October 23, 2017

Colorado Court of Appeals: Aggravated Incest Statute Constitutional As Applied to Stepchildren of Common Law Marriages

The Colorado Court of Appeals issued its opinion in People v. Perez-Rodriguez on Thursday, June 1, 2017.

Sexual Assault—Minor—Aggravated Incest Statute—Common Law Marriage—Stepchildren—Unconstitutionally Vague as Applied—Jury Instruction—Mens Rea—Prosecutorial Misconduct—Due Process—Admission—Involuntary.

Defendant and A.S. lived together, and though they were never formally married, they publicly referred to each other as husband and wife. J.H-S. was one of A.S.’s children from a previous marriage, and while defendant never formally adopted her, they referred to each other as father and daughter. When J.H-S. was 15 years old, defendant forced her to have sexual intercourse with him on two separate occasions and impregnated her. When defendant was taken into custody, a detective questioned him for about 40 minutes. He was advised of his Miranda rights and signed a waiver. Defendant initially denied having had sexual intercourse with J.H.-S., but after about 15 more minutes, he confessed. Defendant was convicted of two counts each of aggravated incest, sexual assault on a child by one in a position of trust as a pattern of conduct, and sexual assault with the actor 10 years older than the victim.

On appeal, defendant first contended that the aggravated incest statute is unconstitutionally vague as applied to stepchildren of common law marriages. However, there is sufficient guidance through statute, case law, and the plain meaning of “stepchild” that a person in a common law marriage has sufficient notice as to the prohibited conduct of aggravated incest.

Defendant next contended that the trial court’s elemental instruction on aggravated incest failed to properly instruct the jury on the scope of the mens rea required to sustain a conviction. Specifically, defendant claimed that the way the jury instruction was written, the “knowingly” mens rea applied only to his act of subjecting J.H-S. to sexual penetration or sexual intrusion, and not to whether he knew she was his stepchild. Regardless of whether the instruction was erroneous, however, the evidence that defendant knew J.H-S. was his stepdaughter was overwhelming. Therefore, any error was not plain error.

Defendant then argued that the prosecution misstated the law on common law marriage during rebuttal closing argument, thereby committing reversible misconduct. The court’s instruction properly defined common law marriage and cohabitation. Although the prosecutor’s simple reference to “cohabitation,” viewed in isolation, may have misstated the law, when viewed in context as rebuttal to defendant’s arguments, there was no plain error.

Finally, defendant asserted that his confession was involuntary and that its admission violated his state and federal due process rights. Based on the totality of the circumstances, defendant’s admission was voluntary and the trial court did not err in admitting it into evidence.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Aggregate Sentences Amounting to Life for Juvenile Not Unconstitutional

The Colorado Supreme Court issued its opinion in Lucero v. People on Monday, May 22, 2017.

Life without Parole—Juveniles—Eighth Amendment—Colorado Rules of Criminal Procedure 35(b) and 35(c).

The Colorado Supreme Court considered whether Graham v. Florida, 560 U.S. 48 (2010), and Miller v. Alabama, 132 S.Ct. 2455 (2012), apply to aggregate term-of-years sentences imposed on juvenile defendants convicted of multiple offenses. Graham holds that the Eighth Amendment to the U.S. Constitution prohibits the sentence of life without parole for a juvenile non-homicide offender. Miller bars mandatory life without parole for any juvenile offender. Because life without parole is a specific sentence imposed for a single offense, the court held that Graham and Miller do not apply to aggregate term-of-years sentences imposed for multiple offenses. The court thus held that Graham and Miller do not apply to Lucero’s aggregate term-of-years sentence. The court also considered whether the court of appeals erred by treating Lucero’s Rule 35(b) motion for sentence reduction as a Rule 35(c) motion challenging the constitutionality of his sentence. Because a court may properly characterize a mischaracterized issue, and Lucero argued that his sentence must be reduced under Graham to meet constitutional standards, the court held that the court of appeals did not err. Accordingly, the supreme court affirmed the court of appeals’ judgment.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Aggregate Term-of-Years Sentences for Juvenile Held Constitutional

The Colorado Supreme Court issued its opinion in People v. Rainer on Monday, May 22, 2017.

Life without Parole—Juveniles—Eighth Amendment.

