February 4, 2012

You are here: Home / Archives for criminal law

HB 12-1036: Clarifying the Investigative Files Exemption to the Colorado Open Records Act

February 2, 2012 By Leave a Comment

On January 11, 2012, Rep. James Kerr introduced HB 12-1036 – Concerning Clarification of the Exemption from the”Colorado Open Records Act” for Investigative Files. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill clarifies that the current exemption from the “Colorado Open Records Act” for investigative files applies to those files compiled for any civil, administrative, or criminal law enforcement purpose.

Summaries of other featured bills can be found here.

Filed Under: Legislation Tagged With: , , , , , ,

Tenth Circuit: Stolen Valor Act Is Constitutional; Restricts Only Knowingly False Statements of Fact and Does Not Overreach to Chill Protected Speech

January 30, 2012 By Leave a Comment

The Tenth Circuit Court of Appeals published its opinion in United States v. Strandlof on Friday, January 27, 2012.

The Tenth Circuit reversed the district court’s decision. Respondent, despite never having served in the armed forces, founded the Colorado Veterans Alliance and frequently told veterans that he graduated from the United States Naval Academy, was a former U.S. Marine Corps Captain, and had been wounded in combat in Iraq. He also bragged of receiving a Purple Heart, which is given to soldiers wounded or killed in action, and he boasted that he had been awarded the Silver Star for gallantry in battle. After discovering the ruse, the government charged Respondent with making false claims about receipt of military decorations or medals in violation of the Stolen Valor Act. Reasoning that false statements are generally protected by the First Amendment, the district court declared the Stolen Valor Act unconstitutional and dismissed the charges against Respondent.

The Court disagreed with the district court’s analysis. “The sole question presented is whether the Stolen Valor Act, a content-based restriction on speech, is facially constitutional.” The Court found that it is and reversed the district court’s decision. “As the Supreme Court has repeatedly asserted, the Constitution does not foreclose laws criminalizing knowing falsehoods, so long as the laws allow ‘breathing space’ for core protected speech—as the Supreme Court calls it, ‘speech that matters.’ . . . [U]nder this legal framework, the Stolen Valor Act survives scrutiny because (1) it restricts only knowingly false statements of fact, and (2) specific characteristics of the statute, including its mens rea requirement, ensure it does not overreach so as to chill protected speech.”

Filed Under: Case Law Tagged With: , , ,

SB 12-020: Granting Immunity for Certain Crimes when Person Reports Emergency Overdose in Good Faith

January 30, 2012 By Leave a Comment

On January 11, 2012, Sen. Aguilar and Rep. Summers introduced SB 12-020 – Concerning immunity from certain criminal offenses when a person reports in good faith an emergency drug or alcohol overdose event. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

A person and one or two other persons acting in concert with the person are immune from arrest and criminal prosecution for any of the following offenses if the offense arises from the same criminal episode or course of events from which an emergency drug or alcohol overdose event arose; the person reports the event in good faith to a law enforcement agency or to the 911 system; the person and, if applicable, one or two other persons remain at the scene of the event until a law enforcement officer or an emergency medical responder arrives; and the person and, if applicable, one or two other persons identify themselves to, and cooperate with, the law enforcement officer or emergency medical responder:

  • Unlawful possession of a controlled substance;
  • Unlawful use of a controlled substance;
  • Unlawful distribution, manufacturing, dispensing, or sale of a controlled substance if the offense is based upon the transfer of a controlled substance from the person to another person for no remuneration;
  • Unlawful possession of 12 ounces or less of marijuana or 3 ounces or less of marijuana concentrate;
  • Open and public display, consumption, or use of less than 2 ounces of marijuana;
  • Transferring or dispensing 2 ounces or less of marijuana from one person to another for no consideration;
  • Unlawful use or possession of synthetic cannabinoids or salvia divinorum;
  • Unlawful distribution, manufacturing, dispensing, sale, or cultivation of synthetic cannabinoids or salvia divinorum if the offense is based upon the transfer of synthetic cannabinoids or salvia divinorum from the person to another person for no consideration;
  • Possession of drug paraphernalia; and
  • Illegal possession or consumption of ethyl alcohol by an underage person.

