July 28, 2015

Colorado Court of Appeals: Counsel Not Ineffective for Failing to Appeal POWPO Conviction to Supreme Court

The Colorado Court of Appeals issued its opinion in People v. Ray on Thursday, July 16, 2015.

Possession of a Weapon by a Previous Offender—Ineffective Assistance of Counsel—Certiorari Petition—U.S. Supreme Court—Investigation—Affirmative Defense.

After police officers observed Ray driving his vehicle straight through an intersection while in a left turn lane, exceeding the speed limit, playing loud music, and driving recklessly, they stopped and searched his car, discovering a BB gun and a firearm. Ray was on probation after having been adjudicated a delinquent on controlled substances and motor vehicle theft charges. Ray was charged with and convicted of Possession of a Weapon by a Previous Offender (POWPO). Ray is on death row after having been convicted of first-degree murder in a separate case, and his POWPO conviction was used as an aggravating factor in determining his death sentence. Ray filed a Crim.P. 35(c) motion for post-conviction relief, which was denied.

On appeal, Ray contended that appellate counsel rendered ineffective assistance by failing to file a certiorari petition with the U.S. Supreme Court. Ray had no right to counsel to pursue a petition for certiorari review in the Supreme Court. Further, he did not establish any resulting prejudice from failure to file a petition, because (1) he failed to show that it was likely the petition would be granted, (2) the exclusionary rule would not have precluded suppression of the firearm found in his car, and (3) the good faith exception to the exclusionary rule would have ultimately precluded suppression of the firearm.

Ray also contended that trial counsel rendered ineffective assistance by failing to investigate whether others had driven his car before the POWPO arrest. Because there was no reasonable probability that the result of the trial would have changed if evidence that others had driven the car had been admitted, the court did not err in determining this claim was raised and resolved on direct appeal.

Finally, Ray contended that trial counsel rendered ineffective assistance by failing to investigate a potential affirmative defense based on his Second Amendment right to possess firearms for self-defense. However, such a defense was not supported by the evidence and would have conflicted with Ray’s theory of defense that he did not know the firearm was in his car. The order was affirmed.

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

Colorado Court of Appeals: Court Erred by Allowing Defense Counsel to Withdraw Without Questioning Defendant

The Colorado Court of Appeals issued its opinion in People v. Cardenas on Thursday, July 16, 2015.

Motion to Withdraw—Reversal.

Defendant was found guilty of various counts of second-degree burglary, attempted second-degree burglary, and theft. On appeal, defendant contended that the court’s failure to include him in a hearing on his attorney’s motion to withdraw and failure to inquire about his objections to or confusion about that motion, before allowing the attorney to withdraw, require reversal of his convictions. Defense counsel, who had replaced a public defender, filed a motion to withdraw, citing substantial and irreconcilable differences of opinion concerning the course of scope of representation. The court asked defendant’s counsel about the reasons for withdraw without the presence of defendant, and then asked defendant about the reasons for withdrawal, including difficulties with communication, but did not rule on the motion. The case was transferred to another judge, who held an in camera review without the presence of defendant and thereafter allowed defense counsel to withdraw. Without knowing what communication occurred between counsel and the court, defendant’s absence created a risk that his right to a fair trial was impaired. For this reason and because defendant’s presence was required by the rules of criminal procedure, the second judge abused his discretion in granting the motion without including defendant in the proceedings. Accordingly, the judgment of conviction was reversed, defendant’s sentence was vacated, and the case was remanded for a new trial.

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

Colorado Court of Appeals: Suppression of DNA Evidence Not Necessary Despite Warrantless DNA Collections

The Colorado Court of Appeals issued its opinion in People v. Lancaster on Thursday, July 16, 2015.

Sexual Assault—Motion to Suppress—DNA Evidence—Rape Shield Statute—Prior False Reports.

Lancaster was convicted of numerous counts of kidnapping, sexual assault, menacing, and third-degree assault. He was sentenced to an indeterminate prison term of twenty-five years to life on the sexual assault counts.

