July 28, 2016

Colorado Court of Appeals: Proof of Mailing of License Revocation Notice Insufficient to Prove Knowledge in Criminal Proceeding

The Colorado Court of Appeals issued its opinion in People v. Boulden on Thursday, July 14, 2016.

Knowledge Element ofDriving Under Restraint.

Defendant’s driver’s license had been suspended for seven months when he was pulled over. He was convicted of driving under restraint.

On appeal, defendant contended that there was insufficient evidence to support his conviction. Knowledge is an essential element of the crime of driving under restraint. The prosecution admitted into evidence a certified copy of defendant’s driving history, which showed that notice of defendant’s driver’s license suspension had been mailed to him. Mere proof of mailing, however, is not sufficient in a criminal case to prove beyond a reasonable doubt a defendant’s knowledge of restraint of his driver’s privilege. Accordingly, no reasonable jury could have found that the prosecution proved the knowledge element of driving under restraint. Defendant’s conviction and sentence for driving under restraint were vacated, and the trial court was directed on remand to enter a judgment of acquittal.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: No Confrontation Clause Right Exists in Restitution Hearing

The Colorado Court of Appeals issued its opinion in People v. Vasseur on Thursday, July 14, 2016.

Colorado Organized Crime Control Act—Restitution—Sixth Amendment—Right of Confrontation—Hearsay—Foundation—Authentication.

Vasseur pleaded guilty to violating the Colorado Organized Crime Control Act for her participation in an Internet scam through which money was stolen from 374 victims. She was sentenced and the district court imposed $1,010,467.55 in restitution, based on a spreadsheet summarizing the criminal acts and the testimony of the primary investigator on the case.

Vasseur appealed the restitution order, contending that the district court erred when it considered the summary spreadsheet in imposing restitution because (1) it violated her Sixth Amendment right of confrontation, and (2) the spreadsheet contained inadmissible hearsay, lacked a proper foundation, and had not been properly authenticated. The right of confrontation and the Colorado Rules of Evidence do not apply to sentencing proceedings, including restitution hearings. Therefore, the district court did not abuse its discretion when it relied on the spreadsheet in determining the amount of restitution.

The order was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Jury Properly Instructed on Elements of Theft

The Colorado Court of Appeals issued its opinion in People v. Stellabotte on Thursday, July 14, 2016.

John Arthur Stellabotte is the owner of J&J Towing. After several incidents where J&J towed cars without authorization and charged high fees for return of the vehicle, Stellabotte was charged with six counts of aggravated motor vehicle theft, four counts of theft, and five habitual criminal counts. He was convicted of one count of aggravated motor vehicle theft, two class 4 felony counts of theft, one class 2 misdemeanor count of theft. He was sentenced to 24 years on all felony theft counts and one year on the misdemeanor count, to run concurrently.

On appeal, Stellabotte raised two contentions related to jury instructions, argued that his sentence should be halved because of new legislation reducing the severity of the offenses, and argued the 24-year sentences were grossly disproportionate to the severity of the offenses. The court of appeals analyzed the jury instructions and found no error; the instructions correctly stated the law despite formatting differences. The court also disagreed with Stellabotte that the trial court erred in using the dictionary definition of “authorization.” The court of appeals found no abuse of discretion in the trial court’s definition. However, the court of appeals agreed with Stellabotte that he should receive the benefit of the legislative changes. Because the General Assembly reduced the theft offenses to class 5 felonies, Stellabotte should have been sentenced under the legislative scheme in effect at the time of sentencing.

The court vacated Stellabotte’s sentences and remanded for the court to resentence him in the correct presumptive range. The court emphasized that this decision did not affect the aggravated motor vehicle theft or misdemeanor counts, only the class 4 felony theft convictions. Finally, the court of appeals rejected Stellabotte’s argument that the sentences were disproportionate to the severity of his crimes.

Judge Dailey concurred in part and dissented in part; he would have affirmed the sentences on the theft counts since the incidents occurred when the old sentencing scheme was in effect.

