November 27, 2014

Local Rules for U.S. District Court Amended Effective December 1, 2014

The U.S. District Court for the District of Colorado has made changes to its Local Rules, effective December 1, 2014. The Advisory Committee continues to revise the rules in its comprehensive review. The changes effective December 1 focus on stylistic changes to the criminal rules, converting pilot programs to local rules, and updating rules applicable to members of the bar.

The Advisory Committee will conduct a public forum in January 2015 in which to discuss these changes to the Local Rules and invite questions and comments from the bar. It will be held at the Alfred A. Arraj U.S. District Courthouse at an as yet undetermined date.

For the complete Local Rules effective December 1, 2014, click here. For a redline showing the changes to the Local Rules, click here.

Colorado Court of Appeals: Adverse Possession Requires Good Faith Belief of Ownership of Property for 18 Years or More

The Colorado Court of Appeals issued its opinion in People v. Gutierrez-Vite on Thursday, November 20, 2014.

Adverse Possession—Defense—Theft—Offering a False Instrument for Recording—Jury Instructions—Testimony.

This case stems from defendant’s alleged attempt to adversely possess a home in Fraser, Colorado. At all relevant times, the home was privately owned by another party, but was unoccupied and in foreclosure. Defendant filed an Affidavit of Adverse Possession with the Grand County Clerk and Recorder’s Office even though she did not own or have permission to be in the home. A jury found defendant guilty of attempted theft and two counts of offering a false instrument for recording.

On appeal, defendant contended that the trial court erred because it denied her request to present a defense based on the adverse possession statute and an affirmative defense of mistake of law based on the adverse possession statute. Under the adverse possession statute, in actions filed on or after July 1, 2008, the party claiming the title must prove, by clear and convincing evidence, that his or her possession was actual, adverse, hostile, under a claim of right, exclusive, and uninterrupted for at least eighteen years. The statute also requires that an adverse claimant establish a good-faith belief that he or she was the property’s actual owner.

Because defendant admitted that she knew the property was owned by someone else and she only possessed the property for five months, she did not meet the requirements to claim adverse possession. Because her adverse possession claim to the property fails, the adverse possession statute could not relieve her of criminal liability. Further, defendant’s mistaken belief regarding adverse possession law does not relieve her of criminal liability. Therefore, the trial court did not err in denying her request to present a defense based on adverse possession and excluding this defense from the jury instructions.

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

Colorado Court of Appeals: Adverse Possession Not Affirmative Defense for Theft and Trespass

The Colorado Court of Appeals issued its opinion in People v. Bruno on Thursday, November 20, 2014.

Adverse Possession—Defense—Theft—Trespassing—Offering a False Instrument for Recording—Jury Instructions—Testimony.

This case stems from Bruno’s alleged attempt to adversely possess a home in Fraser, Colorado. At all relevant times, the home was privately owned by another party, but was unoccupied and in foreclosure. Bruno filed an Affidavit of Adverse Possession with the Grand County Clerk and Recorder’s Office, even though he did not own or have permission to be in the home. A jury found Bruno guilty of theft, trespassing, and two counts of offering a false instrument for recording.

On appeal, Bruno contended that the district court erred in preventing him from raising the defense of adverse possession to the counts of theft and offering a false instrument. Bruno admitted that he knew the property belonged to someone else and he was attempting to begin a claim of adverse possession. Because the General Assembly did not provide and did not intend to create an adverse possession defense in the circumstances presented here, there is no defense of adverse possession to the crimes charged. Further, Bruno’s mistaken belief regarding adverse possession law does not relieve him of criminal liability. The judgment was affirmed.

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

Colorado Court of Appeals: No Error to Admit Hearsay Statements for Purpose of Rehabilitating Credibility

The Colorado Court of Appeals issued its opinion in People v. Pernell on Thursday, November 20, 2014.

Restraining Order—Sexual Assault—Challenge for Cause—Jury Selection—Motion for Mistrial—Hearsay—Excited Utterance—Rape.

In violation of a restraining order, defendant went to his ex-wife’s home one evening while she and her boyfriend were inside. Defendant forced his way inside, put a gun to the boyfriend’s head and, after allowing the boyfriend to leave, sexually assaulted his ex-wife. He was convicted of violating a restraining order, first-degree burglary, menacing (two counts), second-degree kidnapping, sexual assault, and commission of a violent crime (three counts).