On appeal, Lancaster contended that the trial court erred in denying his motion to suppress DNA evidence that he asserted was developed as a result of violations of his federal and state constitutional rights. After Lancaster was arrested on other charges, the police took a buccal swab of Lancaster’s mouth, which resulted in a match with the DNA profile of the man who had sexually assaulted the victim in this case. Based on this initial match, the police obtained an order to collect another DNA sample from Lancaster, which was also a match with the DNA profile of the man who had sexually assaulted the victim in this case. Because neither of the subsequent crimes for which Lancaster was arrested were felonies, the police were not authorized to take the samples. However, the police’s violation of the law was not willful, and the government’s interest in the DNA sample was not outweighed by Lancaster’s privacy interests. Therefore, the trial court did not err in denying Lancaster’s motion to suppress the DNA profile that was allegedly developed as a result of the prior warrantless collections of DNA evidence from him.

Lancaster also contended that the trial court abused its discretion and violated his constitutional right to present a defense when it denied without an evidentiary hearing his motion to allow him to introduce evidence that the victim had a history of making false allegations of sexual assault. The rape shield statute requires a defendant to make an offer of proofthat the alleged victim made multiple reports of prior or subsequent sexual assaults that were false. Here, although the victim made two prior allegations of sexual assault against other individuals, Lancaster’s offer of proof that the second charge was dismissed was insufficient to demonstrate the falsity of the victim’s second report. Accordingly, Lancaster’s offer of proof demonstrated, at most, only one prior false report of sexual assault. The offer was thus insufficient to warrant a hearing under the rape shield statute. Further, because Lancaster denied that he knew the victim, he was not denied the right to present a complete defense because this evidence was contrary to his theory of the case.

Finally, Lancaster contended that the trial court misapprehended the sentencing range for sexual assault and erroneously sentenced him outside the presumptive range. Because the record was not sufficiently developed for the Court of Appeals to determine this issue, the sentences on the sexual assault counts were vacated and the case was remanded for resentencing on those counts.

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

Tenth Circuit to Implement eVoucher Effective July 20, 2015

The Tenth Circuit announced that effective July 20, 2015, all Tenth Circuit Appellate Criminal Justice Act vouchers must be submitted electronically. The eVoucher program is a nationally supported web-based program for the preparation, submission, monitoring, and approval of Criminal Justice Act vouchers. Practitioners can access the Tenth Circuit’s eVoucher database here. Only Internet Explorer may be used to access the eVoucher database; Chrome and Firefox are not allowed.

For information and training videos about the eVoucher database, click here. For the Tenth Circuit’s Criminal Justice Act policies and procedures, click here.

Tenth Circuit: Defendants Should be Granted Wide Leave to Supplement Habeas Petition

The Tenth Circuit Court of Appeals issued its opinion in Carter v. Bigelow on Tuesday, June 2, 2015.

In 1985, Douglas Stewart Carter was convicted of the murder of Eva Olesen in Provo, Utah. No physical evidence tied Carter to the murder, but his wife tipped off authorities that her husband visited his friend, Epifanio Tovar, the night of the murder, and she suspected her missing .38 handgun may have been used in the murder. When they interviewed Mr. Tovar, he told police that Mr. Carter had left Mr. Tovar’s home in the middle of the night with the intent to steal money and returned in different clothes appearing nervous. Mr. Tovar told police Mr. Carter said he stabbed Mrs. Olesen multiple times, when she did not die he shot her, and he asked Mr. Tovar to dispose of the gun. Mr. Carter was arrested in Nashville, Tennessee, and on the second day of questioning an officer from the Provo Police Department obtained a confession from Mr. Carter. Mr. Carter was charged with first-degree murder, although the only evidence corroborating his confession was the testimony of Mr. Tovar and his wife, Lucia, who spoke only Spanish but testified that she heard Mr. Carter confess to the murder to her husband.