Colorado Court of Appeals: Mere Buyer-Seller Relationship Does Not Constitute Drug Distribution Conspiracy

The Colorado Court of Appeals issued its opinion in People v. Lucero on Thursday, July 14, 2016.

Rose Lucero’s coworker had prescriptions for several types of medications, including Tylenol with codeine. Ms. Lucero would occasionally request medications from the coworker, and would be given one pill for personal use for no compensation. The prosecution charged Ms. Lucero with conspiring with her coworker to distribute codeine and two counts of inducing her coworker to distribute the same substance. All of the charged offenses were class 4 felonies. At trial, the court granted Ms. Lucero’s motion for judgment of acquittal on the inducement counts but not the conspiracy count. The jury convicted Ms. Lucero of conspiracy and she was sentenced to one year of probation.

Ms. Lucero appealed her conviction, arguing that the prosecution produced insufficient evidence to prove that she conspired with her coworker. Ms. Lucero relied on the principle that evidence of a buyer-seller relationship, without more, does not constitute a conspiracy to distribute drugs. The court of appeals agreed with Ms. Lucero. The court of appeals held that the Colorado conspiracy statute exists to punish conspirators who have agreed on a common illicit purpose. The court held that such a conspiracy was not present in Ms. Lucero’s case, where she asked for painkillers for personal use and did not distribute them further. The court also held that by finding a conspiracy, the lower court contravened the General Assembly’s intent to punish conspiracy more heavily than simple possession.

The court of appeals vacated Ms. Lucero’s conviction and remanded for entry of judgment of acquittal.

Several JDFs in Sealing Records Category Amended

The Colorado State Judicial Branch amended several JDF forms in July, most of which relate to sealing records. Additionally, the forms related to appeals from dependency and neglect orders were amended and some were deleted. The amended JDFs are available here in PDF format and are available on the State Judicial website as Word documents or PDFs.

  • JDF 301 – Instructions to File an Expungement Juvenile “JD” Case, Criminal “CR” Case, or Municipal Case – R7/16
  • JDF 303 – Notice of Hearing on Petition for Expungement – R7/16
  • JDF 313(a) – Petition to Seal Records Relating to Illegal Possession or Consumption of Ethyl Alcohol or Marijuana by an Underage Person (MIP) or Possession of Marijuana Paraphernalia (Offenses Committed Prior to July 1, 2014) – R7/16
  • JDF 313(b) – Petition to Seal Records Relating to Illegal Possession or Consumption of Ethyl Alcohol or Marijuana by an Underage Person (MIP) or Possession of Marijuana Paraphernalia (Offenses Committed On or After July 1, 2014) – R7/16
  • JDF 314(a) – Order Regarding the Sealing of Records Relating to Illegal Possession or Consumption of Ethyl Alcohol or Marijuana by an Underage Person (MIP) or Possession of Marijuana Paraphernalia (Offenses Committed Prior to July 1, 2014) – R7/16
  • JDF 314(b) – Order Regarding the Sealing of Records Relating to Illegal Possession or Consumption of Ethyl Alcohol or Marijuana by an Underage Person (MIP) or Possession of Marijuana Paraphernalia (Offenses Committed On or After July 1, 2014) – R7/16
  • JDF 319 – Form 1 – Sample Modified Case Management Order – R7/16
  • JDF 323(a) – Instructions to File a Petition to Seal Records Relating to Illegal Possession or Consumption of Ethyl Alcohol or Marijuana by an Underage Person (MIP) or Possession of Marijuana Paraphernalia (Offenses Committed Prior to July 1, 2014) – R7/16
  • JDF 323(b) – Instructions to File a Petition to Seal Records Relating to Illegal Possession or Consumption of Ethyl Alcohol or Marijuana by an Underage Person (MIP) or Possession of Marijuana Paraphernalia (Offenses Committed On or After July 1, 2014) – R7/16
  • JDF 324 – Petition for Expungement of Records for a Law Enforcement Contact Not Resulting in a Referral to Another Agency – R7/16
  • JDF 326 – Order of Expungement of Records for a Law Enforcement Contact Not Resulting in a Referral to Another Agency – R7/16
  • JDF 416 – Instructions to File a Petition to Seal Arrest and Crimina Records Other Than Convictions – R7/16
  • JDF 417 – Petition to Seal Arrest and Criminal Records Other Than Convictions – R7/16
  • JDF 418 – Order to Seal Arrest and Criminal Records – R7/16
  • JDF 419 – Order and Notice of Hearing (Sealing Records) – R7/16
  • JDF 545 – Notice of Appeal (Cross-Appeal) and Designation of Transcripts – R7/16
  • JDF 547 – Supplemental Designation of Transcripts – R7/16
  • JDF 611 – Instructions to File a Petition to Seal Criminal Conviction Records Involving Controlled Substances and Petty Offenses and Municipal Violations – R7/16
  • JDF 612 – Petition to Seal Criminal Conviction Records – R7/16
  • JDF 614 – Order and Notice of Hearing to Seal Criminal Conviction Records – R7/16
  • JDF 615 – Order to Seal Criminal Conviction Records – R7/16
  • JDF 617 – Certificate of Service (Sealing and Convictions Actions) – R7/16