On appeal, defendant contended that the trial court erred in granting the prosecution’s challenge for cause to prospective Juror H, who indicated that she had doubts about her ability to be fair and impartial because her son had been accused of burglary in connection with a domestic violence incident. Although she agreed with defense counsel that she could follow the court’s instructions and reserve judgment until hearing all of the evidence, the record indicated that she was deeply conflicted about her ability to be fair given her experience with her son’s case. Because her answers were equivocal and conflicting, and because it was not satisfied she would render a fair and impartial verdict, the court acted within its discretion in removing her.

Defendant also contended that the trial court erred in not granting his motion for mistrial based on the erroneous admission of an officer’s testimony in which he recounted the ex-wife’s description of the incident twelve hours after it occurred. After the incident and before reporting it to police, she stayed the night at her boyfriend’s and then went home the next morning to change her clothes. Despite the officer’s description of the ex-wife as “distraught,” “traumatized,” and “terrified,” the evidence indicates that the ex-wife had “several independent interludes of reflective thought” that rendered her statements less than spontaneous. Therefore, the trial court erred in admitting the statements as excited utterances. However, the ex-wife’s statements were admissible as prior consistent statements to rehabilitate her credibility after defendant had attacked it. Therefore, any error was harmless. Any further improper testimony was cured by instructing the jury to disregard it. Finally, the cumulative effect of the matters raised on appeal did not deprive defendant of a fair trial.

Defendant also argued that the district court erred in allowing the ex-wife, her boyfriend, and the prosecutor to use the term “rape” rather than “sexual assault” to describe defendant’s conduct. In a sexual assault case, neither a witness nor a prosecutor is barred from using the term “rape” simply because the term no longer appears in the criminal statutes. Therefore, the court did not err in allowing the witnesses and prosecution to use this term. The judgments were affirmed.

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

Colorado Court of Appeals: Academic Theories Addressed in Research Studies Do Not Constitute Evidence

The Colorado Court of Appeals issued its opinion in People v. Bonan on Thursday, November 21, 2014.

Sexual Assault—Post-Conviction Relief—Crim.P. 35(c)—Scientific Research—New Evidence.

In 1988, Bonan was charged with four counts of sexual assault on a child—position of trust, and four counts of second-degree assault on a child. The charges stemmed from allegations by Bonan’s ex-girlfriend’s three young children that he had sexually assaulted them while living with them from July to November 1986. A jury convicted defendant as charged.

In February 2006, Bonan filed a motion for post-conviction relief under Crim.P. 35(c), asserting that recent scientific research has produced an undisputed body of facts that renders the state’s expert opinion testimony foundationless and contradicts the state’s experts’ proposition that they were capable of determining whether a child’s report is accurate. The motion characterized the research as newly discovered evidence. This motion was denied. Bonan filed another motion in 2011, asserting a newly discovered evidence claim similar to his 2006 motion, which was denied as successive and time barred.

On appeal, Bonan contended that the trial court erred in denying his post-conviction motion as untimely. Bonan’s motion was untimely because he did not assert justifiable excuse or excusable neglect in his motion. Further, because academic theories addressed in research studies do not constitute evidence, and therefore cannot constitute new evidence, Bonan had no justifiable excuse or excusable neglect for the late filing of his Crim.P. 35(c) motion.

Bonan further contended that the trial court erred in denying his post-conviction motion as successive. Absent application to the testimony used to convict him, the theories addressed in the academic studies Bonan identifies are not probative of his innocence and therefore do not constitute new evidence under Crim.P. 35(c). Accordingly, the trial court did not err in denying Bonan’s post-conviction motion as successive. The order was affirmed.

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

Colorado Court of Appeals: Court’s Exclusion of Evidence Not Prejudicial Because Defendant Had Opportunity to Raise Complete Defense

The Colorado Court of Appeals issued its opinion in People v. Brown on Thursday, November 20, 2014.

Murder—Evidence—Hearsay—Residual Exception—Search Warrant.

The victim, defendant’s ex-wife, was murdered in her home in the middle of the night. Defendant was charged and found guilty of her murder.

On appeal, defendant argued that the trial court violated his rights by precluding him from presenting evidence that the police investigation into the case was deficient. Specifically, defendant contended that his cross-examination of the prosecution’s expert about the limitations of DNA testing and evidence of a suspicious vehicle in the area on the night of the murder, both of which were excluded by the court, were relevant to show that the police investigation was deficient. However, any error in these rulings was harmless because defendant was not prevented from presenting a complete defense.

