October 26, 2016

Colorado Supreme Court: Presence of Juvenile Defendant’s Parent Satisfies Statutory Requirement

The Colorado Supreme Court issued its opinion in People in Interest of A.L.-C. on Monday, October 24, 2016.

The juvenile defendant, A.L.-C., was charged with sexual assault on a child after his little sister, B.O., reported that he had touched her inappropriately and had intercourse with her. Defendant’s mother, also the mother of B.O., had accompanied him to his forensic interview. During a recorded exchange in which Defendant, his mother, and his step-father discussed whether he would waive his Miranda rights, Defendant’s mother asked him if he understood his rights and he said he did. She informed him that she had to protect B.O. and chided him for never paying attention. Defendant told his mother that he would rather keep quiet. It was disputed whether he meant he would rather not talk to his mother or the detective.

Defendant’s mother was present for the entire forensic interview. At first, Defendant denied B.O.’s allegations, but after being confronted with details from an earlier interview with B.O., Defendant confessed. He was charged with sexual assault on a child.

Before trial, Defendant sought to suppress his statements in the forensic interview, arguing that that his mother’s presence did not satisfy the requirement in C.R.S. § 19-2-511(1) that a parent be present at the interview because his mother did not hold his interests “uppermost in mind.” The trial court agreed and suppressed Defendant’s statements. The People filed an interlocutory appeal with the Colorado Supreme Court regarding whether the statute required more than Defendant’s parent’s presence at the interview.

The supreme court analyzed the statute and determined its plain language required nothing more than a parent’s presence during advisement and interrogation. Defendant argued that the statute requires not only a parent’s presence, but also that the parent hold the defendant’s interest “uppermost in mind,” citing several cases. The supreme court distinguished case law advanced by Defendant, noting that in those cases it was not a parent present at the interview. The supreme court held that the shared interest analysis from the prior cases was inapposite because a parent was already in one of the statutorily defined categories. 

The court noted that although its holding may seem to differ from People v. Hayhurst, 571 P.2d 721 (Colo. 1977), it was actually in line with Hayhurst. In that case, the supreme court held that a parent could not fulfill his statutory role if his interests were adverse to his child’s. However, the court also held that the fact that the father was upset with his son did not necessarily mean their interests were adverse.

The supreme court reversed the trial court’s suppression order and remanded for further proceedings.

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: Cell Phone Records Created in Regular Course of Business are Nontestimonial

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

Two men, one masked and one not masked, held up a fast-food restaurant at gunpoint. The unmasked man was identified in surveillance video as David Maestas. Police found a car nearby that was registered to Maestas’ wife, and in the car was a cell phone and pair of jeans consistent with those used in the robbery. DNA on the waistband of the jeans was traced to defendant, and several cell phone calls were made to a number listed in the phone as “Ray’s mom.” Defendant was tried separately from Maestas, and a jury convicted him of aggravated robbery. He was adjudicated a habitual offender.

Defendant appealed, arguing three points of error: (1) his Confrontation Clause rights under the U.S. and Colorado Constitutions were violated by admission of the cell phone records; (2) he was denied a fair trial because the prosecutor misstated the evidence; and (3) during the habitual offender trial, his Confrontation Clause rights were violated by admission of sentencing and prison records.

The Colorado Court of Appeals first addressed Defendant’s contention that admission of the cell phone records violated his Confrontation Clause rights. The court examined Crawford v. Washington and found that in order to be considered testimonial, the records must have been made in anticipation of litigation. The court also found a Tenth Circuit opinion dispositive, United States v. Yeley-Davis, 632 F.3d 673 (10th Cir. 2011). In Yeley-Davis, the Tenth Circuit determined that cell phone records kept in the course of regular business by the cell phone company were nontestimonial. The Colorado Court of Appeals found this reasoning persuasive. Although the printout of the records was ultimately included in evidence, the cell phone company created the records in the ordinary course of business and not for litigation purposes. Defendant also contended that his Colorado constitutional rights were violated because there was no showing that the custodian of the records was unavailable. The court of appeals disagreed, citing People v. Dement, 661 P.2d 675 (Colo. 1983). The supreme court’s Dement test provides that the unavailability requirement is subject to an exception when the utility of trial testimony is very remote. Because there would be little practical effect of having the cell phone company’s custodian of records testify, the court found no error.