Assigned to the Judiciary Committee.

Summaries of other featured bills can be found here.

Filed Under: Legislation Tagged With: , , ,

Tenth Circuit: Government Need Not Prove Defendant Knew He Was a Felon; Defendant Knew Possessing Firearm Violated His Probation

January 24, 2012 By Leave a Comment

The Tenth Circuit Court of Appeals published its opinion in United States v. Games-Perez on Monday, January 23, 2012.

The Tenth Circuit affirmed the district court’s sentence. Petitioner was indicted for possession of a firearm by a felon. Claiming that he was unaware that he was actually a felon, Petitioner “filed a motion in limine, seeking a pre-trial ruling that the government was required to prove that he actually knew he was a felon.” That motion was denied, but the Court granted his motion to enter a conditional guilty plea. The district court sentenced him to fifty-seven months’ imprisonment, followed by three years of supervised release, and Petitioner appealed.

“The question presented in this case . . . has been whether the ‘knowingly’ requirement should extend to the element of the statute regarding felony status, so that a § 922(g)(1) conviction will not stand if the defendant does not ‘know’ he is a felon. Put another way, the question is whether the government must prove that the defendant had the requisite scienter or mens rea regarding his felony status.” The Tenth Circuit “has expressly held that ‘the only knowledge required for a § 922(g) conviction is knowledge that the instrument possessed is a firearm.’”

The Court concluded that Petitioner “was told repeatedly, both orally and in writing, that possession of a firearm was a clear violation of his probation. So, regardless of whatever else [Petitioner] may have thought, it was pellucidly clear to him that he could not violate his probation, by possessing a firearm, and escape the consequences of his felony conviction. . . .  [Petitioner] knew, as a matter of fact, that he was losing the benefit of his bargain when he picked up a gun while on probation. He just did not know the legal consequences of it . . . . That is simply ignorance of the law, which . . . has never excused disobeyance of a law.”

Filed Under: Case Law Tagged With: , , ,

Tenth Circuit: Extortion Did Not Violate Equal Protection; No Evidence Demand Was Enforced with Purpose of Discriminating Against Those Who Failed to Meet It

January 24, 2012 By Leave a Comment

The Tenth Circuit Court of Appeals published its opinion in SECSYS, LLC v. Vigil on Monday, January 23, 2012.

The Tenth Circuit affirmed the district court’s decision. Respondent served as New Mexico’s state treasurer and wanted to make sure a political rival didn’t challenge him in the next election. He ultimately planned to find work for the rival’s wife “as a sort of payoff.” When bids were solicited for a state contract he insisted that any interested contractor hire his rival’s wife on any terms she wished. Petitioner agreed to the plan in principle but ultimately found it could not close the deal with the wife. When negotiations broke down, Respondent “allegedly went with another contractor who agreed to pay [the wife] what she wanted. For his role in this scheme, Respondent eventually found himself indicted, then convicted, and then serving prison time.”

Petitioner’s theory of recovery is novel: it seeks damages from Respondent “not for violating state contracting law, not for violating state common law, not for violating any federal statute.” Instead, Petitioner says Respondent must pay because he violated the company’s Fourteenth Amendment right to equal protection of the laws. According to Petitioner, Respondent unlawfully discriminated against the company when they refused to give the state contract to bidders who refused to pay the wife’s full demand. However, the Court found that “there’s no evidence [Respondent] enforced this extortionate demand with the purpose of discriminating against those who failed to meet it, because of an adverse impact on this class of persons. . . . [And], [a]nalyzing the case through equal protection’s so-called ‘class of one’ doctrinal prism changes nothing.” Therefore, the district court’s grant of summary judgment to Respondent was affirmed.t

Filed Under: Case Law Tagged With: , ,

State Judicial Continues Amending Forms to Comply with New Civil Procedure Rule Changes (Part 2)

January 24, 2012 By Leave a Comment

Colorado State Judicial is continuing to issue forms that have been amended to comply with fee changes and the new civil procedure rules adopted as part of Rule Change 2011(18), effective as of January 1, 2012. The changes are being made to time calculation requirements in the forms, which now must reflect the “rule of 7″/multiples of a week.