Mr. Carter filed his first state court petition for post-conviction relief in 1995, and the state court denied all his claims. The Utah Supreme Court affirmed. Mr. Carter’s habeas proceedings began in 2002, and in 2005 the federal district court granted Mr. Carter’s request for stay during the pendency of his unexhausted state court claims. In 2008, the district court granted Utah’s motion to lift the stay and reopen the case, and in 2010, the district court granted Utah’s motion to dismiss in part, finding that a number of Mr. Carter’s claims were procedurally barred.

In August 2011, Mr. Carter filed a new motion for a stay to exhaust claims of prosecutorial misconduct based on newly discovered evidence that Epifanio and Lucia Tovar received cash payments and other favorable treatment from the Provo Police Department in advance of testifying. The district court denied his petition. Mr. Carter then moved to amend or supplement his petition, which the district court also denied. The district court subsequently denied his petition for a writ of habeas corpus, and Mr. Carter timely appealed.

The Tenth Circuit noted that authorization to supplement pleadings should be liberally granted, and found that Mr. Carter’s claims of prosecutorial misconduct could have been characterized as an amendment or supplement to his petition, since he sought to supplement before the district court ruled on his motion, his petition contained a claim of improper prosecutorial vouching for Mrs. Tovar, and his initial and amended habeas petition contained claims that the prosecution suppressed evidence of favorable treatment to Mr. and Mrs. Tovar in exchange for their testimony. The district court had relied on a footnote in a Tenth Circuit opinion regarding the victim’s son’s request for mandamus, where that panel of the Tenth Circuit noted that the defendant must follow the procedures in § 2244 for any new claims. The Tenth Circuit found the district court misconstrued the footnote, and did not interpret it to bar supplemental claims. The Tenth Circuit reversed and remanded with directions for the district court to allow supplementation based on BradyNapue, and their progeny. The Tenth Circuit also found that Mr. Carter’s request for supplementation was timely, since the Tovars had been previously unavailable per Utah’s assertions and the prosecution informed Mr. Carter that he had all the information they possessed. The Tenth Circuit found the state’s attempt to bar Mr. Carter’s claims especially disingenuous.

Mr. Carter next contended his guilt-phase counsel was ineffective for failing to obtain the prosecution’s file against Mr. Carter and failing to adequately challenge the admission of Mr. Carter’s confession. The Tenth Circuit found that the failure to obtain the prosecution file was almost certainly error, but the error was harmless because Mr. Carter was unable to show he was prejudiced by the error. The Tenth Circuit supported the Utah Supreme Court’s conclusion that Mr. Carter failed to show prejudice. Next analyzing Mr. Carter’s claim regarding the admission of his confession, the Tenth Circuit again found no error in the Utah Supreme Court’s ruling.

Next, Mr. Carter alleged ineffective assistance of appellate counsel for failing to use evidence in the prosecution’s file to establish his ineffective assistance claim against guilt-phase counsel. The Tenth Circuit again found that Mr. Carter’s argument failed at the prejudice prong of the Strickland analysis. Mr. Carter also argued his resentencing counsel was ineffective for failing to investigate and present mitigating evidence, failing to strike a juror who Mr. Carter claims was racist and supported the death penalty, and failing to challenge the integrity of the proceedings. The Tenth Circuit found that resentencing counsel interviewed Mr. Carter’s family members and presented mitigating evidence. As to the juror, the Circuit noted that although he stated he believed in the “mark of Cain,” or that dark skin represents a punishment for biblical Cain killing Abel, he also stated it would not affect his view of the case at hand, and although he believed the death penalty was warranted for premeditated murder, making the decision to sentence someone to death would haunt him. The Tenth Circuit found no error in allowing the juror on the panel. As to the integrity claim, the jury was specifically instructed that it was not to consider the question of defendant’s guilt or innocence, so this claim failed as well.

The Tenth Circuit also evaluated and rejected Mr. Carter’s claims of violations of the Confrontation Clause due to the admission of transcripts of the Tovars’ testimony at resentencing, and that the admission of his confession violated his right not to be compelled as a witness against himself. As to Mr. Carter’s cumulative error claim, the Tenth Circuit found it premature, and vacated the district court’s denial of habeas relief on this ground until resolution of Mr. Carter’s remaining claims.

