September 23, 2014

Colorado Court of Appeals: Statutory Language Deprived Court of Appeals of Jurisdiction in Bond Revocation Case

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

Bond—Revocation—Petition for Review—Jurisdiction.

In this felony case, the trial court set bond for defendant. He posted the bond, and the jail released him from its custody. While he was free on bond, a second court found that there was probable cause to believe that he had committed another felony. Based on that finding, the trial court revoked his release on bond in this case, and it ordered that the jail hold him without bond until this case was resolved. Defendant filed a petition for review in this court.

The prosecution argued that the Court of Appeals did not have jurisdiction over defendant’s petition for review. Defendant filed his petition for review relying on CRS §16-4-204(1), which authorizes review of trial court orders issued under CRS §§16-4-104, -107, and -201. Here, the prosecution’s motion to revoke defendant’s bond relied on CRS §16-4-105(3), which is not mentioned in CRS §16-4-204(1). Because it is not mentioned, a defendant cannot seek appellate review of an order issued under CRS §16-4-105(3) by filing a petition for review under CRS §16-4-204(1). Therefore, the Court of Appeals did not have jurisdiction over defendant’s petition for review, and the appeal was dismissed. Defendant may, however, seek the Supreme Court’s discretionary review of the trial court’s order under CAR 21.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Colorado Court of Appeals: Plain Language of Sexual Abuse Statute Includes Abuse of Sexual Organs

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

Child Abuse—Sexual Assault on a Child—Equal Protection—Prosecutorial Misconduct—Merger—Assault—Lesser Included Offenses.

Defendant adopted the male victim when the victim was 13. Over the next couple of years, defendant punished the victim for not properly completing chores. Punishment included beating the victim with a belt, punching him with a fist, and striking him with a meat tenderizer.

Defendant asserted that his conviction for sexual assault on a child (SAOC) for stomping on the victim’s testicles violated his right to equal protection because the child abuse statute prohibits the same conduct and carries a lesser penalty. Here, the statutes do not violate equal protection on their face because they do not proscribe identical conduct. Notably, the SAOC charge requires “sexual contact” and the child abuse statute requires “serious bodily injury.” Further, because both statutes contain standards for a person of ordinary intelligence to determine permissible and prohibited conduct, neither statute is void for vagueness as applied to defendant’s conduct. Finally, although either assault could have been charged under the child abuse statute or the SAOC statute, the charging decision was a proper exercise of prosecutorial discretion.

Defendant also asserted that his convictions must be reversed because the prosecutor’s repeated statements of personal opinion, inflammatory remarks, and appeal to the jury to send a message to the community deprived him of his rights to a fair trial by a fair and impartial jury. The prosecutor referred to defendant’s actions as “systematic torture,” which was a proper description of the routine and severe beatings defendant inflicted on the victim over the course of several months. Additionally, it was not an abuse of discretion for the court to sustain defendant’s objection regarding the prosecutor’s comments that defendant liked child abuse and to instruct the jury to disregard the statement. Finally, any additional comments by the prosecutor were reasonable inferences based on the evidence introduced at trial. Therefore, any potential prejudice was cured by the trial court’s ruling and instruction to the jury to disregard the remark.

Defendant argued that his three convictions for second-degree assault must merge into three of his convictions for first-degree assault because they are lesser included offenses. The elements of first-degree assault and second-degree assault are almost identical; one difference is that proof that the defendant caused serious bodily injury is required for first-degree assault. Because the prosecution proved that defendant intended to cause, and did cause, serious bodily injury to the victim, the prosecution also proved that defendant intended to cause, and did cause, the lesser degree of bodily injury. The case was remanded to the trial court to amend the sentencing mittimus to merge the convictions on three counts of second-degree assault.

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

Colorado Supreme Court: Trial Court Erroneously Denied Party Its Counsel of Choice

The Colorado Supreme Court issued its opinion in In re People v. Hoskins on Monday, September 8, 2014.

Disqualification of Retained Counsel of Choice—Colo. RPC 1.9(a).

