March 24, 2018

Income Eligibility Guidelines Updated; Several CJDs Affected

On Thursday, February 22, 2018, the Colorado State Judicial Branch released revisions to the Income Eligibility Guidelines. Several Chief Justice Directives were affected by these revisions:

  • CJD 98-01 – “Costs for Indigent Persons in Civil Matters”
  • CJD 04-04 – “Appointment of State-Funded Counsel in Criminal Cases and for Contempt of Court”
  • CJD 04-05 – “Appointment and Payment Procedures for Court-appointed Counsel, Guardians ad litem, Child and Family Investigators, and Court Visitors paid by the Judicial Department in proceedings under Titles 12, 13, 14, 15, 19 (special respondents in dependency and neglect only), 22, 25.5, and 27, C.R.S.”
  • CJD 04-06 – “Court Appointments Through the Office of the Child’s Representative”
  • CJD 14-01 – “Appointment of State-Funded Counsel in Juvenile Delinquency Cases”
  • CJD 16-02 – “Court Appointments Through the Office of Respondent Parents’ Counsel”

All of the Colorado Supreme Court’s Chief Justice Directives can be accessed here.

Colorado Supreme Court: Admission of Victim’s Out-of-Court Statements to Officer Did Not Affect Outcome of Trial

The Colorado Supreme Court issued its opinion in Pernell v. People on Tuesday, February 20, 2018.

Criminal Law—Harmless Error.

The supreme court reviewed the court of appeals’ opinion affirming defendant’s conviction for burglary, kidnapping, sexual assault, and other offenses. The court of appeals held that although the trial court erred by admitting a victim’s out-of-court statements as excited utterances under CRE 803(2), the trial court’s error did not require reversal because the statements were admissible as prior consistent statements to rehabilitate the victim’s credibility after defense counsel attacked it during his opening statement. The court concluded that any error in the admission of the victim’s out-of-court statements was harmless because there was no reasonable possibility that the admission of these statements contributed to defendant’s conviction. Accordingly, the court declined to address whether defense counsel’s opening statement opened the door to the admission of the victim’s out-of-court statements and expressed no opinion on this issue. The court therefore affirmed the judgment of the court of appeals, albeit on different grounds.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Prosecutor’s Use of Partially Completed Puzzle to Illustrate Reasonable Doubt was Misconduct

The Colorado Court of Appeals issued its opinion in People v. Van Meter on Thursday, February 8, 2018.

Criminal Law—Possession of a Weapon by a Previous Offender—Reasonable Doubt—Mistrial—Prosecutorial Misconduct—Jury Instruction—Possession—Evidence.

Van Meter pleaded guilty to multiple crimes and served time in the Department of Corrections’ custody. After Van Meter was released on parole, his employer told Van Meter’s parole officer that Van Meter had a gun in his car and was possibly using heroin and stealing from customers. When Van Meter arrived at work he was arrested, and officers found a loaded semi-automatic handgun inside a toolbox in the trunk of his car. A jury found Van Meter guilty of possession of a weapon by a previous offender (POWPO).

On appeal, Van Meter argued that the trial court reversibly erred in failing to declare a mistrial after a prospective juror stated in front of the panel that he was aware of the underlying case because he was a deputy sheriff and had transported Van Meter to court. The record supports the trial court’s determination that the challenged comments did not taint the entire panel because they did not necessarily imply that the deputy sheriff transported Van Meter to court for the underlying case rather than a previous case, and the POWPO charge required the jury to learn that Van Meter had a prior felony conviction. The trial court did not abuse its discretion in declining to declare a mistrial.

Van Meter next asserted that the trial court reversibly erred by allowing the prosecutor to show the jury a picture of a partially completed puzzle of an iconic and easily recognizable space shuttle image to explain the concept of reasonable doubt. There was no contemporaneous objection. The challenged behavior constituted prosecutorial misconduct. However, because all the elements of the POWPO charge were clearly proven, and the error was neither obvious nor substantial, the trial court did not plainly err in allowing the prosecutor’s improper conduct.

Van Meter also argued that the trial court erroneously instructed the jury on the definition of “possession” in the context of the POWPO charge. The trial court gave the definition of “possession” from the new criminal jury instructions, and defense counsel affirmatively declined to object to the challenged instruction three times. The challenged instruction was not incorrect or otherwise confusing to the extent that it constituted plain error.

