December 22, 2014

Colorado Court of Appeals: DNA Test Unlikely to Prove Defendant’s Factual Innocence

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DNA Evidence—Testing—Due Process—Destruction of Evidence.

This appeal stemmed from defendant’s 1988 conviction for kidnapping and sexual assault. On direct appeal, it was determined that the trial court had not abused its discretion in denying defendant’s request for DNA testing because “defendant was seen committing the offense by a police officer and was identified by the victim,” making “the utility of DNA testing . . . speculative at best.” Defendant thereafter filed a Crim.P. 35(c) motion requesting post-conviction testing of DNA. The prosecution conducted DNA testing on the victim’s underwear and did not find any traces of semen and saliva. Defendant then requested his own DNA testing, but the evidence had been destroyed.

On appeal, defendant requested a remedy for the negligent destruction of the underwear. However, defendant was not entitled to testing of the underwear under CRS § 18-1-413 in the first instance because he failed to establish by a preponderance of the evidence that favorable results of DNA testing would demonstrate his actual innocence. Therefore, the trial court did not err and defendant was not entitled to relief under CRS § 18-1-414(2)(b). The trial court’s determination that the destruction of the evidence did not violate defendant’s due process rights was affirmed.

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

JDF Forms Amended in Several Categories in November and December

The Colorado State Judicial Branch revised several forms and instructions in November and December 2014. Many categories were affected, including toll ticket appeals, juvenile delinquency, domestic relations, probate, forcible entry and detainer, and sealing cases. Amended forms are available here in PDF format, and are available for download as Word documents on State Judicial’s forms page.

APPEALS

  • JDF 234 – “Notice of Appeal and Designation of Record – E-470 Case” (revised 11/14)
  • JDF 235 – “Notice of Record Certified to County Court – E-470 Case” (revised 11/14)

CRIMINAL

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

DOMESTIC

  • JDF 1101 – “Petition for: Dissolution of Marriage/Legal Separation” (revised 12/14)
  • JDF 1201 – “Affidavit for Decree Without Appearance of the Parties (Marriage)” (revised 12/14)
  • JDF 1601 – “Petition for Declaration of Invalidity of Marriage” (revised 12/14)

EVICTIONS

  • JDF 100 – “Instructions for Forcible Entry and Detainer (FED)/Eviction” (revised 11/14)
  • JDF 140 – “Instructions for Mobile Home FED” (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 730 – “Decree of Final Discharge” (revised 12/14)
  • JDF 810 – “Court Visitor’s Report” (revised 12/14)
  • JDF 824 – “Petition for Appointment of Guardian for Minor” (revised 12/14)
  • JDF 834 – “Guardian’s Report – Minor” (revised 12/14)
  • JDF 841 – “Petition for Appointment of Guardian for Adult” (revised 12/14)
  • JDF 850 – “Guardian’s Report – Adult” (revised 12/14)
  • JDF 861 – “Petition for Appointment of Conservator for Minor” (revised 12/14)
  • JDF 876 – “Petition for Appointment of Conservator for Adult” (revised 12/14)
  • JDF 878 – “Order Appointing Conservator for Adult” (revised 12/14)
  • JDF 885 – “Conservator’s Report” (revised 12/14)

SEAL MY CASE

  • JDF 301 – “Instructions to File an Expungement Juvenile “JV” Case, Criminal “CR” Case, or Municipal Case” (revised 12/14)

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

Tenth Circuit: Concurrent Sentences Are Not Coterminous When They Begin at Different Times

The Tenth Circuit Court of Appeals issued its opinion in Brown v. Parker on Wednesday, November 12, 2014.