State Judicial is reviewing all JDF forms and instructions, however it is always the Parties’ responsibility to ensure compliance with the Supreme Court rules. It is therefore important to review the time calculation rule changes prior to filing, as many of the forms have not been reviewed and changed yet.

Below is a list of the latest forms to be amended. Earlier amendments can be found here (Part 1). Most forms are available in Adobe Acrobat (PDF) and Microsoft Word formats; Word templates are forthcoming. Download the new forms from State Judicial’s individual forms pages, or below.

Adoption

  • JDF 495 – “Instructions for Second Parent Adoption” (revised 1/12)
  • JDF 497 – “Instructions for Validation of Foreign Adoption” (revised 1/12)
  • JDF 498 – “Instructions for Kinship Adoption” (revised 1/12)
  • JDF 499 – “Instructions for Custodial Adoption” (revised 1/12)
  • JDF 500 – “Instructions for Stepparent Adoption” (revised 1/12)
  • JDF 506 – “Notice of Adoption Proceeding and Summons to Respond”

Appeals

  • JDF 126 – “Instructions to File a Small Claims or County Civil Appeal” (revised 1/12)

County Civil / District Civil

  • JDF 86 – “Instructions for Issuing a Subpoena in Support of an Action Outside the State of Colorado” (revised 1/12)
  • JDF 105 – “Pattern Interrogatories Under CRCP 369(g) – Individual” (revised 1/12)
  • JDF 131 – “Instructions for an Agistor’s Lien” (revised 1/12)
  • JDF 416 – “Instructions to File a Petition to Seal Arrest & Criminal Records” (revised 1/12)
  • JDF 603 – “Instructions to Complete District Court Civil Case Cover Sheet” (revised 1/12)
  • JDF 611 – “Instructions to Seal Criminal Conviction Records” (revised 1/12)
  • JDF 620 – “Instructions for Filing a Response to a Rule 120 Notice (Foreclosure Sale)” (revised 1/12)

Criminal

  • JDF 416 – “Instructions to File a Petition to Seal Arrest & Criminal Records” (revised 1/12)
  • JDF 460I – “Instructions to Discontinue Sex Offender Registration” (revised 1/12)

Domestic/Family

  • Form 35.4 – “Pattern Interrogatories Domestic Relations” (revised 1/12)
  • Form 35.5 – “Pattern Requests for Production of Documents” (revised 1/12)
  • JDF 1103I – “Instructions for Filing a Response” (revised 1/12)
  • JDF 1415 – “Verified Motion/Stipulation to Modify Decision-Making Responsibility” (revised 1/12)
  • JDF 1418 – “Verified Motion Concerning Parenting Time Disputes” (revised 1/12)
  • JDF 1801 – “Instructions for Completing an Income Assignment Based on Child Support Orders” (revised 1/12)

Juvenile

  • JDF 476 – “Instructions to Discontinue Sex Offender Registration Juvenile” (revised 1/12)

Paternity

  • JDF 1500 – “Instructions to Establish Paternity” (revised 1/12)
  • JDF 1502 – “Summons in Paternity” (revised 1/12)
  • JDF 1513 – “Instructions to Disclaim Paternity” (revised 1/12)
  • JDF 1515 – “Summons to Disclaim Paternity” (revised 1/12)