Van Meter next contended that the trial court reversibly erred in allowing evidence that the gun found in his vehicle was stolen and that Van Meter was allegedly using illicit drugs. Here, defense counsel offered no contemporaneous objections and strategically chose to elicit CRE 404(b) evidence, and there was overwhelming evidence of Van Meter’s guilt. Any error in allowing the challenged evidence did not rise to the level of plain error.

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Sentence of Indeterminate Term of Probation Permitted by Statute

The Colorado Court of Appeals issued its opinion in People v. Trujillo on Thursday, February 8, 2018.

Criminal Law—Foreclosure—Theft—Criminal Mischief—Sentencing—Jury Instructions—Evidence—Motive—Prosecutorial Misconduct—Probation—Indeterminate Sentence—Costs.  

Trujillo took out a construction loan from the victim, a bank, for home construction. After construction was completed on the house, Trujillo stopped making his monthly loan payments, and the bank subsequently initiated foreclosure proceedings. Before the foreclosure sale, Trujillo removed or destroyed property in the house, which resulted in a decrease in the home’s value from $320,000 to $150,000. A jury found him guilty of theft and criminal mischief.

On appeal, Trujillo contended that he should have benefited from an amendment to the theft statute reclassifying theft between $20,000 and $100,000 as a class 4 felony. Before the amendment, theft over $20,000 constituted a class 3 felony. Trujillo was charged with theft before the statute was amended but was not convicted or sentenced until after the General Assembly lowered the classification for theft between $20,000 and $100,000. Thus, Trujillo was entitled to the benefit of the amendment.

Trujillo also asserted that the trial court erred in rejecting various jury instructions regarding his theory of the case. Throughout trial, the defense’s theory of the case was that Trujillo lacked the requisite intent to commit the charged offenses because he believed that the property he removed from the house belonged to him. Here, the trial court instructed the jury on Trujillo’s theory of the case in an instruction that clearly stated that Trujillo believed the property he took from the house was “his sole property.” The trial court did not abuse its discretion in drafting a theory of defense instruction that encompassed the defense’s tendered instructions.

Trujillo next asserted that the trial court erred in allowing the People to introduce evidence that another property of his had been foreclosed. However, the evidence was directly relevant to Trujillo’s intent and motive. Therefore, the trial court did not err in admitting it.

Trujillo further argued that the prosecutor improperly commented on the district attorney’s screening process for bringing charges and Trujillo’s decision to not testify, and improperly denigrated defense counsel and the defense’s theory of the case. Although the prosecutor improperly denigrated defense counsel and the defense’s theory of the case, viewing the record as a whole there was not a reasonable probability that the remarks contributed to Trujillo’s convictions. There was no basis for reversal.

Trujillo also contended that the trial court exceeded its statutory authority in sentencing him to indeterminate probation. The statute, however, does not prohibit such sentencing, and based on the substantial amount of restitution Trujillo owed, the trial court did not abuse its discretion in sentencing him to an indefinite probation sentence.

Lastly, the court of appeals agreed with Trujillo’s assertion that the trial court erred in awarding the full costs of prosecution requested by the People without making a finding on whether any portion of the costs was attributable to the acquitted charge.

The judgment of conviction was affirmed. The sentence was affirmed in part and vacated in part, and the case was remanded with directions.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: District Court Erred in Stripping Documents of Attorney-Client Privilege Without Satisfying Test

The Colorado Supreme Court issued its opinion in In re 2015–2016 Jefferson County Grand Jury on Monday, February 5, 2018.

Privileged Communications and Confidentiality—Crime–Fraud exception—Wiretapping.

A grand jury investigating M.W. and his company I.I. issued a subpoena duces tecum to I.I.’s attorney ordering her to produce all documents related to her representation of I.I. Along with the subpoena, the People served a notice of hearing to determine whether the documents were protected by the attorney-client privilege. In the notice, the People provided wiretap summaries as an offer of proof that the crime-fraud exception to the attorney-client privilege applied. Reasoning that I.I.’s entire endeavor was illegal, the district court ordered all of the attorney-client communications stripped of privilege without reviewing them in camera.

