentence. After a hearing, the court sentenced defendant to two consecutive sentences of ten years to life.

On appeal, defendant argued that the post-conviction court erred in holding that a defendant has no constitutional or statutory right to appointed counsel at a resentencing hearing occasioned by a successful Crim.P. 35(a) motion. Here, although defendant had a right to appointed counsel because the motion involved resentencing and the court erred in ruling otherwise, the error was harmless beyond a reasonable doubt because defendant was represented by privately retained counsel at the resentencing hearing.

Defendant also argued that the consecutive sentences imposed by the post-conviction court on resentencing were unconstitutional and illegal. However, the aggregate sentence imposed on resentencing was not harsher than defendant’s original sentence. Further, the record supports the court’s finding that two factually distinct offenses occurred. Therefore, the post-conviction court did not abuse its discretion by imposing consecutive sentences, and the consecutive sentences imposed on resentencing did not deprive defendant of due process of law. In addition, defendant’s rights against double jeopardy were not violated. The sentences were affirmed.

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