The Tenth Circuit reversed the district court’s denial of Mr. Carter’s motion to supplement or amend his habeas petition and remanded for further proceedings on that issue. It vacated the district court’s denial of habeas relief on cumulative error grounds, and affirmed in all other respects.

Tenth Circuit: Exclusionary Rule Should Not Apply When Officer’s Reasonable Belief Mistaken

The Tenth Circuit Court of Appeals issued its opinion in United States v. Esquivel-Rios on Wednesday, March 27, 2015.

Antonio Esquivel-Rios was stopped in Kansas while driving a minivan with Colorado temporary tags. The officer who stopped him ran the temporary tags and received a response that there was no record of the vehicle, and the dispatcher noted that Colorado temporary tags usually don’t return. Because of the non-returning tags, the officer conducted a traffic stop, and a later search revealed over a pound of methamphetamine in a secret compartment in the vehicle. During the initial proceedings in the district court, Esquival-Rios sought to suppress all evidence obtained from the vehicle search, contending the traffic stop violated his Fourth Amendment rights because the officer who stopped him lacked reasonable suspicion of any wrongdoing. The district court disagreed and denied Esquival-Rios’ motion to suppress. He was eventually convicted of possession with intent to distribute methamphetamine.

On direct appeal, the Tenth Circuit remanded, finding “too many unanswered questions” and “too many record ambiguities” regarding the database reliability for the district court to conclude no Fourth Amendment violation had occurred. On remand, the district court conducted an evidentiary hearing, where it heard testimony from the officer, dispatcher, and various Colorado employees, as well as written responses from the Colorado Bureau of Investigation and the Colorado Department of Revenue. The evidence established that at the time of Esquival-Rios’ stop, the Colorado Department of Revenue did not transmit information about temporary tags to the Colorado Bureau of Investigation, which was responsible for maintaining the nationwide database, so every Colorado temporary tag run by an out of state officer would have returned as “no record.” However, the officer and dispatcher both testified they had not been specifically advised that this result would occur with all Colorado temporary tags, and the trooper testified he did not believe the information was categorically unavailable at the time of the traffic stop. The district court found that it had no choice but to conclude that the negative report was not particularized evidence that the vehicle was unregistered, and therefore a Fourth Amendment violation occurred. However, the district court also found no basis to apply the exclusionary rule, since the trooper reasonably relied on his mistaken belief about the database inquiry. Esquival-Rios again appealed.

On appeal, the government contended the officer’s reasonable but mistaken belief was a constitutionally sufficient ground to conduct the traffic stop, and in the alternative that if the court found a Fourth Amendment violation, the exclusionary rule should not apply because there was no police misconduct to deter. The government further contended that deterrence was inappropriate because the problem was remedied—the Colorado Department of Revenue now transmits information on temporary tags to the Colorado Bureau of Investigation for inclusion in the national database.

The Tenth Circuit analyzed the exclusionary rule, and noted that its purpose is to deter Fourth Amendment violations, and suppression is only appropriate when it will result in “appreciable deterrence” or alter the behavior of law enforcement officers. In this case, the “good-faith” exception to the exclusionary rule applied because the officer reasonably relied on the database information. Further, the Tenth Circuit found there was no recurring conduct to deter since the Colorado agencies changed their business practices to ensure that temporary tag information was included in the national database.

The Tenth Circuit affirmed the district court’s decision.

Colorado Court of Appeals: Sentence Longer than Three Times Presumptive Range Illegal

The Colorado Court of Appeals issued its opinion in People v. Isom on Thursday, July 2, 2015.

Sexual Assault on a Child—Habitual Sexual Offender—Sentence—Extraordinary Aggravating Circumstances.