The supreme court considered whether Graham v. Florida, 560 U.S. 48 (2010), and Miller v. Alabama, 132 S. Ct. 2455 (2012), apply to aggregate term-of-years sentences imposed on juvenile defendants convicted of multiple offenses. For reasons discussed at length in the lead companion case, Lucero v. People, 2017 CO 49, __ P.3d __, announced the same day, the court held that Graham and Miller do not apply to aggregate term-of-years sentences imposed for multiple offenses. The court therefore held that Graham and Miller do not apply to Rainer’s aggregate term-of-years sentence. Accordingly, the court of appeals’ judgment was reversed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Graham and Miller Do Not Apply to Aggregate Term-of-Years Sentences

The Colorado Supreme Court issued its opinion in Armstrong v. People on Tuesday, May 30, 2017.

Life without parole—Juveniles—Eighth Amendment.

The supreme court considered whether Graham v. Florida, 560 U.S. 48 (2010), and Miller v. Alabama, 132 S. Ct. 2455 (2012), apply to aggregate term-of-years sentences imposed on juvenile defendants convicted of multiple offenses. For reasons discussed at length in the lead companion case, Lucero v. People, 2017 CO 49, __ P.3d __, announced the same day, the court held that Graham and Miller do not apply to aggregate term-of-years sentences imposed for multiple offenses. The court therefore held that Graham and Miller do not apply to Armstrong’s aggregate term-of-years sentence. Accordingly, the court of appeals’ judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: No Constitutional Violation for Juvenile’s Aggregate Term-of-Years Sentence for Multiple Violations

The Colorado Supreme Court issued its opinion in Estrada-Huerta v. People on Monday, May 22, 2017.

Life without parole—Juveniles—Eighth Amendment.

The supreme court considered whether Graham v. Florida, 560 U.S. 48 (2010), and Miller v. Alabama, 132 S. Ct. 2455 (2012), apply to aggregate term-of-years sentences imposed on juvenile defendants convicted of multiple offenses. For reasons discussed at length in the lead companion case, Lucero v. People, 2017 CO 49, __ P.3d __, announced the same day, the court held that Graham and Miller do not apply to aggregate term-of-years sentences imposed for multiple offenses. The Court therefore held that Graham and Miller do not apply to Estrada-Huerta’s aggregate term-of-years sentence. Accordingly, the court of appeals’ judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Statements to Military Investigator Considered Voluntary

The Colorado Supreme Court issued its opinion in People in Interest of Z.T.T. on Monday, May 22, 2017.

Criminal Law—Evidence Suppression.

This interlocutory appeal required the Colorado Supreme Court to determine whether a defendant’s confession to an Army investigator during basic training was the product of coercion. The court held that, where a defendant knowingly and intelligently waived his Miranda rights, knew he was free to leave an interview, and confessed to committing a crime during the course of a conversational, friendly interview devoid of coercive promises or threats, he gave his statements voluntarily. The court therefore reversed the trial court’s suppression order and remanded the case for proceedings consistent with this opinion.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: No Constitutional Violation by Using ALJs in Workers’ Compensation Proceedings

The Colorado Court of Appeals issued its opinion in Sanchez v. Industrial Claim Appeals Office on Thursday, May 18, 2017.

Workers’ Compensation Act of Colorado—Constitutionality—Separation of Powers—Equal Protection.

Claimant sustained a back injury at work lifting a hydraulic unit from his truck. Within two months he was back to work and placed at maximum medical improvement. Soon thereafter he complained of excruciating lower back pain, but both his original doctor and a specialist concluded that this new lumbar strain was not work-related but related to normal age-related degenerative changes.

Claimant sought temporary partial disability (TPD) benefits from the date of his injury and temporary total disability (TTD) benefits from when his low back pain flared up. An  administrative law judge (ALJ) rejected the request for benefits, finding that (1) his lower back pain was unrelated to his work injury, and (2) because he had continued working, claimant had not suffered a wage loss and was not entitled to either TPD or TTD benefits. The ALJ dismissed his requests. The Industrial Claim Appeals Office (Panel) affirmed but remanded the case to the ALJ to determine whether claimant was entitled to change his physician.

On appeal, claimant argued the separation of powers doctrine is violated by having workers’ compensation cases heard in the executive branch. In rejecting this argument, the court of appeals followed Dee Enterprises v. Industrial Claim Appeals Office, which held that the statutory scheme for deciding workers’ compensation cases does not violate the separation of powers doctrine.