The Colorado Supreme Court held that a two-step process applies when a party seeks disclosure of attorney-client-privileged documents under the crime-fraud exception. First, before a court may review the privileged documents in camera, it must “require a showing of a factual basis adequate to support a good faith belief by a reasonable person that wrongful conduct sufficient to invoke the crime or fraud exception to the attorney-client privilege has occurred.” Caldwell v. Dist. Court, 644 P.2d 26, 33 (Colo. 1982). Second, the court may strip a communication of privilege only upon a showing of probable cause to believe that (1) the client was committing, or attempting to commit, a crime or fraud, and (2) the communication was made in furtherance of the putative crime or fraud. Because the People failed to make such a showing here, the district court abused its discretion in stripping the documents of privilege. The court also held that, based on the facts of this case, the district court should have required the People to disclose the applications and authorizations for the intercepts that it provided to support the subpoena under C.R.S. § 16-15-102(9) of Colorado’s wiretap statutes.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Full-Size Mock Up of Crime Scene Admissible Under Four-Part Douglas Test

The Colorado Court of Appeals issued its opinion in People v. Palacios on Thursday, January 25, 2018.

Criminal Law—Fifth Amendment—Photo Identification—Demonstrative Exhibit.

Defendant was convicted of felony murder, aggravated robbery, and other offenses after a drug-deal-turned-robbery ended in the shooting death of the victim by defendant’s accomplice.

On appeal, defendant argued that the court erred in failing to suppress a witness’s identification as the product of an impermissibly suggestive identification procedure because defendant’s photo was placed in position 3 in the photo array after the witness had selected a filler photograph in position 3 from the initial array. The witness, the victim’s girlfriend, witnessed the murder. She had previously selected photos in positions 1, 3 and 5. Position 3 did not have special suggestive properties, as defendant’s argument would apply with equal force if the officer had placed his photo in either position 1 or 5. The mere placement of defendant’s photo in a particular position, without more, does not render the identification procedure impermissibly suggestive. The court properly denied the motion to suppress the girlfriend’s identification.

Defendant also argued on appeal that the court erred in permitting the prosecution to use demonstrative aids because their size was inaccurate, and the inaccuracy rendered the mock-ups misleading and therefore unfairly prejudicial. Here, the prosecution used a full-size mock-up of the garage crime scene as a demonstrative aid during the testimony of a sheriff’s department investigator and the eyewitness drug supplier. The prosecution also referred to a smaller version of the mock-up during closing argument. A demonstrative aid must be authentic, relevant, a “fair and accurate representation of the evidence to which it relates,” and not unduly prejudicial. Here, the record demonstrated that the full-size mock-up was substantially similar to the actual garage, and defendant failed to show any prejudice from the use of such mock-up. Further, defense counsel admitted that the smaller mock-up was accurate. Accordingly, the district court did not err in allowing the prosecution to use the demonstrative aids.

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: GPS Data from Ankle Monitor Properly Admitted to Show Defendant’s Location at Time of Robbery

The Colorado Court of Appeals issued its opinion in People v. Campbell on Thursday, January 25, 2018.

Constitutional Law—Fourth Amendment—Illegal Search and Seizure—Reasonable Suspicion—Reasonable Expectation of Privacy—GPS Data—Identification.

Campbell’s vehicle was pulled over and Campbell was arrested on suspicion of burglary. Officers searched Campbell and found he had on an ankle monitor, which he was wearing at the request of a private bail bondsman. A detective later requested and received the global positioning system (GPS) data from the company owning the ankle monitor. The GPS data revealed that, within the month before the victim’s home was broken into, Campbell had been at the location of two other homes when they were burglarized. The GPS data also placed Campbell at the victim’s house at the time of the break-in. Campbell was convicted of two counts of second degree burglary, one count of attempted second-degree burglary, and three counts of criminal mischief.

On appeal, Campbell contended that the trial court erred in denying his motion to suppress evidence obtained as a result of an illegal seizure and search of his person. The officers had reasonable suspicion to stop Campbell based on his violation of traffic laws. Further, the officers had probable cause to believe defendant was committing the felony of vehicular eluding, and therefore constitutionally arrested and searched him. The trial court did not err in denying Campbell’s motion to suppress evidence obtained as a result of his seizure and search.

Campbell also contended that the trial court erred in denying his motion to suppress GPS data obtained from the ankle monitor. The court of appeals concluded, as a matter of first impression, that defendant did not have a reasonable expectation of privacy in the GPS location data generated by the ankle monitor under the U.S. or Colorado Constitutions. Defendant voluntarily disclosed the data, which was transmitted to and collected by a third party that voluntarily gave the data to law enforcement officials. Further, the trial court did not err in admitting the GPS evidence without first conducting a hearing pursuant to People v. Shreck, 22 P. 3d 68 (Colo. 2001), to assess its reliability, because GPS technology is prevalent and widely regarded as reliable.