Mr. Brown was imprisoned for two sentences, one from Tulsa County and one from Muskogee County. Both sentences were two years, and the second one (Muskogee County) was to run concurrently with the first (Tulsa County), although they did not begin at the same time. Mr. Brown believed the sentences should end at the same time, so when he completed the first sentence, he expected to be released from prison, but he had not yet completed his Muskogee County sentence. Upon his eventual release, he sued under 42 U.S.C. § 1983, alleging that authorities had refused to release him when his Muskogee County sentence ended. In support, Mr. Brown relied on an order from the Muskogee County judge, which stated that the Muskogee County sentence was to end when the Tulsa County sentence ended. The district court granted summary judgment to defendants and Mr. Brown appealed.

The Tenth Circuit, though sympathetic to Mr. Brown’s plight, found the district court had ruled correctly. Mr. Brown’s sentences were concurrent, but not coterminous, and coterminous sentences are illegal under Oklahoma law. The magistrate judge in Muskogee County had said that the Muskogee sentence would end when the Tulsa sentence ended, but there was no basis in Oklahoma law for him to make this statement, so it had no legal effect and was a nullity. The district court had two options with regard to the order: disregard it or attempt to make it conform to Oklahoma law. It chose the latter. The district court found that the Muskogee sentence was to end in January 2013, two years after the beginning of the Tulsa sentence. Since Mr. Brown was released far before this date, the district court found no error and summary judgment was appropriate.

Tenth Circuit: Constitutional Claims Impermissible in Sentence Reduction Hearing

The Tenth Circuit Court of Appeals issued its opinion in United States v. Gay on Wednesday, November 12, 2014.

In 1998, Alondo Gay was indicted on eight counts, including having distributed 245.3 grams of cocaine base. He pled guilty to that charge in exchange for dismissal of the remaining charges. The probation office prepared a presentence report using the 1998 sentencing guidelines, which held Mr. Gay accountable for 9,636.88 grams of cocaine base. He qualified for a base offense level of 38. The final PSR added four additional levels for a total offense level of 42. Initially, Mr. Gay objected to several factual findings in the PSR, but withdrew his factual objections at the sentencing hearing for a 3-level reduction. His guidelines sentencing range was 262 to 327 months’ imprisonment, and he was sentenced to 262 months.

In 2007, the Sentencing Commission adopted Amendment 706, which reduced the sentencing disparity between cocaine base and cocaine powder from a 100:1 ratio to a 33:1 ratio. In 2008, Amendment 706 was made retroactively applicable. Then, in August 2010, Congress enacted the Fair Sentencing Act, which further reduced the sentencing disparity ratio to 18:1. The Sentencing Commission adopted another retroactive amendment in response to the Fair Sentencing Act, which reduced the offense levels for offenses involving between 2.8 and 8.4 kg of cocaine base from 38 to 36.

In light of the sentencing changes, Mr. Gay filed a motion under § 3582(c)(2) to reduce his sentence. The district court denied his motion, finding him ineligible for relief because his sentence was based on a greater quantity of cocaine base than was affected by the amendments. Mr. Gay appealed, contending the application of his sentence under the 100:1 ratio violated his Fifth Amendment Due Process rights, and that the length of his sentence violated the Eighth Amendment’s prohibition against cruel and unusual punishment.

The Tenth Circuit characterized his appeal as an impermissible attempt to collaterally attack his sentence. The only relief allowed in a § 3582(c)(2) proceeding is sentence modification, not argument of constitutional claims. Mr. Gay should have raised his constitutional arguments in direct appeal. The Tenth Circuit conducted a plain error review and found none. Mr. Gay’s sentence was affirmed.

Colorado Supreme Court: Burden of Proof Does Not Shift Under Res Ipsa Loquitur

The Colorado Supreme Court issued its opinion in Chapman, M.D. v. Harner on Monday, December 8, 2014.

Allocation of the Burden of Proof Under Res Ipsa Loquitur.

In this case, the Supreme Court clarified the proper allocation of the burden of proof under the doctrine of res ipsa loquitur. Specifically, the Court resolved the tension between its fifty-six-year-old precedent in Weiss v. Axler, 137 Colo. 544, 559, 328 P.2d 88, 96-97 (1958), which held that the burden of proof shifts to the defendant once a plaintiff makes a prima facie showing of res ipsa loquitur, and the more recent adoption of CRE 301, which indicates that rebuttable presumptions such as res ipsa loquitur shift onto the defendant only the burden of production and not the burden of proof. After determining that this issue has remained unsettled since the adoption of CRE 301, the Court held that the burden of proof does not shift to the defendant under res ipsa loquitur. Accordingly, the Court reversed the court of appeals’ judgment.