Claimant then argued his equal protection claims should be analyzed under the strict scrutiny standard. The court held that the rational basis test applies to equal protection challenges in the workers’ compensation context. Under that test, “a statutory classification is presumed constitutional and does not violate equal protection unless it is proven beyond a reasonable doubt that the classification does not bear a rational relationship to a legitimate legislative purpose.”

Claimant argued that his and other workers’ compensation litigants’ rights to equal protection were violated because workers’ compensation cases are not heard by judges. The court concluded that legitimate governmental goals provide a rational basis for employing executive branch ALJs and the Panel to decide workers’ compensation cases. The court rejected claimant’s contention that his right to equal protection was violated because his claim was heard by an ALJ and the Panel.

Claimant then contended that the Panel’s dual role as decision-maker and then-named litigant if a case is appealed “reeks of impropriety.” The requirement that the Panel be added as a party is not arbitrary and serves the purpose of the Workers’ Compensation Act of ensuring thorough and expeditious review and enforcement of ALJ and Panel orders.

Claimant also challenged on equal protection grounds C.R.S. § 8-43-404(5)(a)(II)(A), which exempts governmental entities and health care providers from providing an injured worker with a list of four physicians from whom the worker may seek medical care for his injury. The court concluded that a rational basis exists for excluding employees of those two types of employers from the four-physician referral requirement. Thus, there was no equal protection violation.

The court rejected claimant’s three non-constitutional arguments, which were that: (1) the exemption from the four-physician referral requirement did not apply because claimant’s employer did not meet the requirements of C.R.S. § 8-43-404(5)(a)(II)(A); (2) substantial evidence did not support the ALJ’s factual findings; and (3) the ALJ made numerous evidentiary errors.

The Panel’s order was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Use of Refusal to Consent as Evidence of Guilt Does Not Violate Fourth Amendment

The Colorado Supreme Court issued its opinion in People v. Sewick on Monday, May 15, 2017.

Searches and Seizures—Refusal to Submit to Blood-Alcohol Testing—Admission of Refusal Evidence.

In this interlocutory appeal, the supreme court considered whether the prosecution’s use of a defendant’s refusal to consent to blood-alcohol testing as evidence of guilt at trial for a drunk-driving offense, in accordance with C.R.S. § 42-4-1301(6)(d), violates his Fourth Amendment right to be free from unreasonable searches. Because the court recently held in Fitzgerald v. People, 2017 CO 26, that the use of such refusal evidence does not violate the Fourth Amendment, that holding controls here, and defendant’s challenge to C.R.S. § 42-4-1301(6)(d) fails. The court therefore reversed the trial court’s order.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: DUI Suspect’s Refusal to Consent to Blood Test May Be Used as Evidence of Guilt

The Colorado Supreme Court issued its opinion in People v. Maxwell on Monday, May 15, 2017.

Searches and Seizures—Refusal to Submit to Blood-Alcohol Testing—Admission of Refusal Evidence.

In this interlocutory appeal, the supreme court considered whether the prosecution’s use of a defendant’s refusal to consent to blood-alcohol testing as evidence of guilt at trial for a drunk-driving offense, in accordance with C.R.S. § 42-4-1301(6)(d), violates his Fourth Amendment right to be free from unreasonable searches. Because the court recently held in Fitzgerald v. People, 2017 CO 26, P.3d, that the use of such refusal evidence does not violate the Fourth Amendment, that holding controls here, and defendant’s challenge to C.R.S. § 42-4-1301(6)(d) fails. The court therefore reversed the trial court’s order.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Use of Blood Test Refusal in DUI Case Does Not Violate Fourth Amendment

The Colorado Supreme Court issued its opinion in People v. King on Monday, May 15, 2017.

Searches and Seizures—Refusal to Submit to Blood-Alcohol Testing—Admission of Refusal Evidence.

In this interlocutory appeal, the supreme court considered whether the prosecution’s use of a defendant’s refusal to consent to blood-alcohol testing as evidence of guilt at trial for a drunk-driving offense, in accordance with C.R.S. § 42-4-1301(6)(d), violates his Fourth Amendment right to be free from unreasonable searches. Because the court recently held in Fitzgerald v. People, 2017 CO 26, that the use of such refusal evidence does not violate the Fourth Amendment, that holding controls here, and defendant’s challenge to C.R.S. § 42-4-1301(6)(d) fails. The court therefore reversed the trial court’s order.

Summary provided courtesy of The Colorado Lawyer.

Tenth Circuit: Eleventh Amendment Barred Claims Against Agricultural Employees

The Tenth Circuit Court of Appeals issued its opinion in Colby v. Herrick on March 1, 2017.