Defendant also argued that the trial court erred by admitting, under the residual exception to the hearsay rule (CRE 807), statements the victim made to her sister, her mother, and two coworkers regarding the couple’s relationship. Defendant contended that the statements lacked particularized guarantees of trustworthiness. The trial court was in the best position to evaluate the proffered testimony of the witnesses and to consider the circumstances under which the declarant made the particular statements. Therefore, the trial court did not abuse its discretion in determining that the statements were sufficiently trustworthy as to satisfy CRE 807. Moreover, the court’s findings were sufficient to satisfy the Colorado Constitution’s Confrontation Clause.

Defendant further argued that the trial court erred by failing to suppress evidence police obtained when they executed the warrant because the search exceeded the scope of the warrant. Specifically, defendant contended that the backpack that defendant placed in the vehicle just before police seized his vehicle should not have been included in the search. There is no dispute that the backpack was “within” the vehicle at the time it was seized; therefore, seizing it was not outside the scope of the warrant. The judgment was affirmed.

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

Tenth Circuit: Guilty Plea Does Not Waive Defendant’s Right to Contest Evidence Admission for Other Purposes

The Tenth Circuit Court of Appeals issued its opinion in United States v. Farmer on Wednesday, November 5, 2014.

Joseph Farmer was pulled over on I-40 in Oklahoma in June 2012. The officer who stopped him smelled marijuana and asked to search the car. During the search, the officer found a loaded .357 revolver under the front edge of the driver’s seat. Based on these facts, a jury convicted Farmer of being a felon in possession of a firearm, and he was sentenced to 60 months’ imprisonment followed by three years’ supervised release. Farmer appealed, contending the evidence of his 2010 firearm possession should have been suppressed because the evidence was obtained in an unlawful search.

The Tenth Circuit examined the prior firearm possession charge, and determined that although Farmer had pled guilty to the possession charge, thereby waiving his right to appeal that charge, he did not waive the right to assert that the search was unlawful for other purposes. The Tenth Circuit found that it was error for the district court to rule that Farmer had waived his right to challenge the search by pleading guilty. However, it found that the error was harmless beyond a reasonable doubt. Farmer’s defense at trial was that he did not know that the firearm was in the car. The government presented evidence that Farmer tried to distract the officer while he was searching the driver’s side of the car, muttered about the gun while the officer was searching, and tried to get his passenger to claim the gun as hers. These facts overwhelmingly support the conviction, regardless of the evidence of the prior conviction.

Farmer also argued the prosecutor’s closing remarks deprived him of a fair trial. During closing, the prosecutor made statements that the deputy had nothing to gain by planting a gun in Farmer’s car, which Farmer argued impermissibly vouched for the officer’s credibility. The Tenth Circuit disagreed, finding instead that the prosecutor was addressing the defense’s argument that the officer had planted the gun. The Tenth Circuit found that the prosecutor’s other remarks were harmless beyond a reasonable doubt.

The Tenth Circuit affirmed Farmer’s conviction.

Various JDF Forms Amended in October and November

The Colorado State Judicial Branch continued amending JDF forms in October and November 2014, with updated forms released in the criminal, domestic relations, FED, probate, and miscellaneous categories. Forms are available for download here in PDF format, and are available in Word or PDF from the State Judicial forms page.

CRIMINAL

  • JDF 219 – “Juvenile Delinquency – Application for a Public Defender” (issued 11/14)

DOMESTIC RELATIONS

  • JDF 211 – “Request to Reduce Payment for ODR Services and Supporting Affidavit” (revised 10/14)

FORCIBLE ENTRY & DETAINER (FED)

  • JDF 100 – “Instructions for Forcible Entry and Detainer (FED)/Eviction” (revised 11/14)
  • JDF 140 – “Instructions for Forcible Entry and Detainer (FED)/Eviction for Owner Occupied Mobile Home” (revised 11/14)

MISCELLANEOUS

  • JDF 450 - “Order re: Appointment of Counsel at State Expense Other Than the Public Defender in a Criminal or Juvenile Delinquency Proceeding” (revised 11/14)

PROBATE

  • JDF 906 – “Instructions for Probate With a Will” (revised 10/14)
  • JDF 907 – “Instructions for Probate Without a Will” (revised 10/14)

For all of State Judicial’s JDF forms, click here.