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

Colorado Court of Appeals: Prison Inmate Not Barred from Asserting Castle Doctrine

The Colorado Court of Appeals issued its opinion in People v. Alaniz on Thursday, June 30, 2016.

Prison Cell—Prisoner—“Make-My-Day” Statute—Dwelling—Immunity.

Alaniz is an inmate in the Colorado Department of Corrections. The people filed the charges in this case after another inmate was found dead in a cell shared by Alaniz and another inmate. After the court held an evidentiary hearing, it dismissed the charges against defendant based on Colorado’s “make-my-day” statute, which provides that under certain circumstances an occupant of a dwelling who uses any degree of physical force, including deadly physical force, against an intruder will be immune from prosecution.

On appeal, the People contended that Alaniz was not entitled to immunity under section C.R.S. § 18-1-704.5 because a prison cell is not a dwelling for purposes of that statute. Alaniz’s prison cell meets the definition of a dwelling in C.R.S. § 18-1-901(3)(g) because it was used by persons for habitation. Further, the definition of dwelling in C.R.S. § 18-1-901(3)(g) applies to the immunity provisions of C.R.S. § 18-1-704.5.

The People next contended that the court erred in dismissing the charges because Alaniz failed to prove that he used physical force against the victim. Alaniz was merely required to establish that circumstances justifying the charged use of force were present, as set forth in C.R.S. §§ 18-1-704.5(2) and (3). Nothing in the language of that statute supports the People’s assertion that he was required to explain the entirety of his actions at the hearing in order to obtain immunity. Accordingly, the court did not err in granting Alaniz’s motion to dismiss the charges.

The order was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Expert Testimony Relating to Victim’s Veracity Erroneously Admitted

The Colorado Court of Appeals issued its opinion in People v. Relaford on Thursday, June 30, 2016.

Sexual Assault—Child—Testimony—Truthfulness—Bad Acts or Character Evidence—Colorado Sex Offender Lifetime Supervision Act.

A jury convicted Relaford of 27 offenses related to sexual assaults against two child victims, and the trial court sentenced him to an aggregate indeterminate term of 204 years to life under the Colorado Sex Offender Lifetime Supervision Act of 1998 (SOLSA), CRS §§ 18-1.3-1001 to -1012.

Relaford appealed the judgment and sentence. He argued that the therapist’s testimony regarding the circumstances in which a child might fabricate claims of sexual assault and her statement that she had never encountered sexual assault fabrications in any other circumstances constituted impermissible opinion testimony that the victims in this case were not lying.  The Court of Appeals agreed, and this evidence should not have been presented to the jury. However, because defense counsel failed to object to the testimony, the error was not obvious, and there was substantial evidence to prove Relaford’s guilt, it was not plain error to admit the therapist’s statements.