Probate

  • JDF 782 – “Instructions to File Petition to Accept Adult Guardianship and/or Conservatorship in Colorado from Sending State” (revised 1/12)
  • JDF 786 – “Instructions to File a Petition to Transfer Adult Guardianship and/or Conservatorship from Colorado to Receiving State” (revised 1/12)
  • JDF 820 – “Instructions for Appointment of Guardian for Minor by Will or Other Signed Writing” (revised 1/12)
  • JDF 823 – “Instructions for Appointment of Guardian – Minor” (revised 1/12)
  • JDF 840 – “Instructions for Appointment of a Guardian – Adult” (revised 1/12)
  • JDF 860 – “Instructions for Appointment of Conservator – Minor” (revised 1/12)
Filed Under: Resources Tagged With: , , , , , , , , , , , , ,

Colorado Court of Appeals: Plea Counsel Properly Advised Defendant; No Facts to Constitute Ineffective Assistance of Counsel

January 24, 2012 By Leave a Comment

The Colorado Court of Appeals issued its opinion in People v. Stovall on January 19, 2012.

Crim.P. 35(a)—Plea—Ineffective Assistance of Counsel—Timeliness—Sentence.

Defendant appealed the trial court’s orders denying his Crim.P. 35(a) and (c) motions. The orders were affirmed.

Defendant shot and killed a neighbor’s dog on November 28, 2001. After a third party reported that gunshots had been fired, a deputy sheriff placed defendant under arrest for unlawful discharge of a firearm and cruelty to animals, both misdemeanors. Defendant’s twin brother then arrived and shot the arresting deputy in the head, killing him. Defendant and his brother stole a pickup truck from a neighbor at gunpoint, and defendant shot another officer in the lower back, permanently paralyzing him. During the next twenty-four hours, defendant and his brother engaged in a series of high-speed chases with law enforcement officers from various jurisdictions, firing weapons at eighteen officers without striking them. The brothers eventually surrendered.

Two attorneys from the Office of the Colorado State Public Defender (plea counsel), one a death penalty specialist, were appointed to represent defendant. Counsel negotiated a plea agreement wherein defendant would plead guilty to all of the pending charges and be sentenced to consecutive maximum sentences in the presumptive range for each charge; in exchange, the prosecutor would not seek the death penalty for either brother. Pursuant to that agreement, defendant pled guilty to one count of felony first-degree murder with a predicate offense of escape for the death of the deputy sheriff, thirteen counts of attempted after deliberation first-degree murder, five counts of attempted extreme indifference first-degree murder, and one count of aggravated robbery.

On appeal, defendant contended that his plea was not knowing and voluntary because of ineffective assistance of his plea counsel. Specifically, defendant argued that his plea counsel were ineffective because they failed to advise him that he could not be convicted of first-degree felony murder with a predicate offense of escape pursuant to CRS § 18-3-102(1)(b) when the escape was a petty offense. Because defendant’s plea counsel properly advised him and his claim was based on a misunderstanding of the law, he failed to state any facts that would constitute ineffective assistance of plea counsel.

Defendant also contended that plea counsel were ineffective because they did not examine the autopsy reports, police reports, or ballistic reports, and did not interview any witnesses before advising him to plead guilty. However, defendant did not specifically identify any exculpatory evidence or lack of evidence that would have affected his decision to plead guilty. Therefore, defendant’s argument is entirely speculative and insufficient to meet his burden of alleging facts that would allow the post-conviction court to find that he was prejudiced by counsel’s alleged failure to investigate.

Defendant also contended that the trial court erred in dismissing his Crim.P. 35(c) motion as time barred under CRS § 16-5-402 for the non-class felony convictions. However, defendant filed his Crim.P. 35(c) motion after the time had expired and failed to prove any justifiable excuse or excusable neglect for the untimely filing. Therefore, the court did not err in dismissing his motion.

Defendant further argued that the sentence imposed on him was illegal because his convictions for attempted after deliberation first-degree murder and attempted extreme indifference first-degree murder required inconsistent findings of fact. The information reflected that each attempted murder charge—after deliberation and extreme indifference —involved a different victim. Consequently, the sentence imposed on defendant was not illegal.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on January 19, 2012, can be found here.