This case stemmed from a battle between Ms. Colby and her mother over the ownership of a horse. The mother complained to the Colorado Department of Agriculture, which sent someone from the Brand Inspection Division to investigate the situation. After investigating, the inspector seized the horse. Ms. Colby and her mother settled the ownership dispute in court and after three years, Ms. Colby prevailed and received the horse back. Ms. Colby and her husband then sued the Division and two of its officers. The district court dismissed the action.

The Tenth Circuit first addressed the Division as a defendant in the suit. It held that the Division was entitled to Eleventh Amendment immunity as an arm of the state and therefore could not be sued in federal court. Further, the Tenth Circuit held that because the Division was an arm of the state entitled to Eleventh Amendment immunity, the Colbys could not sue the two officers in their official capacity.

The Tenth Circuit reviewed the Eleventh Amendment immunity issue de novo. The Eleventh Amendment extends to governmental entities that are considered arms of the state. When determining if the Division was an arm of the state, the Tenth Circuit laid out five factors that it considered: (1) how the Division is characterized under Colorado law; (2) how much guidance and control the state of Colorado exercises over the Division; (3) how much funding the Division receives from the State; (4) whether the Division enjoys the ability to issue bonds and levy taxes; and (5) whether the state of Colorado bears legal liability to pay judgments against the Division.

The Tenth Circuit held that the first factor weighed in favor of regarding the Division as an arm of the state. This was due to the fact that Colorado law treats the Division as part of the state government. Additionally, the Division participates in state government as a state agency and the agency’s inspectors are Colorado law enforcement officers with the power to make arrests for violations of state law.

The Tenth Circuit held that the second factor also weighed in favor of regarding the Division as an arm of the state. This was because the Division is considered part of the state Department of Agriculture and is therefore subject to control by state officials.

With regard to the third factor, the Division is entirely self-funded. Additionally, with regard to the fourth factor, the State Board of Stock Commissioners is entitled to issue bonds worth up to $10 million to pay the Division’s expenses. The Tenth Circuit held that these two factors by themselves would cut against Eleventh Amendment immunity. However, the Tenth Circuit held that because the Division is entitled to participate in the Colorado risk management fund, which obtains money from state appropriations, that use of state money supports consideration of the Division as an arm of the state.

The Tenth Circuit held that it was unclear whether the State bears legal liability to pay a judgment of the Division.

Therefore, because the first and second factors clearly support characterization as an arm of the state, and the third and fourth could go both ways, the Tenth Circuit held that the balancing of all of the factors led it to regard the Division as an arm of the state. Therefore, the Division was entitled to Eleventh Amendment immunity. The Tenth Circuit held that the district court did not err in dismissing the claims against the division. However, it did hold that the dismissal with prejudice was a mistake. Because Eleventh Amendment immunity is jurisdictional, the Tenth Circuit held that the dismissal should have been without prejudice.

The Tenth Circuit next addressed the Eleventh Amendment immunity issue with regards to the Divisions’ two officers on the official-capacity claims for damages. The Tenth Circuit held that the officers were entitled to immunity in their official capacitates on behalf of the Division being an arm of the state. Therefore, The Tenth Circuit held that the officers were entitled to dismissal on the official-capacity claims for damages. However, just as with the Divisions Eleventh Amendment claim, because Eleventh Amendment immunity is jurisdictional, the district court should have dismissed the claim without prejudice.

The Tenth Circuit finally addressed the federal personal-capacity claims against the officers for damages. The district court had dismissed these claims based on timeliness. The Tenth Circuit stated that the Colbys claims had a two year statute of limitations. Further, the Tenth Circuit determined that the suffered damage accrued when the horse was seized on July 22, 2011. That action triggered the statute of limitations period. Because the Colbys did not sue until nearly three years later, the Tenth Circuit held that the claims were time-barred.

The Tenth Circuit addressed the Colbys’ argument that the statute of limitations should not have started until they were denied a timely post-deprivation hearing. The Tenth Circuit held that, even if this claim was accurate, that would only have moved the statute of limitations period six weeks in the future, which would still have resulted in the statute of limitations running out before the suit was filed.

Finally, the Tenth Circuit held that the continued violation doctrine did not apply to this case because the complaint does not base the claim on any acts taking place after July 22, 2011. Though the Colbys did not have their horse for three years, and therefore damages continued that entire period, the wrongful acts occurred only on July 22, 2011. Therefore, the Colbys’ claims against the officers in their individual capacity were time-barred.