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

Colorado Court of Appeals: Speedy Trial Act Implicated when Charges Filed, Dropped, Then Filed Again

The Colorado Court of Appeals issued its opinion in People v. Nelson on Thursday, December 4, 2014.

Rental Vehicle—Speedy Trial—Jury Instructions—Affirmative Defense—Consent—Mistake of Fact.

Defendant rented a vehicle from Mesa Motors, Inc. (Mesa). After using the vehicle for about two months, defendant told Mesa’s owner he wanted to buy the vehicle and agreed to pay any accrued rental charges up to the date of purchase; however, defendant did not pay the purchase price or the unpaid rental charges. Mesa’s owner went to the address defendant had provided him and discovered that defendant no longer lived there. He reported the vehicle stolen and left a message with defendant to that effect, at which point defendant surrendered the vehicle. A jury found defendant guilty of aggravated motor vehicle theft.

On appeal, defendant contended that his statutory right to a speedy trial was violated. The prosecutor dismissed the original charges against defendant and later refiled them. The district court found, with record support, that the prosecutor had not dismissed the charges and refiled them to avoid the statutory six-month deadline. Because defendant’s trial began within six months after he pleaded not guilty to the refiled charges, there was no violation of his statutory right to a speedy trial.

Defendant also contended that his right to a speedy trial under both the U.S. and Colorado Constitutions was violated. The period during which defendant originally faced the charges must be included in considering his constitutional speedy trial claim. Adding the period from the initial filing of the charges to the dismissal of the charges (229 days) to the period from the refiling of the charges to the beginning of trial (189 days) equals more than one year, a presumptively prejudicial length of time. However, because defendant failed to establish any significant prejudice by the delay, he was not denied his constitutional right to a speedy trial.

Defendant further argued that the court erred in denying his two jury instructions on purported affirmative defenses: consent and mistake of fact. Though consent and mistake of fact can be affirmative defenses (depending on the elements of the charged crime), they were not affirmative defenses in this case because defendant denied committing the crime. Therefore, although defendant was free to argue that the evidence of consent and mistake of fact showed that he had not deceived the victim, he was not entitled to separate instructions on those defenses characterizing them as affirmative defenses, which the prosecution was required to disprove beyond a reasonable doubt. The judgment was affirmed.

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

Colorado Court of Appeals: SOLSA Encompasses Single Subject of Sex Offender Supervision and is Constitutional

The Colorado Court of Appeals issued its opinion in People v. Montgomery on Thursday, December 4, 2014.

Colorado Sex Offender Lifetime Supervision Act of 1998—Colorado Constitution—Subject Matter—Clear Express Requirement.

Montgomery pleaded guilty in three related criminal cases involving the sexual assault of three children. He was convicted of one count of sexual assault on a child and two counts of sexual assault on a child in a position of trust–pattern of abuse. The trial court sentenced Montgomery under the Colorado Sex Offender Lifetime Supervision Act of 1998 (SOLSA) to two consecutive sixteen-years-to-life terms and one consecutive six-years-to-life term, denying Montgomery’s motion for post-conviction relief filed under Crim.P. 35(a).

On appeal, Montgomery argued that his sentence was illegal because SOLSA violates Article V, § 21 of the Colorado Constitution. SOLSA’s single-subject matter is the lifetime treatment and supervision of persons who commit sex offenses. Its goal is to rehabilitate sex offenders while mitigating the dangers they pose to the public when released from incarceration. The matters of sentencing, parole, and probation are properly connected because they are all means of accomplishing SOLSA’s single objective of lifetime supervision of convicted sex offenders. Therefore, SOLSA contains only one subject and, for that reason, does not violate the single-subject requirement. SOLSA is not unconstitutional merely because the terms “sentencing,” “parole,” and “probation” are not mentioned in its title. Accordingly, SOLSA does not violate the clear expression requirement of the Colorado Constitution, and the judgment was affirmed.