Filed Under: Case Law Tagged With: , , , ,

Tenth Circuit: City Failed to Justify Ban on Sex Offenders in Libraries; Appellate Court Bound by District Court Record

January 23, 2012 By Leave a Comment

The Tenth Circuit Court of Appeals published its opinion in Doe v. City of Albuquerque on Friday, January 20, 2012.

The Tenth Circuit affirmed the district court’s decision. Respondent, “a registered sex offender, brought a facial challenge under the First and Fourteenth Amendments to a ban enacted by the City of Albuquerque that prohibited registered sex offenders from entering the City’s public libraries. The district court denied a motion to dismiss brought by the City and ultimately granted summary judgment in favor of [Respondent]. The court concluded that the ban burdened [Respondent]’s fundamental right to receive information under the First Amendment and that the City failed sufficiently to controvert [Respondent]’s contention on summary judgment that the ban did not satisfy the time, place, or manner test applicable to restrictions in a designated public forum. The City appeals both the denial of its motion to dismiss and the grant of [Respondent]’s summary judgment motion.

Through procedural error on the part of the City, the Court was forced to affirm the decision. The City, “relying on a mistaken interpretation of case law regarding facial challenges, erroneously contended that it had no burden to do anything in response to [Respondent]’s summary judgment motion. Consequently, the City failed to present any evidence as to the reasons or justification for its ban, whether the ban was narrowly tailored to address the interest sought to be served, or whether the ban left open alternative channels for receiving information.” Had the City done so, the Court stated that it would not be “difficult to imagine that the ban might have survived [Respondent]’s challenge,” because the Court recognizes the City’s significant interest in providing a safe environment for its library patrons, especially children. As an appellate court, however, it was bound by the record and the law, and affirmed.

Filed Under: Case Law Tagged With: , , , , ,

Tenth Circuit: Determination that Mental Retardation Is Not a Fluid Concept is Consistent with Atkins

January 20, 2012 By Leave a Comment

The Tenth Circuit Court of Appeals published its opinion in Ochoa v. Workman on Wednesday, January 18, 2012.

The Tenth Circuit affirmed the district court’s decision. An Oklahoma state jury found Petitioner guilty of two counts of first degree murder and sentenced him to death. In Atkins v. Virginia, 536 U.S. 304, 321 (2002), the Supreme Court held that the Eighth Amendment precludes the execution of mentally retarded criminals. Relying on Atkins v. Virginia, 536 U.S. 304, 321 (2002), in which the Supreme Court held that the Eighth Amendment precludes the execution of mentally retarded criminals, the Oklahoma Court of Criminal Appeals granted Petitioner a post-conviction jury trial to determine whether he was mentally retarded. The jury found Petitioner failed to meet his burden of proving, by a preponderance of the evidence, he was mentally retarded, and the appeals court affirmed. The Tenth Circuit granted Petitioner permission to file a second habeas petition raising his Atkins claims in federal district court. The district court denied the petition on the merits.

Petitioner contends that “Oklahoma law, which focuses on whether a defendant is mentally retarded at the time of trial, instead of whether he was mentally retarded at the time of the commission of the crime, is ‘contrary to, or . . . an unreasonable application of’ Atkins.” The Court rejected this contention. “Oklahoma’s determination that mental retardation is not a fluid concept is entirely consistent with Atkins.” Ochoa further asserts his trial was fundamentally unfair because “(1) the jury was informed he had been convicted of a crime, (2) he was forced to attend trial in an orange prison jumpsuit, and (3) he was forced to wear a shock sleeve during trial.” However, the Court held that the district court correctly concluded none of the alleged errors identified by Petitioner entitle him to habeas relief.

Filed Under: Case Law Tagged With: , , , , , , ,

Tenth Circuit: Particulars of Prior Conviction Are Relevant and Counsel Admitted in Court that Defendant Had Been Convicted of Burglary of Dwelling

January 20, 2012 By Leave a Comment

The Tenth Circuit Court of Appeals published its opinion in United States v. Ventura-Perez on Wednesday, January 18, 2012.