In sum, the Tenth Circuit held that the Division and the officers in their official capacities were entitled to Eleventh Amendment immunity. However, because the district court dismissed these claims with prejudice, the Tenth Circuit remanded them for the limited purpose of directing the district court to make the dismissals without prejudice. Additionally, the remaining federal claims against the officers were properly dismissed based on the expiration of the statute of limitations.

Colorado Court of Appeals: Defendant’s Right to Private Counsel of Choice Conflicts with State’s Appointment of Experts

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

Child Abuse Resulting in Death—Sixth Amendment—Right to Counsel—Public Defender—Indigent—Ancillary Services—CJD 04-04—Statute of Limitations—False Reporting—Conspiracy—Out-of-Court Statements—Hearsay—Expert Witnesses—Credibility—Consecutive Sentences.

Defendant was charged with multiple crimes related to child abuse. After he was indicted, he appeared before the court with attorney Lane, who had represented defendant for about two years as “retained counsel.” Lane stated that defendant was indigent, and although Lane was willing to continue to represent defendant as “retained counsel,” defendant could not pay for ancillary services, such as investigators or experts. Lane stated that the Constitution required the court to provide ancillary services to indigent defendants at state expense. Relying on a U.S. Supreme Court case, United States v. Gonzalez-Lopez, Lane contended that the court should allow him to continue to represent defendant and also agree to pay state funds for ancillary services. Lane asserted that Gonzalez-Lopez is in conflict with the Colorado Supreme Court case People v. Cardenas, under which defendant was being forced to choose between two constitutional rights: the right to counsel of choice and the right to receive ancillary services at state expense. The trial court declined to overrule Cardenas and appointed public defenders to represent defendant, and Lane’s connection with the case ended. Defendant was convicted of multiple charges, including child abuse resulting in death, child abuse, assault, false reporting, concealing a child’s death, contributing to the delinquency of a minor, and conspiracy. The trial court sentenced defendant to 12 years in jail to be followed by 102 years in prison.

On appeal, defendant asserted that the trial court denied his Sixth Amendment right to counsel of his choice when it did not authorize Lane to receive state-funded ancillary services for defendant’s representation. Indigent defendants do not have a constitutional right to use state funds to pay for attorneys or for ancillary services of their choosing. Defendant only had a right to state-funded ancillary services if the public defender or court-appointed alternate defense counsel represented him. Therefore, the trial court did not wrongfully deny defendant’s constitutional right to counsel of choice when it appointed public defenders to represent him. However, Chief Justice Directive 04-04 (CJD 04-04), Appointment of State-Funded Counsel in Criminal Cases and for Contempt of Court, would have allowed the trial court to pay for support services for a defendant who is represented by private counsel. The trial court did not consider the Directive when it decided to appoint the public defenders, and defendant’s private counsel did not ask the court to do so. Any error in not considering CJD 04-04 was harmless in this case.

Defendant also contended that the trial court erred when it denied his motion for judgment of acquittal on the false reporting and conspiracy to commit false reporting counts because they were barred by the applicable statute of limitations. The record contains sufficient evidence to support these convictions based on conduct that had occurred within 18 months of when the grand jury indicted defendant on those charges. Therefore, these convictions were not barred by the statute of limitations.

Defendant further contended that the trial court erroneously admitted the out-of-court statements of defendant’s girlfriend and children who lived with them. As to the girlfriend’s statements, some were admissible as statements against interest; others were admissible as co-conspirator statements; and though the Court of Appeals could not determine the trustworthiness of one statement, it concluded its admission was harmless error. The children’s statements were variously admissible as non-hearsay, or under the child hearsay statute, or under the residual hearsay exception.

Defendant additionally contended that two expert witnesses improperly vouched for the children’s credibility. However, the experts did not vouch for the children’s veracity, either directly or indirectly; rather, their testimony concerned the typical demeanor and traits of abused children.

Defendant also asserted that the trial court erred when it admitted certain financial evidence, contending that it was only relevant to show that defendant and his girlfriend were “sponges on society.” However, this evidence was relevant and its relevancy was not outweighed by the danger of unfair prejudice.

Defendant also argued that the court admitted evidence he described as cumulative. The court concluded that the trial court did not abuse its discretion.

Finally, the trial court did not abuse its discretion when it imposed consecutive sentences on the misdemeanor child abuse counts.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.