Campbell additionally contended that the trial court erred in denying his motion to suppress the victim’s identification because the identification was unduly suggestive and unreliable. The victim had the opportunity to see the intruder for one or two seconds in a well-lit area while the two men were approximately 10 feet apart before Campbell ran out of the house. Although the victim was not wearing contact lenses or eyeglasses, he felt he was able to see the intruder sufficiently to identify him. The victim immediately called 911 and described Campbell. The police brought Campbell to the scene handcuffed in the back of a police vehicle for a one-on-one identification. The identification occurred less than an hour after the victim saw the intruder. Although the lineup was suggestive, it was reliable under the totality of the circumstances.

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Defendant May Challenge Unrevoked Deferred Judgment, and Court Has Jurisdiction to Review District Court’s Denial

The Colorado Court of Appeals issued its opinion in People v. Figueroa-Lemus on Thursday, January 25, 2018.

Crim. P. 32(d)—Withdrawal of Plea—Deferred Judgment —Immigration—Deportation—Ineffective Assistance of Counsel.

Defendant pleaded guilty to possession of a schedule II controlled substance and driving under the influence (DUI). The parties stipulated to a two-year deferred judgment on the possession count and probation on the DUI count. The court accepted the deferred judgment and sentenced defendant to two years of probation. About five months later, defendant filed a Crim. P. 32(d) motion to withdraw his guilty plea to the possession count, arguing that his defense and immigration counsel were ineffective for failing to advise him of the clear immigration consequences of the plea. After an evidentiary hearing, the district court denied the motion.

The People filed a motion to dismiss the appeal, arguing that there was no jurisdiction to review the order denying the Crim. P. 32(d) motion. They contended that the order was not final and appealable because defendant’s motion challenged a deferred judgment (a non-final judgment) that had not been revoked when the court entered the order or when defendant filed the notice of appeal. Under Crim. P. 32(d), a defendant may challenge a guilty plea involving a deferred judgment that is still in effect. The court of appeals concluded it could review the district court’s order denying the Crim. P. 32(d) motion.

Defendant argued on appeal that his guilty plea was not made knowingly, voluntarily, and intelligently because his counsel never informed him of the clear immigration consequences of the plea. The record supports the district court’s finding that defendant’s counsel advised him on multiple occasions that a guilty plea to a drug felony would result in deportation. The court also rejected defendant’s argument that counsel should have advised him that he would be held in custody during the removal proceeding, because counsel was not required to give this advice. Therefore, counsel’s performance was not deficient, and the district court did not abuse its discretion when it denied the Crim. P. 32(d) motion.

The order was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Prosecution’s Withholding of Evidence was Brady Violation and Sanctions Warranted

The Colorado Supreme Court issued its opinion in People v. Bueno on Monday, January 22, 2018.

Motion for New Trial—Evidence.

In this case, the Colorado Supreme Court considered two questions. The first is whether a Crim. P. 33(c) motion for a new trial is time-barred because it was filed more than one year after the defendant’s conviction, and thus arguably more than one year after “entry of judgment.” The second is whether the trial court erred in granting a new trial after concluding that the prosecution violated Brady v. Maryland, 373 U.S. 83 (1963), by failing to provide to the defense evidence that the prosecution had obtained at the outset of the investigation until after defendant’s conviction. The court held that “entry of judgment,” for the purposes of Rule 33(c), does not occur until both a verdict or finding of guilt and the imposition of a sentence. The court concluded that, applying Brady’s disclosure requirements, the trial court did not abuse its discretion in granting a motion for a new trial.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Actual Person Needs to be At Risk to Satisfy Reckless Manslaughter and Assault Elements

The Colorado Supreme Court issued its opinion in People v. Griego on Monday, January 22, 2018.

Attempted Recklessness—Attempted Reckless Manslaughter—Equal Protection.

In this case, the supreme court considered whether the requirement in the attempted reckless manslaughter and attempted second degree assault statutes that a defendant place “another person” at risk of death or serious bodily injury necessitates that an actual, discernible person be placed at risk, or whether “another person” can refer to the public at large. The court concluded that the statutes at issue require a showing of a risk to an actual, discernible person and that a risk to the public at large is insufficient. Here, because the People presented no evidence that defendant’s actions put any particular person at risk, the court affirmed the court of appeals’ judgment reversing his convictions.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Officers Acquired Reasonable Suspicion By the Time Stop Became Investigatory

The Colorado Supreme Court issued its opinion in People v. Fields and People v. Reed on Tuesday, January 16, 2018.

Contact-Short-of-a-Stop—Reasonable Articulable Suspicion—Probable Cause—Inevitable Discovery.