Tenth Circuit: States Have Wide Latitude to Determine Which Offenses are Serious for ACCA Purposes

The Tenth Circuit Court of Appeals issued its opinion in United States v. Titley on Tuesday, November 4, 2014.

John Ervin Titley pled guilty to being a felon in possession of a firearm. He was sentenced, and his sentence was enhanced due to the provisions of the Armed Career Criminal Act (ACCA), due to his three prior felony convictions. Although Mr. Titley agrees his Missouri armed robbery conviction qualifies for ACCA purposes, he argues that his convictions for possession of marijuana with intent to distribute in Arkansas and unlawful possession of marijuana with intent to distribute in Oklahoma should not qualify because in 19 other states and the District of Columbia those crimes would not have constituted “serious drug offenses.” Mr. Titley argued this violates the Equal Protection clause.

The Tenth Circuit, applying rational basis review, analyzed whether the challenged ACCA provision is rationally related to a legitimate government purpose, and found that it was. ACCA’s purpose is to incapacitate repeat offenders who possess firearms and deter such conduct in others. Mr. Titley does not challenge the purpose, but instead argues ACCA violates equal protection because it does not apply uniformly to similarly situated defendants. The Tenth Circuit found that Congress afforded the states wide latitude in determining which crimes they regarded as serious. Rational basis does not require uniformity.

The sentence was affirmed.

Tenth Circuit: Government’s Late Filing Bars District Court Jurisdiction for Sentence Reduction

The Tenth Circuit Court of Appeals issued its opinion in United States v. Baker on Tuesday, October 28, 2014.

Defendant Frederick Baker and co-defendant Mark Akins were indicted on a fraudulent investment scheme. The trials were separate, and Baker was eventually sentenced to 41 months’ imprisonment, the low end of the Guidelines range. Three weeks after sentencing, Baker met with prosecutors and provided them information about his and Akins’ role in the fraud and offered to testify against Akins. An assistant U.S. attorney told Baker he would recommend a sentence reduction to the court based on Baker’s proffered information. Twice during the year following his sentencing, Baker and his attorney asked the government to file a Crim. P. 35(b) motion for sentence reduction. The government did not do so, instead waiting until the completion of Akins’ restitution, which fell outside Rule 35(b)’s one year time limit for requests for sentence reduction. Eventually, the government did petition the district court for a sentence reduction under Rule 35(b)(2)(B), but the district court denied the motion as time-barred. Baker appealed.

The Tenth Circuit examined Rule 35(b), which allows the government to petition the court within one year of sentencing for a sentence reduction for defendants who provide information that materially assists the government. The government filed its motion under 35(b)(2)(B), which allows an exception for the one-year time bar for defendants whose information did not become useful until after the expiration of the one-year period. In its motion, the government said that Baker’s information was useful both before and after the expiration of the one-year period, but the district court found that it lacked jurisdiction to hear the motion due to Rule 35’s one-year time bar. The Tenth Circuit, though sympathetic to Baker, could find no reason to reverse the district court’s finding. The ruling was affirmed.

Tenth Circuit: Parental Privilege is Constitutionally Protected Interest and Restrictions on Parenting Require Heightened Justification

The Tenth Circuit Court of Appeal issued its opinion in United States v. Bear on Friday, October 31, 2014.

In 2001, Wesley A. Bear was convicted in Iowa state court of two counts of committing lascivious acts on a child following offenses involving two children under 12 years of age. As a result of these convictions, Mr. Bear is required to register for life as a sex offender under the Sex Offender Registration and Notification Act (SORNA). In 2010, Mr. Bear was convicted of a SORNA violation in a different part of Iowa. He subsequently purchased a trailer home and registered at the trailer’s address, but he and his wife and children moved to Oklahoma City and Mr. Bear failed to update his registration. He was arrested and charged with failure to comply with SORNA. He pled guilty, and was sentenced to 23 months imprisonment followed by 5 years’ supervised release with sex offender conditions, including requirements that he submit to sex offender mental health assessment and treatment, a prohibition on being at any residence where children under age 18 are residing, and a prohibition on associating with children under the age of 18 unless in the presence of a responsible adult who is aware of his criminal background. He objected to the imposition of the special conditions, arguing they were too remote in time to be reasonably related as conditions of his supervised release, that they prevented him from parenting his own children, and that he previously underwent sex offender mental health treatment around the time of his previous conviction. The district court overruled Mr. Bear’s objections and imposed the special conditions, and Mr. Bear appealed.