In this original CAR 21 proceeding, the Supreme Court reviewed the trial court’s order disqualifying petitioners’ retained counsel of choice under Colo. RPC 1.9(a). The trial court found that counsel previously represented another party in the same matter for which counsel now represents petitioners, and that the former client and petitioners have materially adverse interests. The Court held that, because the record before it was insufficient to support a finding that the interests of petitioners and the former client are materially adverse in this criminal proceeding, the trial court abused its discretion by disqualifying petitioners’ retained counsel of choice under Colo. RPC 1.9(a). Accordingly, the Court made the rule absolute, reversed the trial court’s order disqualifying petitioners’ counsel of choice, and remanded the case to the trial court for further proceedings.

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

Tenth Circuit: Judge’s Consideration of Deportability as Sentencing Factor Harmless Error

The Tenth Circuit Court of Appeals issued its opinion in United States v. Sanchez-Leon on Monday, August 25, 2014.

After a raid of his home by Drug Enforcement Agency officers that uncovered methamphetamine, guns, and approximately $20,000 in U.S. currency, Abel Sanchez-Leon was charged with various drug offenses. During the lunch break on the first day of trial, he accepted a plea agreement offered by the government in which he agreed to plead guilty to eight counts in exchange for a sentence of 17.5 years (210 months), greatly reduced from the Guidelines range of 295 to 353 months. At charge of plea hearing through an interpreter, Sanchez-Leon expressed his understanding of the contents of the plea agreement and that the judge may vary in sentence imposed from the sentence recommended by the prosecutor. The court concluded that Sanchez-Leon’s plea was “voluntarily and intelligently made” and that he understood the penalty to be imposed. After the charge of plea hearing, Sanchez-Leon complained that he received ineffective assistance of counsel because he was pressured into accepting the plea agreement and did not fully understand its contents. He also wrote a letter to the judge, in Spanish, to that effect, but the judge could not read the letter and did not have it translated.

Sanchez-Leon argued on appeal that the district court’s denial of his motion to withdraw his guilty plea was in error because the plea was not made knowingly or voluntarily. He also appealed his sentence as substantively and procedurally unreasonable, and contended that the district court committed error by relying on abrogated law. The Tenth Circuit addressed each claim in turn.

The Tenth Circuit rejected Sanchez-Leon’s argument that his plea was not made knowingly or voluntarily. Sanchez-Leon had been questioned in court through an interpreter regarding his awareness of the contents of the plea agreement and the potential consequences of the agreement, and he affirmed on the record that he understood the contents and consequences. The Tenth Circuit found no reason to discredit this testimony. As to the sentence, the Tenth Circuit agreed that the case law on which the sentencing judge had relied was no longer valid law at the time of sentencing, but found any error to be harmless because the judge had considered several factors in determining the sentence and the sentence was within the applicable Guidelines range.

The judgment and sentence of the district court were affirmed.

Model Criminal Jury Instructions Released by Colorado Supreme Court

On Wednesday, September 3, 2014, the Colorado Supreme Court announced the release of new Model Criminal Jury Instructions. The Colorado Supreme Court Model Criminal Jury Instructions Committee has been working to develop the new model instructions since its official creation in October 2011, and intends to keep the instructions up-to-date by issuing periodic supplements or new editions. Interim updates will be published on a new website called the “Reporter’s Online Update.”

The Model Criminal Jury Instructions are meant to be guidelines and are not mandatory. Individual cases may require additional instructions, or none of the model instructions may apply. A precise format for criminal jury instructions has never been mandated in Colorado, and the committee endeavored to accurately state the law in the instructions while using neutral language in order to maximize the instructions’ utility.

The Committee also created a helpful Desk Guide, which contains the Chief Justice’s order approving the model jury instructions, a hyperlinked list of chapters, and comments on the use of each chapter in the instructions.

For more information about the model criminal jury instructions, click here. To access the jury instructions via the Committee’s website, click here.

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

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

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

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

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

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

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

Colorado Court of Appeals: Defendant Not Required to Pay Restitution for Sexual Assault Nurse Exam

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

Restitution—Sexual Assault Nurse Examiner (SANE) Examination—Forensic Evidence—Cost of Prosecution.