The People brought interlocutory appeals, as authorized by C.R.S. § 16-12-102(2) and C.A.R. 4.1, from the district court’s orders suppressing contraband and statements in the related prosecutions of defendants Fields and Reed. The district court found that the initial contact with both defendants in a parked car constituted an investigatory stop for which the police lacked reasonable articulable suspicion, and it suppressed all evidence acquired after the point of initial contact as the fruit of an unlawful stop.

The supreme court reversed the district court’s suppression orders and remanded the case for further proceedings. The court held that the district court failed to appreciate that the officers’ initial contact with defendants fell short of a stop. By the point at which the contact progressed to a seizure within the contemplation of the Fourth Amendment, the officers had acquired the requisite reasonable articulable suspicion, and subsequently probable cause, to justify their investigative conduct, or inevitably would have lawfully arrested defendants and discovered the contraband.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Whether Minor Initiated Sexual Contact is Irrelevant Under Sexual Assault on a Child Statutes

The Colorado Court of Appeals issued its opinion in People v. Sparks on Thursday, January 11, 2018.

Sexual Assault—Child—Prosecutorial Misconduct—Sufficiency of Evidence—Hearsay—Jury Instructions—Video Interview of Defendant.

Sparks attended a party at his wife’s cousin’s house. The cousin’s daughter, A.M., reported that while she was at the party and Skyping on her computer, Sparks touched her breast over her clothing. She also reported that as she was Skyping, her friend S.F. (the victim) and Sparks were behind her, and that through her computer’s camera she saw the victim grabbing Sparks’s groin area and making other movements. At the time, A.M. was 14 and the victim was 13. Sparks admitted to what A.M. reported and to touching the victim’s groin, breast, and bottom area. Sparks was convicted of one count of sexual assault on a child as to the victim.

On appeal, Sparks contended that the prosecutor engaged in misconduct by misstating the law and evidence during closing argument. Specifically, Sparks asserted it was error for the prosecutor to tell the jury that it did not matter that the victim initiated the sexual contact, arguing that C.R.S. § 18-3-405(1), the sexual assault on a child statute, required the prosecution to prove that he caused the victim to become subservient or subordinate or that the child victim initiated the sexual contact at his directive. Sexual contact includes the touching of the defendant’s intimate parts by the victim. The phrase “subjects another . . . to any sexual contact” in the statute does not require the People to prove that defendant caused the child-victim to become “subservient or subordinate” or that the child-victim initiated the sexual contact at defendant’s directive. There was no error in the prosecutor’s statement to the jury.

Sparks also argued that the prosecutor misstated the evidence by saying A.M. saw improper sexual contact between the victim and Sparks through a computer camera while on Skype and that Sparks knew exactly how old the victim was. As discussed below, the court did not err in admitting this evidence, and given this evidence, the prosecutor did not misstate nor draw improper inferences from it.

Sparks further contended that the prosecution failed to produce sufficient evidence to prove that he committed sexual assault on a child because the only evidence as to the victim’s age was inadmissible. He contended that the court erred in admitting the detective’s and A.M.’s testimony and Sparks’s interview statement about the victim’s age because these were hearsay. All of this evidence was admitted without objection. A.M.’s testimony may have been based on her personal knowledge or the victim’s reputed age, and thus would not have been hearsay or would have fallen within a hearsay exception. Thus, the trial court’s ruling on A.M.’s testimony was not erroneous, much less obviously so. Similarly, the basis for the detective’s testimony could not be determined, but the court of appeals could not conclude that the trial court’s admission of this testimony was obviously erroneous. And even assuming that admitting this testimony was obvious error, such error would be harmless in light of A.M.’s testimony and Sparks’s interview statement. CRE 805 does not apply to Sparks’s interview admission because as a party opponent his statement does not require firsthand knowledge to be admissible. It was not plain error to admit the evidence, and it was sufficient.

Sparks also asserted that the court abused its discretion by instructing the jury that it could assign his interview video any weight it wanted when the court provided the video to the jury during deliberations. The court did not instruct the jury to give Sparks’s statements any weight it wanted. Further, no special protections against undue emphasis as to a defendant’s out-of-court statements were required. Lastly, the court provided specific instructions for the jury to follow in viewing the evidence, and thus appropriately exercised its discretion.

Sparks further contended that the trial court denied him his constitutional right to effective assistance of counsel by providing his interview video to the jury during deliberations without notifying his counsel. The court agreed, but concluded this error was harmless beyond a reasonable doubt.

The judgment of conviction was affirmed.

Summary provided courtesy of Colorado Lawyer.