Defendant also contended the prosecutor impermissibly informed the jury that it was impossible that someone other than Defendant had contact with the jeans. The court of appeals disagreed with Defendant’s characterization of the prosecutor’s statements. The court found that, although the prosecutor’s statements could have been worded more artfully, he did not tell the jury with certainty that the jeans came from Defendant. The court found no error. The court also found no cumulative error, since it found no error at all.

Defendant argued that, during the habitual offender phase of his trial, the court erroneously allowed evidence of sentencing and prison records without requiring the presence of the record custodian. The court of appeals found this contention analogous to Defendant’s argument about the cell phone records and found no error for the same reason.

The court of appeals affirmed the judgment.

Colorado Supreme Court: Charges Requiring Different Evidence Arising from Same Incident Do Not Violate Double Jeopardy

The Colorado Supreme Court issued its opinion in Schneider v. People on Monday, October 17, 2016.

Sentencing—Constitutional Law.

Schneider sought review of the court of appeals’ judgment affirming his convictions and consecutive sentences for two counts of sexual assault. The jury returned guilty verdicts on one count of sexual assault of a physically helpless victim and another count of sexual assault by causing submission of a victim by means of sufficient consequence reasonably calculated to cause submission against the victim’s will, based on evidence of a single, continuous penetration of the same victim. The trial court imposed mandatory consecutive sentences for conviction of separate crimes of violence arising out of the same incident.

The court of appeals upheld the two sexual assault convictions against challenges of jeopardy and merger, on the grounds that defendant was convicted of violating two separate statutes. It also upheld the trial court’s order of consecutive sentences, on the grounds that consecutive sentences were mandated by statute unless both convictions were supported by identical evidence, which it reasoned could not be the case where the evidence required to prove each sexual assault charge was inconsistent with that required to prove the other.

The supreme court affirmed the judgment of the court of appeals, although on slightly different grounds. Although C.R.S. § 18-3-402 proscribes a single crime of “sexual assault,” which can be committed in either of the two ways charged in this case, the evidence at trial was sufficient to support a jury finding that defendant committed that single crime of “sexual assault” twice against the same victim.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Children’s Code Does Not Restrict DA’s Prosecution for Mandatory Reporter Violations

The Colorado Court of Appeals issued its opinion in Berges v. County Court of Douglas County on Thursday, October 6, 2016.

The Children’s Code—Authority of District Attorneys to Prosecute Mandatory Reporters.

Plaintiffs are medical doctors, clinical social workers, and healthcare professionals charged with violating C.R.S. § 19-3-304, under which they are “mandatory reporters” required to report suspected child abuse or neglect. Plaintiffs moved to dismiss the charges, arguing that the district attorney lacked authority to prosecute under C.R.S. § 19-3-206. The county court denied the motions. Plaintiffs filed a complaint under C.R.C.P. 106(a)(4) seeking review of the county court’s orders. The district court denied all relief and upheld the county court’s determination.

On appeal, plaintiffs contended that C.R.S. § 19-3-206 of the Children’s Code vests county attorneys with exclusive authority to prosecute mandatory reporters for criminal violations of C.R.S. § 19-3-304 because such prosecutions are “proceedings” brought under article 3 of the Children’s Code. The Colorado Court of Appeals concluded that C.R.S. § 19-3-206 does not preclude district attorneys from prosecuting mandatory reporters because C.R.S. § 19-3-304 does not set forth a proceeding under article 3, but simply defines an offense. Criminal prosecutions of that offense do not constitute article 3 proceedings.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Reverse Transfer Request Does Not Waive Psychologist-Patient Privilege

The Colorado Supreme Court issued its opinion in Johnson v. People on Monday, October 3, 2016.

Criminal Law—Juvenile Law—Psychotherapist-Patient Privilege.

This case raises two questions involving what a trial court may order when a juvenile seeks reverse-transfer of her criminal case from trial court to juvenile court. First, when a juvenile requests a reverse-transfer hearing, does she waive her psychotherapist-patient privilege, thereby authorizing a trial court to order her to produce privileged mental health records pursuant to C.R.S. § 19-2-517(3)(b)(VI)? Second, does C.R.S. § 19-2-517(3)(b)(VI) give a trial court the power to order a juvenile to submit to a state mental health assessment? As to the first question, the Colorado Supreme Court held that, because nothing in the statute states that a juvenile waives her psychotherapist–patient privilege by requesting a reverse-transfer hearing, a trial court cannot order the juvenile to produce privileged mental health records. As to the second question, the court held that, because nothing in the statute explicitly grants a trial court the power to order a mental health assessment, a trial court cannot order such an assessment. The reverse-transfer statute only requires that the trial court consider mental health records “made available” (i.e., voluntarily waived by the privilege-holder) to the trial court and the parties. Therefore, the court made its rule to show cause absolute and remanded the case for further proceedings consistent with this opinion.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Mental Health Assessment Not Court-Ordered Where Defendant Agreed to Participate

The Colorado Supreme Court issued its opinion in Higgins v. People on Monday, October 3, 2016.