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

Colorado Court of Appeals: Jurors Appropriately Allowed Unfettered Access to Video of Defendant’s Voluntary and Admissible Confession During Deliberations

The Colorado Court of Appeals issued its opinion in People v. Gingles on Thursday, December 4, 2014.

Jury—Evidence—Videotaped Admission—Deliberations—Jury Instructions—Invited Error—Vehicular Eluding—Double Jeopardy—Separate Volitional Acts.

Defendant fled from police in a stolen vehicle. After that vehicle broke down, he pushed a driver out of another vehicle and fled in that vehicle. A jury found defendant guilty, as charged, of second-degree kidnapping, one count of aggravated motor vehicle theft, and two counts of vehicular eluding. The jury also found him guilty of robbery and third-degree assault, as lesser-included offenses of his other charges.

On appeal, defendant contended that the trial court erred in permitting the jury to have unfettered access to the video recording of his confession. Jurors are allowed unrestricted access during deliberations to a defendant’s voluntary and otherwise admissible confession. Therefore, the court did not err.

Defendant also contended that the trial court erroneously instructed the jury that he could be convicted of robbery based on the use of force, threats, or intimidation “against any person” rather than against the innocent driver specifically. Because defense counsel proposed the instruction, the invited error doctrine bars defendant’s challenge to it on appeal. The case was remanded with instructions to correct the mittimus to reflect that defendant was convicted of robbery, not aggravated robbery.

Defendant further contented that his two convictions for vehicular eluding were imposed in violation of constitutional double jeopardy guarantees. Defendant committed two different volitional acts directed at two different officers at different times. Therefore, the evidence was sufficient to support two separate convictions of vehicular eluding. The judgments were affirmed and the case was remanded with directions.

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

Colorado Court of Appeals: Evidence of Other Bad Acts Evaluated on Case-by-Case Basis

The Colorado Court of Appeals issued its opinion in People v. Whitlock on Thursday, December 4, 2014.

Sexual Assault on a Child—Prior Bad Acts—Sentencing—Probation—Sex Offender Treatment—Fifth Amendment.

According to the victim, when she was 11 years old, defendant (her stepfather at the time) went into her room one night while she was sleeping, lay down beside her, removed her underwear, and touched her vagina. When she woke up and told him to stop, defendant left the room. Several years later, the victim told her new stepfather and her mother about the incident, who then contacted the police. The jury later convicted defendant of sexual assault on a child and sexual assault on a child by one in a position of trust (victim under 15 years old).

On appeal, defendant contended that the trial court reversibly erred when it admitted evidence of his prior bad acts. The victim’s mother testified that during the last year of her relationship with defendant, she would wake up with defendant having sex with her and defendant would refuse to stop when she objected. The victim’s sister testified that defendant watched her undress one time and, on a separate occasion when defendant had picked her up from work, he stopped the car and showed her his intimate parts. The evidence regarding the victim’s mother was probative of defendant’s method and intent of seeking sexual gratification from individuals who were isolated and sleeping. Conversely, the evidence involving the victim’s sister was not probative of any relevant evidence, so the trial court erred in admitting it. However, such error was harmless given defendant’s admissions regarding his assault on the victim.

Defendant also contended that the trial court erroneously sentenced him to imprisonment rather than probation. Both the probation department and a psychosexual evaluator recommended that defendant be sentenced to probation with sex offender treatment. However, defendant stated his intent to invoke his Fifth Amendment right against self-incrimination during sex offender treatment sessions. Because the court determined that defendant could not successfully complete treatment without admitting any wrongdoing, it did not abuse its discretion in sentencing him to imprisonment. The judgments and sentences were affirmed.

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

 

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.