In 2003, a jury found defendant guilty of sexual assault on a child, enticement of a child, and contributing to the delinquency of a minor based on evidence that he had given a 14-year-old girl alcohol and then sexually assaulted her. The district court adjudicated him a habitual sex offender against children, and imposed consecutive sentences of forty years to life in prison on the sexual assault on a child count, and five years to life in prison on each of the counts of enticement of a child and contributing to the delinquency of a minor. The court later corrected the sentence for contributing to the delinquency of a minor to a determinate sentence of five years in prison.

On appeal, defendant argued that his sentence of forty years to life for sexual assault on a child is illegal. CRS §§ 18-3-412(2) and 18-1.3-1004(1)(c) require a district court to sentence a habitual sex offender against children to an indeterminate prison sentence with a lower term of three times the maximum of the presumptive range, unless the court finds extraordinary aggravating circumstances under CRS § 18-1.3-401, in which case the lower term can be up to six times the maximum of the presumptive range. Thus, under CRS § 18-1.3-1004(1)(c), the statutory minimum for the bottom end of defendant’s indeterminate sentence for this class 4 felony was eighteen years, and if extraordinary aggravating circumstances existed, the court could have imposed a bottom-end sentence of no more than thirty-six years. Because the court sentenced defendant to a bottom-end term of forty years, it was an illegal sentence. The sentence was vacated and the case was remanded for resentencing.

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

Colorado Court of Appeals: No Error in Allowing Lay Witness Testimony about Shoeprint Similarity

The Colorado Court of Appeals issued its opinion in People v. Vigil on Thursday, July 2, 2015.

Challenge for Cause—Burglary—Simple Variance—Unanimity Instruction—Lay Witness—Footprint Evidence.

A jury convicted Vigil of second-degree aggravated motor vehicle theft and second-degree burglary for taking a truck, motorcycle, flat-screen television, DVD player, and stereo from Casey Caldon’s farm. On appeal, Vigil contended that the trial court reversibly erred when it denied his challenge for cause to juror C.A. Although C.A. had performed electrical work for the Caldons over a number of years, he did not exhibit any bias and his statements indicated he could render an impartial verdict. Therefore, the trial court did not err in denying Vigil’s challenge for cause as to this juror. Vigil also claimed that the court erred in granting the prosecutor’s challenge for cause to prospective juror D.K. because that juror might have voted to acquit him. Here, Vigil’s claim failed because a defendant is not entitled to have any particular juror serve in his or her case.

Vigil also asserted that the prosecutor’s closing argument impermissibly expanded the second-degree burglary charge to include burglary of the “lean-to” (a shed up against a shop on the farm). In the bill of particulars, the prosecutor alleged that Vigil burglarized three structures: the trailer, the north shop, and the tractor. In closing argument, the prosecutor alleged that Vigil entered the lean-to to steal the truck. Therefore, a simple variance occurred. Because Vigil did not suffer prejudice from the simple variance, however, reversal was not warranted.

Vigil further argued that the trial court reversibly erred by not giving a modified unanimity instruction regarding the burglary count. Where the incidents occurred in a single transaction, such as here, the prosecutor need not elect among acts, and the trial court need not give a modified unanimity instruction. Therefore, the trial court did not err by not giving the modified unanimity instruction to the jury.

Vigil argued that the trial court erred by permitting Sergeant Crown, a lay witness, to testify about shoeprint evidence and by not excluding the shoeprint evidence for failing to disclose a Colorado Bureau of Investigation (CBI) report indicating that its analysis of the shoeprint evidence was inconclusive. Crown’s testimony was based on general measurements and peculiarities common to the shoeprints and Vigil’s shoes that were readily recognizable to a lay witness. Accordingly, the trial court’s finding that Crown’s testimony did not constitute expert opinion was not manifestly unreasonable, arbitrary, or unfair. Finally, the discovery violation did not result in reversible error because the content of the CBI report was presented through Crown’s testimony. The judgment was affirmed.

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

Tenth Circuit: No Error in Joint Conspiracy Trial Where Defendant Only Implicated in One Crime

The Tenth Circuit Court of Appeals issued its opinion in United States v. Hill on Friday, May 22, 2015.