Criminal Law—Juvenile Law—Psychotherapist– Patient Privilege—Constitutional Law.

This companion case to People v. Johnson, 2016 CO 69, raises two questions. First, does a trial court have statutory authority to order a juvenile charged as an adult to undergo a state-administered mental health assessment for a reverse-transfer proceeding? The supreme court answered that question in the negative in Johnson, but does not answer that question here because it is hypothetical—the question is not based on the facts of this case. Second, is a trial court required, before a mental health assessment, to provide a juvenile with warnings based on the Fifth Amendment right against self-incrimination? The court does not answer that question either, because (1) Higgins consented to the evaluation while represented by counsel, and (2) any claims that ineffective assistance of counsel vitiated Higgins’s consent are premature. Therefore, the court vacated the order to show cause and remanded the case for further proceedings.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Consent to Search Truck Was Valid so Suppression Unnecessary

The Colorado Supreme Court issued its opinion in People v. Chavez-Barragan on Monday, September 26, 2016.

Fourth Amendment—Traffic Stops—Reasonableness of Investigatory Detention—Voluntariness of Consent to Search.

The Supreme Court reversed the trial court’s order suppressing drugs found in defendant’s truck and defendant’s incriminating statements made to police after they discovered the drugs. Defendant was pulled over for a traffic violation and detained after he consented to a police search of his truck. The Supreme Court concluded that this investigatory detention, which resulted from defendant’s authorization of the search, was reasonable. After considering the totality of the circumstances, the Court also concluded that defendant’s consent to the search was voluntary and the search was lawful. Accordingly, the Court determined that no prior illegality tainted defendant’s incriminating statements. Therefore, neither the drugs nor the statements should have been suppressed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Colorado Speeding Statute Creates Mandatory Rebuttable Presumption

The Colorado Supreme Court issued its opinion in People v. Hoskin on Monday, September 26, 2016.

Statutory Interpretation—Due Process—Traffic Infraction—Sufficiency of the Evidence.

A county court judge found that Hoskin committed a traffic infraction in violation of Colorado’s speeding statute, C.R.S. § 42-2-1101. The district court reversed and held that the county court judge had impermissibly shifted the burden of proof to Hoskin by requiring him to prove that his speed was reasonable and prudent under the circumstances after the People presented evidence that Hoskin was driving in excess of the posted speed limit. The supreme court reversed the district court’s judgment, holding that the plain language of Colorado’s speeding statute creates a mandatory rebuttable presumption. Specifically, if the People prove that Hoskin was driving in excess of the posted speed limit, the burden of proof going forward shifts to Hoskin to prove that his speed was reasonable and prudent under the circumstances. The court further held that the speeding statute’s mandatory rebuttable presumption does not violate due process. Finally, the court concluded that there was sufficient evidence in the record to support the county court’s judgment against Hoskin for speeding.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Restitution Does Not Create a Debtor-Creditor Relationship with Victim

The Colorado Court of Appeals issued its opinion in People v. Foos on Thursday, September 22, 2016.

Bankruptcy—Discharge ofRestitution Order—Bad Faith.

In 2012, the U.S. Bankruptcy Court discharged Foos’s debts against the three victims in this case. Prior to his bankruptcy proceedings, Foos owed money to these victims. In 2013, Foos was charged with two counts of felony theft and one count of defrauding a secured creditor. Foos resolved these charges by pleading guilty to the charge of defrauding a secured creditor in exchange for dismissal of the other two counts. He stipulated to a deferred judgment and sentence with a requirement for full restitution.

On appeal, Foos argued that it was error to order him to pay restitution because he discharged his debts in bankruptcy before the charges were filed against him. C.R.S. § 18-1.3-603(4)(d) precludes the discharge of restitution orders in bankruptcy, and restitution serves a different purpose than bankruptcy. Accordingly, the district court did not err in ordering Foos to pay restitution.