Relaford also argued that the trial court reversibly erred in admitting numerous sex toys and pornography found at his home. Although Relaford conceded that the admission of evidence regarding sex toys that the children identified was proper, he argued that the trial court erred in admitting evidence of the other sex toys and the pornography that the children didn’t identify because it was irrelevant and constituted impermissible bad acts or character evidence. Some of this evidence probably should not have been admitted, but any error in this respect was harmless, given the substantial evidence to prove Relaford’s guilt and the prosecutions argument to the jury not to consider this evidence as other bad acts.

Additionally, Relaford contended that SOLSA is unconstitutional. Relaford did not raise the constitutional challenges at trial, and the Court thus declined to review them. However, the Court stated that even if it were to exercise its discretion to review Relaford’s constitutional claims it would conclude that he is not entitled to relief; several divisions of the Court previously considered constitutional challenges to SOLSA and concluded it is constitutional.

The judgment and sentence were affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: District Court Within Statutory Authority to Sua Sponte Set Sentencing Hearing

The Colorado Court of Appeals issued its opinion in People v. Reyes on Thursday, June 30, 2016.

Revocation of Probation—Resentencing—Hearing—Separation of Powers—Sua Sponte—Equal Protection—Discretion.

Reyes was serving a sentence. A revocation of probation complaint was filed, Reyes entered into a plea agreement, and the district court resentenced him to four years in community corrections. Reyes was subsequently terminated from the community corrections program for violating its policies. The court held a resentencing hearing sua sponte and resentenced Reyes to five years in the custody of the Department of Corrections.

On appeal, Reyes contended that the court lacked the statutory authority to set a resentencing hearing without a request from one of the parties. The district court can increase an offender’s sentence as long as it holds a resentencing hearing, and there is no statutory requirement that one of the parties must request that hearing.

Reyes also contended that the sua sponte hearing violated separation of powers because the prosecutor did not request the hearing. Discretion to request a resentencing hearing does not lie solely with the prosecutor, and the district court did not violate separation of powers principles.

Additionally, Reyes argued that the court violated his equal protection right by singling him out from other defendants and setting a resentencing hearing just because it disagreed with the prior judge’s four-year sentence. The Court of Appeals found that the court’s decision to set a resentencing hearing was rationally related to a legitimate governmental objective and did not violate Reyes’s right to equal protection.

Finally, Reyes asserted that even if the court did not violate his equal protection right, it abused its discretion by setting the resentencing hearing because its decision was manifestly arbitrary and abrogated the previous judge’s sentence, which was the law of the case. Here, the court’s decision to set a hearing was rationally based on Reyes’ particular circumstances, and the court did not abuse its discretion.

The five-year sentence was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Note Written by Murder Victim was Testimonial Hearsay

The Colorado Court of Appeals issued its opinion in People v. McFee on Thursday, June 30, 2016.

L.E. was an in-house manager of a residential facility for people with HIV and AIDS. One night, a resident found her lying in a pool of blood in the hallway. By the time police arrived, L.E. was dead. A few months later, police arrested Jonathan McFee, L.E.’s ex-boyfriend, for the murder. At trial, numerous witnesses testified about hearing McFee threaten to kill L.E., and the prosecution introduced an audio recording of a statement muttered by McFee during a break in interviewing that sounded like “I did it. That bitch.” A handwritten note from L.E. was admitted into evidence, which expressed that McFee had threatened to kill her and it was only a matter of time until he succeeded. The jury convicted McFee of first degree murder, and he was sentenced to life in prison without the possibility of parole.