Two men robbed an Arvest Bank in Tulsa, Oklahoma in 2011, and a police officer investigating the robbery saw Dejuan Hill driving a car away from the house where the stolen money was found. During Dejuan’s brothers’ trial for the robbery, the police officer recognized Dejuan outside the courtroom. The prosecution changed its theory of the case to include Dejuan as one of the bank robbers, based largely on the officer’s testimony and other circumstantial evidence from cellphone records. Dejuan was indicted, tried, and convicted of both robbing the Arvest Bank and taking part in a larger conspiracy to rob banks, a credit union, and pharmacies in the Tulsa area. Of eight alleged co-conspirators, only three proceeded to a joint trial — Dejuan, his brother Vernon, and Deandre Hopkins. Six robberies were discussed in depth at trial, but Dejuan was only implicated in the robbery of the Arvest Bank. Dejuan appealed his convictions, arguing (1) there was insufficient evidence to convict him of robbing the Arvest Bank, (2) there was a substantially prejudicial variance between the single global conspiracy charged in the indictment and the evidence of individual conspiracies the government produced at trial, (3) the trial court erred by not granting his motion for misjoinder or by failing to sever his trial from that of his co-defendants, and (4) the trial court erred by denying his motion to exclude gang evidence as unfairly prejudicial under FRE 403.

The Tenth Circuit analyzed the evidence tying Dejuan to the Arvest Bank robbery and found that although it was circumstantial and required the jury to make inferential leaps, it was sufficient to support his conviction. Dejuan was seen leaving the residence where the money was eventually found shortly after the robbery, and someone had used a cellphone right around the time the officer saw Dejuan leaving the house. Further, video footage showed that the robber was approximately the same height as Dejuan and probably had a similar skin tone. The majority of the panel found this evidence sufficient to support his conviction regarding the Arvest Bank robbery.

The Tenth Circuit next addressed Dejuan’s argument regarding the conspiracy charge. Dejuan asserted that at most he could be convicted of a smaller conspiracy to rob the Arvest Bank and the government failed to prove he was part of a larger conspiracy, causing him to be substantially prejudiced. The Tenth Circuit agreed there was a variance, since there was “scant evidence tying Dejuan to any larger conspiracy” other than the Arvest Bank robbery. The evidence presumed to establish Dejuan’s participation in the larger conspiracy was primarily the police department’s certification of his involvement in the Hoover Crips gang, and even the government’s witness was unsure whether Dejuan was a Hoover Crip. The Tenth Circuit next analyzed whether this created a prejudicial spillover, first deciding that the number of conspiracies proved and defendants tried was too small to inherently prejudice Dejuan. The majority panel found that the jury would have no problem distinguishing Dejuan’s conduct from that of his co-defendants. Likewise, the Tenth Circuit found little possibility that the variance would have caused the jury to misuse the evidence, since the evidence was not so intricate the jury could not distinguish Dejuan’s actions. The Tenth Circuit then analyzed the strength of the evidence underlying the conspiracy conviction and found that although it was a close call, the evidence proving Dejuan’s involvement in the smaller conspiracy was strong enough to minimize the danger of prejudicial spillover. The majority found possible benefit to Dejuan of the global conspiracy evidence, since it gave him an avenue to discredit the Arvest Bank evidence.

The Tenth Circuit next addressed Dejuan’s contention that the trial court improperly denied his motion for misjoinder. Dejuan argued the indictment failed to show facts demonstrating a common scheme or involving all of the defendants and all of the charged offenses. Dejuan contended he was prejudiced because the jury heard evidence about robberies in which he was not involved and this led to the possibility of the jury finding his guilt by association. He believes the trial court should have allowed him to have a separate trial to cure the inference of guilt by association. The majority disagreed, finding that Rule 14’s language that the court may provide “any other relief” supported the trial court’s use of limiting instructions. Because Dejuan did not point to any specific instances of prejudice but rather relied on a broad assertion of guilt by association, the court found his assertions insufficient to demonstrate prejudice.