The Tenth Circuit affirmed the district court’s decision and sentence. Petitioner pleaded guilty to illegal reentry after deportation subsequent to an aggravated-felony conviction. On appeal, he raises two challenges. “First, he contends that the district court miscalculated his offense level under the Sentencing Guidelines. The court increased his offense level by 16 on the ground that his Texas conviction of burglary of a habitation was for ‘burglary of a dwelling’ and therefore a crime of violence.” Second, he contends that when the court imposed its sentence, it improperly refused to consider sentencing disparities created by fast-track programs in other districts.

The Court disagreed with Petitioner’s contentions. The Court held that “even if the Texas offense of burglary of a habitation encompasses more than burglary of a dwelling, the particulars of [Petitioner]’s prior conviction are relevant and his counsel admitted at sentencing in federal court that he had been convicted of burglary of an apartment, which is clearly burglary of a dwelling. . . . On the second contention we follow recent circuit precedent and hold that [Petitioner] cannot complain of sentencing disparities because he did not present to the sentencing court any evidence that he would have been eligible for fast-track treatment in another district.”

Filed Under: Case Law Tagged With: , , , ,

Colorado Supreme Court: Reasonable Person in Defendant’s Position Would Not Have Felt Deprived of Freedom of Action to Degree Associated with Formal Arrest; Miranda Not Implicated

January 17, 2012 By Leave a Comment

The Colorado Supreme Court issued its opinion in Mumford v. People on January 17, 2012.

Criminal Law—Criminal Procedure—U.S. Constitution—Fifth Amendment—Miranda Warnings—Custody.

Andrew Mumford challenged his conviction for possession of one gram or less of cocaine, arguing, among other things, that an incriminating statement he made to a law enforcement officer should have been suppressed because it was obtained without proper warnings under Miranda v. Arizona, 384 U.S. 436 (1966). The court of appeals affirmed Mumford’s judgment of conviction, holding that Mumford was not in custody for purposes of Miranda at the time he made the statements.

The Supreme Court affirmed. The Court concluded that under the totality of the circumstances, at the time he made the incriminating statement, a reasonable person in Mumford’s position would not have felt deprived of his or her freedom of action to a degree associated with a formal arrest.

Summary and full case available here.

Filed Under: Case Law Tagged With: , , ,

Colorado Supreme Court: Police Did Not Remove Defendant to Avoid His Objection to Searching Home; Common Law Wife Gave Valid Consent to Second Warrantless Search

January 17, 2012 By Leave a Comment

The Colorado Supreme Court issued its opinion in People v. Strimple on January 17, 2012.

U.S. Constitution—Fourth Amendment—Suppression of Evidence—Co-Tenant’s Consent to Police Search of Shared Premises in Absence of Physical Presence of Other Co-Tenant.

The prosecution charged defendant Christopher Strimple with possession of an explosive or incendiary device and other crimes after a police search of the home he shared with Gabriele Thompson, his common law wife. Police responded to the home when Thompson complained of domestic abuse. When police arrived, Strimple refused to let them in, threatened to kill officers if they entered, and engaged officers in a tense stand-off for nearly forty-five minutes. He eventually surrendered peacefully, and police took him into custody.

The police conducted an initial warrantless search of the home to locate and ensure the safety of children in the home and locate a handgun Strimple said was inside the home. Thompson consented to an additional search, during which the police discovered knives, a pipe bomb, and drug paraphernalia. The trial court suppressed this evidence on the basis that, during the stand-off, Strimple had refused consent for entry into the home.

The Supreme Court held that Thompson validly gave her consent to the second warrantless search. Strimple was not physically present at the time, and the police did not remove him from the scene to avoid his objection to the search. The order was reversed.

Summary and full case available here.

Filed Under: Case Law Tagged With: , , , ,
« Older Posts