McFee appealed, arguing that testimony of L.E.’s mother, daughter, and cousin about McFee’s intention to kill L.E. were hearsay and were improperly admitted. McFee also argued that the handwritten note was testimonial hearsay that was improperly admitted. The district court determined that the statements of the mother, daughter, and cousin were admissible under CRE 807 (residual exception), and arguably under CRE 803(3) (state of mind exception). The court of appeals agreed with the district court that the statements were properly admitted under CRE 807. The court of appeals found that L.E.’s statements were trustworthy because they were made spontaneously to close family members, they were not self-serving, and L.E. had no motive to lie about McFee’s threats. Additionally, all of the witnesses testified that L.E. seemed afraid when describing the threats. Further, the statements tended to show that L.E.’s and McFee’s relationship was volatile and he had a motive to kill. The court found that the statements were properly admitted.

Next, McFee argued that L.E.’s note was testimonial hearsay and should have been excluded because it violated his Sixth Amendment Confrontation Clause rights. The court of appeals agreed, but found that any error in admitting the note was harmless beyond a reasonable doubt. The court of appeals found that the note was created out of court to substitute for testimony in the event of L.E.’s death and therefore was “testimonial.” And because L.E. was unavailable at trial and McFee had not had prior opportunity for cross-examination, admission of the note violated McFee’s Confrontation Clause rights. However, the court found that any error in admitting the note was harmless beyond a reasonable doubt. Several witnesses testified as to threats McFee had made to kill L.E., McFee’s DNA was on the murder weapon, he had a key to the facility where L.E. lived on his key ring at the time of his arrest, he failed to contact L.E.’s daughter after the murder despite his close relationship with her, and he may have said “I did it” on the audio recording. Given the plentiful evidence of McFee’s guilt, the court found that admission of the note was harmless beyond a reasonable doubt.

The court of appeals affirmed McFee’s conviction.

Colorado Supreme Court: Possibility of Innocent Explanation is Merely a Factor in Totality of Probable Cause Determination

The Colorado Supreme Court issued its opinion in People v. Zuniga on Monday, June 27, 2016.

Probable Cause to Search—Totality of the Circumstances—Marijuana Odor.

In this interlocutory appeal, the Supreme Court reversed the trial court and held  that the odor of marijuana is relevant to the totality of the circumstances test and can contribute to a probable cause determination. Even though possession of one ounce or less of marijuana is allowed under Colorado law, many marijuana-related activities remain unlawful, meaning the odor of marijuana can support an inference that a crime is ongoing. Under the facts of this case, the Court concluded that there was probable cause to search the vehicle for illegal drugs in light of the two occupants’ divergent stories about their time visiting Colorado, their “extreme” nervousness, the strong odor of raw marijuana coming from the vehicle, and a drug-sniffing dog’s alert.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Defendant Entitled to At Least a Hearing on Ineffective Assistance Claims

The Colorado Court of Appeals issued its opinion in People v. Hunt on Thursday, June 16, 2016.

Postconviction Relief—Ineffective Assistance of Counsel—Transferred Intent—Complicity.

Defendant was charged with first degree “after deliberation” murder, first degree “extreme indifference” murder, conspiracy to commit murder, possession of a weapon by a previous offender, and three crimes of violence (sentencing enhancement) counts. Under a plea agreement, defendant pleaded guilty to an added count of second degree murder and to one of the original crime of violence counts in exchange for (1) the dismissal of the remaining charges and (2) a stipulated sentence of between 30 and 40 years’ imprisonment.

Defendant later wrote two letters to the district court asking to withdraw his guilty plea. He asserted that he was not guilty of murder because he had not intended for the shooter to kill the victim and his attorney had erroneously advised him that he could, if tried, be found guilty and sentenced to life imprisonment under a complicity theory. Plea counsel then filed a motion to withdraw from the case based on an alleged conflict of interest and asked the court to allow defendant to withdraw his guilty plea. Following a hearing, the court found no conflict of interest and directed counsel to file a Crim. P. 32(d) motion to withdraw guilty plea on behalf of defendant. Counsel filed the motion three days later. The court did not address the motion and sentenced defendant to 40 years’ imprisonment.