The Tenth Circuit, noting that district courts have broad authority to impose special conditions of supervised release, first addressed Mr. Bear’s contention that his prior convictions were too remote to be reasonably related to his supervised release. The Tenth Circuit found that, although his convictions were 12 years old and he had shown no further proclivity toward sexual deviance since his original conviction, the facts surrounding the original incidents were troubling, and the requirements of mental health assessment and treatment were appropriate. The Tenth Circuit also found no error in the district court’s reliance on the probation officer to determine when Mr. Bear was ready to be released from mental health treatment.

Next, the Tenth Circuit turned to Mr. Bear’s argument that the condition against being at any residence where minor children resided prevented him from associating with his own children. The Tenth Circuit found that the imposition of special conditions should not deprive a parent of his constitutionally protected parental privilege. Mr. Bear had not committed any sexual offense in the 12 years since his original offense, did not display continuing sexually deviant tendencies, and had never shown himself to be a danger to his own three children. The Tenth Circuit vacated the imposition of conditions that prevented Mr. Bear from parenting his own children. However, the Tenth Circuit found no error in the imposition of the special conditions as related to other children.

The district court’s sentence was affirmed as related to the mental health assessment and treatment, and also as to the restrictions involving unrelated children, vacated as to the restrictions regarding Mr. Bear parenting his own children, and remanded for further proceedings.

Colorado Court of Appeals: Inmate’s Challenge to DOC Policies Not Barred by 30-Day Claims Limit

The Colorado Court of Appeals issued its opinion in Garcia v. Harms on Thursday, November 6, 2014.

Timely Filing—Code of Penal Discipline Claim.

Garcia was charged with assault under the Code of Penal Discipline (COPD) after a corrections officer accidentally pricked herself on a sewing needle he kept in his cell. Garcia was not present at the time, but he was charged and found culpable and disciplined. He was also required to pay restitution.

Garcia challenged his conviction, claiming: (1) his disciplinary hearing did not comply with constitutional due process requirements; (2) the COPD definition of “assault” was unconstitutionally vague on its face as applied to him; (3) the Colorado Department of Corrections (CDOC) exceeded its authority when it ordered him to pay restitution; (4) CRS §17-1-111, which exempts CDOC from certain provisions of the Administrative Procedure Act, violates constitutional separation of powers principles; and (5) the collection of restitution unjustly enriched CDOC. The district court dismissed Garcia’s complaint—filed nearly two years after his COPD conviction became final—as time-barred under CRCP 106.5.

Garcia challenged the dismissal, except as to claims one and five. He arguedthat claims two through four challenged “CDOC’s establishment of policies and general application of those policies” and not his disciplinary conviction and therefore were not barred under CRCP 106.5. The Court of Appeals agreed as to Garcia’s fourth claim and portions of his second and third claims.

Portions of Garcia’s second and third claims challenged only quasi-judicial action. However, the part of claim two asserting that the COPD definition of assault under which Garcia was convicted was unconstitutionally vague on its face, as well as the portion of claim three asserting the CDOC has adopted a monetary restitution policy that violates the Separation of Powers Clause, are not related to quasi-judicial actions. Also, claim four asserted that CRS §17-1-111 facially violates separation of powers principles. The Court held that these claims were covered by CRS §13-80-102(1)(h) as “actions against any public or governmental entity . . . ” insofar as defendants Governor Hickenlooper and the State of Colorado are concerned, and were subject to the one-year statute of limitations under the exceptions listed in CRS §13-80-103 insofar as CDOC officials and employees were concerned.

Accordingly, the Court affirmed the order dismissing Garcia’s as applied constitutional challenges in claims two and three and the remaining clams against the executive director of the CDOC, the warden of the Sterling Correctional Facility, the hearing officer who presided over his disciplinary hearing, and two unnamed correctional officers. It reversed the order dismissing Garcia’s fourth claim against Governor Hickenlooper and the State of Colorado. It also reversed the dismissal of Garcia’s facial constitutional challenge against those defendants in claim two and his facial constitutional challenge to CDOC policies in claim three. The case was remanded for further proceedings.

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