Finally, the Tenth Circuit addressed Dejuan’s argument that the trial court erroneously denied his motion in limine to exclude evidence of his gang affiliation. Because the government introduced no evidence showing his gang membership was relevant to the issues at trial and it was unfairly prejudicial, Dejuan argues the evidence of his gang affiliation should have been excluded. Although the Tenth Circuit acknowledged that the trial evidence established only smaller conspiracies and the only evidence tying Dejuan to the larger conspiracy was his gang affiliation, the Tenth Circuit determined that these two determinations were subject to “hindsight bias” and there was no abuse of discretion at the time the trial court decided to include the evidence.

The majority panel concluded that although Dejuan was correct that a variance existed, it did not prejudice Dejuan so as to necessitate reversal. The district court’s judgment was affirmed in all other respects. Judge McHughs wrote a thoughtful dissent, disagreeing with the majority’s conclusion that the variance did not prejudice Dejuan and noting the weakness of the evidence against him.

Colorado Supreme Court: Admissibility of Alternate Suspect Evidence Should Be Evaluated on Case-by-Case Basis

The Colorado Supreme Court issued its opinion in In re People v. Elmarr on Monday, June 29, 2015.

Alternate Suspect Evidence—Relevance—Hearsay—CRE 403.

In this case, the Supreme Court set forth the proper framework for analyzing the admissibility of alternate suspect evidence. The Court held that the admissibility of such evidence ultimately depends on the strength of the connection between the alternate suspect and the charged crime. The touchstone of relevance in this context is whether the evidence establishes a non-speculative connection or nexus between the alternate suspect and the crime charged. Where the evidence concerns other acts by the alternate suspect, a court must look to whether all the similar acts and circumstances, taken together, support a finding that the same person was probably involved in both the other act and the charged crime. CRE 404(b) principles guide this analysis. In addition, where the evidence concerns statements by the alternate suspect, a court must determine whether the alternate suspect’s statements meet the requirements of CRE 804(b)(3) or any other applicable hearsay exception. Finally, even relevant alternate suspect evidence may be excluded if its probative value is substantially outweighed by countervailing policy considerations under CRE 403, such as the danger of confusion of the issues or misleading the jury, or by considerations of undue delay.

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

Colorado Supreme Court: Exclusion of Public During Trial was More Than Fleeting Occurrence and Violated Sixth Amendment

The Colorado Supreme Court issued its opinion in People v. Hassen on Monday, June 29, 2015.

Sixth Amendment Right to Public Trial.

At respondent’s trial, the trial court completely closed the courtroom during the testimony of two undercover officers. The Supreme Court granted certiorari to consider whether this closure constituted structural error. The Court held that the closure violated respondent’s Sixth Amendment right to a public trial and rejected the People’s argument that the closure was so trivial that it did not implicate respondent’s Sixth Amendment right. Accordingly, the Court affirmed the judgment of the court of appeals.

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

Colorado Supreme Court: Proper Remedy for Inadequate Batson Findings is Remand for Further Findings

The Colorado Supreme Court issued its opinion in People v. Rodriguez on Monday, June 29, 2015.

Batson Challenges.

The Supreme Court held that when a trial court conducts an inadequate inquiry into an equal protection challenge to the exercise of a peremptory strike, the proper remedy is to remand the case so that the trial court may conduct the three-part analysis announced in Batson v. Kentucky, 476 U.S. 79 (1986), as it is described in this opinion. An inquiry is inadequate when the trial court’s findings are insufficient to determine whether the challenger has proved that the proponent of the peremptory strike purposefully discriminated against a prospective juror on account of the prospective juror’s race. Here, the trial court applied an incorrect legal standard and overruled defendant’s Batson challenge for failure to demonstrate a pattern of discrimination. In so doing, the court never decided whether defendant established that the prosecutor engaged in purposeful discrimination by striking two minority venire members. Accordingly, the Court ordered the case returned to the trial court with directions to conduct the three-part Batson analysis.

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