Defendant subsequently filed two pro se Crim. P. 35(c) motions for postconviction relief based on ineffective assistance of plea counsel, again alleging that he had been incorrectly advised that he could be found guilty of murder as a complicitor simply because he was present when a person he had not intended to be killed was killed. The court appointed new counsel who expounded on defendant’s claims, and the court, without a hearing, denied the motions for postconviction relief.

On appeal, defendant argued that he was entitled to a hearing on his ineffective assistance of counsel assertions, and the Court of Appeals agreed. An ineffective assistance of counsel claim requires a defendant to establish that counsel’s performance fell below the level of reasonably competent assistance demanded of attorneys in criminal cases and that the deficient performance prejudiced the defense. A hearing is required unless the record establishes that the allegations, if proven true, would fail to establish either of these conditions. Here, defendant argued that he was not aware that the shooter intended to kill someone other than a person whom defendant wanted to kill. If true, these facts would not support a conviction for first or second degree murder under a complicitor theory, and failure to advise defendant of this could have constituted deficient performance on the part of plea counsel. Because there was no hearing to determine what plea counsel advised defendant and what the professional norms were, or whether defendant would have pleaded guilty anyway, the case was remanded for an evidentiary hearing on this issue. Remand is also necessary for an evidentiary hearing on defendant’s claim that plea counsel was ineffective for failing to advise him about appealing the ruling denying his Crim. P. 35(c) motion to withdraw the guilty plea.

The order was reversed and the case was remanded.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Defendant’s Failure to Communicate with Counsel Does Not Warrant Continuance

The Colorado Court of Appeals issued its opinion in People v. Faussett on Thursday, June 16, 2016.

Aggravated Motor Vehicle Theft in the First Degree—Motion for Continuance—Conflict of Interest—Co-Conspirator Statements.

Defendant’s conviction arose out of a theft of a scooter from a residential parking lot. Four days after the scooter was reported missing, police located a stolen pickup truck and ultimately arrested its driver. While in custody, the driver made several police-monitored phone calls to defendant and defendant’s girlfriend that included discussions about disposing of or selling the scooter. Defendant was arrested for the scooter’s theft and found guilty of aggravated motor vehicle theft in the first degree.

On appeal, defendant first argued it was error to deny his motion for a continuance. A week before trial, defendant’s counsel moved for a continuance because (1) the prosecutor had re-interviewed the girlfriend and counsel wanted to review a written report of the interview once it was completed, and (2) counsel had never met defendant outside of court to discuss the trial, and defendant had mentioned additional witnesses. The prosecutor responded that the new conversations with the girlfriend were consistent with what was in discovery. The court denied the motion. The Court of Appeals reviewed for abuse of discretion and found none: (1) there was no suggestion that the interview of the girlfriend contained anything different from what she had previously said, and (2) the lack of communication between counsel and defendant was the result of defendant’s actions, so no continuance should be granted. In addition, no offer of proof regarding the identity of the additional witnesses or what they might offer was made.

Defendant also argued that the court should have appointed “conflict-free counsel” to represent him. Because defendant never raised this issue with the district court nor expressed any dissatisfaction with counsel, there was no sua sponte requirement for the court to inquire as to this issue or provide him with different counsel.

Finally, defendant argued that it was error to admit evidence of four telephone calls made by the driver to him or the girlfriend. Prior to trial, the prosecutor filed a motion to allow admission of the calls under CRE 801(d)(2)(E) because they “were made by co-conspirators during the course and in furtherance of the conspiracy.” Defense counsel objected on the grounds that she wasn’t sure the prosecution could prove the existence of a conspiracy independent of the calls or that the calls were made in furtherance of the conspiracy. The prosecution argued that there was evidence that supported a conspiracy independent of the calls and the court agreed.

The Court examined each call to determine whether it was made in furtherance of the conspiracy. It found the first two calls were, but the last two, between the driver and the girlfriend, were not, and thus it was an abuse of discretion to admit them. However, because there was not a reasonable probability that their admission influenced the jury’s verdict, the error was harmless.

The judgment of conviction was affirmed.

Summary provided courtesy of The Colorado Lawyer.