Foos also argued that he was prosecuted in bad faith. The court of appeals noted that although the original prosecutor had a “cozy relationship” with Foos’s creditors, she was replaced with a special prosecutor who had no personal connection to the case and who made an independent decision to move forward with the prosecution. Moreover, Foos waived his right to challenge the validity of the charges by pleading guilty.

Finally, Foos argued that he was ordered to pay restitution to a listed victim in a theft count that was dismissed as part of the plea agreement. Colorado case law is clear that, for purposes of restitution, a victim does not have to be one of the named victims of a conviction.

The order was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Defendant’s Wife Can Initiate Police Interview After Invocation of Right to Counsel

The Colorado Court of Appeals issued its opinion in People v. Cardman on Thursday, September 22, 2016.

Sexual Assault—Custodial Interrogation—Miranda—Right to Counsel—Third Party.

The police executed a search warrant on defendant’s home after the victim reported that defendant had sexually assaulted her. During the search, they recovered a weapon, and defendant was arrested on the charge of possession of a weapon by a previous offender. Defendant promptly exercised his rights to remain silent and to counsel, and the police ceased questioning. Two days later, a police detective conducted another interview of defendant during which defendant admitted to three instances of sexual contact with the victim. An audio recording of defendant’s second police interview was admitted at trial. Defendant was convicted of multiple counts of sexual assault on a child.

On appeal, defendant contended that the district court erred by not suppressing statements he made during his second custodial interrogation because he had previously invoked his right to counsel and did not himself reinitiate communication with the police. To establish that a suspect has reinitiated discussions with the police after previously invoking his right to counsel, the prosecution must show that (1) the police reasonably believed that the suspect directed a third party to inform them that he wanted to have “a generalized discussion about the investigation,” and (2) the police confirmed with the suspect that he had so indicated. Here, the detective’s testimony was clear that defendant’s wife informed him that defendant had questions about the investigation. Further, the detective knew the caseworker had also been in contact with defendant after the first interview, and she also informed him that both defendant and his wife had questions about the investigation. The detective then called defendant at the jail and confirmed that defendant desired to speak with him. Therefore, defendant “adequately evinced a willingness and a desire to” reinitiate communication with the police through a third party and there was no error in admitting his inculpatory statements.

Defendant also contended that the statements he made in the second interview were not voluntary and that the court erred in not holding a hearing on the issue of voluntariness. The court of appeals did not reach the merits of this issue because defendant moved to suppress the statements solely on reinitiation grounds and thus waived the voluntariness claims.

Defendant also argued that reversal is required because the recording of the interview admitted at trial included the detective’s assertions that he believed the victim and did not believe defendant’s denials of the victim’s allegations, and because the detective testified that he did not believe defendant. The court discerned no plain error in the admission of this evidence.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: District Court Lacked Authority to Rule on People’s Motion

The Colorado Court of Appeals issued its opinion in People v. Wood on Thursday, September 22, 2016.

Felony Murder—Second Degree Murder—Habeas Corpus Petition—State District Court—Federal Court—Jurisdiction.

In 1986, while attempting to rob a pizza delivery store, Wood shot and killed an assistant store manager. Wood was convicted of felony murder, second degree murder, aggravated robbery, and menacing. For the past 10 years, Wood has sought to remove his felony murder conviction. The Tenth Circuit conditionally granted Wood’s habeas corpus petition, noting that his felony murder conviction would be vacated unless a state court acted within a reasonable time to vacate either his felony murder conviction or his second degree murder conviction. Thereafter, the state district court granted the People’s request to vacate the second degree murder conviction, rather than the felony murder conviction.

On appeal, Wood contended that the People did not have authority to request that the state district court vacate his second degree murder conviction, nor did the court have the jurisdiction or authority to do so. The People had the authority to file their request to notify the state district court of the federal district court’s conditional grant of habeas corpus relief and request that the state court vacate the conviction. Though the district court had subject matter jurisdiction, it did not have the authority to vacate Wood’s second degree murder conviction. The conditional grants of habeas corpus relief by the Tenth Circuit and the federal district court did not require the state district court to act. If it did nothing, Wood’s mittimus would be corrected by the federal district court removing his felony murder conviction and the double jeopardy violations would be remedied. Accordingly, the state district court’s order was vacated, and the case was remanded with instructions for the state district court to vacate Wood’s felony murder conviction and correct the mittimus accordingly, leaving in place the second degree murder, aggravated robbery, and menacing convictions.

Summary provided courtesy of The Colorado Lawyer.