Defendant offered the victim a ride in his car and then drove her behind a building, where he parked the car. He threatened her with a knife and forced her to perform oral sex on him. After the victim called the police, she was examined by a sexual assault nurse examiner. Defendant pleaded guilty, and the court granted the prosecution’s request for the $500 in restitution to be paid to the Aurora Police Department for the cost of the examination.

On appeal, defendant contended that the district court erred in awarding restitution to the Aurora Police Department for the cost of the examination. The Court of Appeals agreed. The examination was for the purpose of collecting forensic evidence, so the Aurora Police Department was not a “victim” under the applicable version of the restitution statute. Additionally, the examination was not an “extraordinary direct public investigative cost” under CRS §18-1.3-602(3)(b). Further, because the examination was conducted beforeformal legal charges were filed, the cost of the exam was not recoverable as a cost of prosecution. The order was reversed and the case was remanded with directions.

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

Colorado Court of Appeals: Defendant Not Entitled to Withdraw Guilty Plea to Correct Purportedly Illegal Sentence

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

Illegal Sentence—Plea Bargain—Moot.

Fritz admitted to sexually abusing his adopted daughter, J.F., more than 1,000 times over a three-year period. He pleaded guilty to aggravated incest, and the prosecution dropped the remaining charges. Fritz complied with the plea agreement until 2008, when he left Colorado without permission and travelled to the Philippines. The prosecution filed a complaint seeking to revoke his probation.

Fritz then filed a Crim.P. 35(a) motion to withdraw his guilty plea and a Crim.P. 35(c) motion to vacate an allegedly illegal sentence and conviction; both motions were denied by the court. Two months after Fritz filed a notice of appeal, he pleaded guilty to the probation violation. Both parties stipulated to a sentence of thirteen years in prison subject to discretionary parole. The trial court sentenced Fritz according to the new plea agreement.

On appeal, Fritz contended that he obtained an illegal sentence as part of his original plea bargain, thus entitling him to withdraw his guilty plea. However, Fritz was not materially induced to enter into a plea by the mandatory parole provision. If his original sentence was illegal, the only remedy is imposition of a new legal sentence. This appeal is moot because Fritz pleaded guilty to the probation violation and the trial court imposed a new legal sentence, thereby superseding the original sentence. Accordingly, the appeal was dismissed.

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

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

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

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

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

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

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

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

Tenth Circuit: Prosecutor’s Closing Remarks Did Not Clearly Use Co-Conspirators’ Guilty Pleas to Support Defendant’s Guilt

The Tenth Circuit Court of Appeals issued its opinion in United States v. Woods on Friday, August 22, 2014.

James Woods and several co-conspirators were indicted for conspiracy to distribute methamphetamine. The co-conspirators agreed to testify against Woods at the indictment in connection with their guilty pleas. Woods’ defense at trial was that he was not distributing meth. At trial, prosecutors introduced several phone calls between Woods and the co-conspirators allegedly talking about meth, although meth was never mentioned explicitly or in code. Defense argued they could have been talking about some other drug or something else. The co-conspirators also testified against Woods regarding the meth distribution scheme. Defense repeatedly pointed to their agreements to testify in exchange for reduced sentences. During closing argument, the prosecution argued that the co-conspirator witnesses would not have testified that they were involved in a meth distribution scheme had they not actually been distributing meth. Defense did not simultaneously object. Woods was indicted, and appealed.

On appeal, Woods argued that the prosecutor’s closing remarks impermissibly encouraged the jury to look at the co-conspirators’ guilty pleas and the fact of prosecution as substantive evidence of Woods’ guilt. Because he did not raise the issues in the district court, the Tenth Circuit conducted a plain error review and found none. The prosecutor’s remarks could be interpreted multiple ways, including to bolster the argument that the co-conspirators were truthful since their credibility had been attacked by defense counsel. Because there was no “clear and obvious” error, the Tenth Circuit upheld the indictment.