December 18, 2017

Colorado Court of Appeals: Video Recording by Confidential Informant Need Not Be Suppressed per Fourth Amendment

The Colorado Court of Appeals issued its opinion in People v. Mendez on Thursday, October 19, 2017.

Confidential Informant—Audio Recording—Video Recording—Fourth Amendment—Discovery Violation—Remedy—Evidence—Non-Testimonial—Jury Deliberations.

A confidential informant (CI) approached a police investigator with a potential target for a controlled drug buy. The investigator arranged for the CI to purchase methamphetamine from Mendez in a controlled drug buy with concealed audio and video. After the buy, the People charged Mendez with distribution of a schedule II controlled substance. Mendez moved to suppress evidence obtained during the CI’s entry into his apartment. The district court denied the motion.

On appeal, Mendez contended that his conviction must be reversed because the video recording of the controlled buy should have been suppressed as the result of an unreasonable search under the Fourth Amendment. The Colorado Court of Appeals concluded that the use of video surveillance by a CI in this case did not violate the Fourth Amendment. Mendez invited the CI into his apartment to engage in a drug transaction. Because Mendez consented to the CI’s presence in his home, he gave up any reasonable expectation of privacy in what the CI could observe or visually record. The district court properly denied the motion to suppress the resulting video recording.

Mendez next asserted that the district court abused its discretion by failing to provide an adequate remedy for a discovery violation. He argued that the prosecution’s failure to disclose a conversation between the CI and a police investigator about the Department of Homeland Security constituted a violation of his constitutional rights and the district court’s chosen remedy deprived him of a fair trial. As a sanction for the discovery violation, the district court ordered the investigator to make himself available for an interview with defense counsel to determine the scope of his representations to the CI. The district court denied defense counsel’s request that the CI be subject to recall for cross-examination. The district court’s discovery sanction was inadequate because Mendez was given no opportunity to cross-examine the CI about whether he believed he would receive immigration support from Homeland Security for his willingness to participate in the controlled buy. That belief could have been relevant to the CI’s motive, regardless of the investigator’s memory of the conversation. And the district court’s remedy did not cure that potential prejudice. Nevertheless, the district court’s error was harmless beyond a reasonable doubt and did not warrant reversal given the overwhelming evidence against Mendez at trial, and the fact that Mendez was able to successfully call the CI’s credibility into doubt by the end of trial.

Finally, Mendez argued that the district court abused its discretion in failing to limit the jury’s access to the video recording and transcript during deliberations. A district court need not limit juror access to non-testimonial evidence. It was not an abuse of discretion for the court to allow the jury unfettered access to the video recording and transcript.

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Prosecutor’s Racially Charged Statements Necessitate Reversal

The Colorado Court of Appeals issued its opinion in People v. Robinson on Thursday, October 19, 2017.

Sexual Assault—Prosecutorial Misconduct—Racial Prejudice—Evidence.

Robinson was charged with multiple counts of sexual assault, attempted sexual assault, and unlawful sexual contact. During opening statement in his criminal prosecution, the prosecutor described the incidents to the jury using race-based statements. Defense counsel did not object and the trial court did not admonish the prosecutor or instruct the jury to disregard the prosecutor’s statements. The jury convicted Robinson of two counts of unlawful sexual contact and two counts of the lesser included offense of attempted sexual assault. The trial court sentenced Robinson under the Sex Offender Lifetime Supervision Act to four years to life imprisonment.

On appeal, Robinson argued that the prosecutor’s description of “a dark penis going into a white body” during opening statement constituted prosecutorial misconduct amounting to plain error, requiring reversal of his convictions. Viewed objectively, the prosecutor’s opening statement, by its words and in the context it was presented to the jury, was an appeal to racial prejudice and improper. The statements cast serious doubt on the reliability of Robinson’s convictions.

Robinson also argued that the prosecutor engaged in misconduct when she implied that Robinson was unfaithful to his girlfriend. The nature of Robinson’s relationship with the woman with whom he lived, and whether he might have been unfaithful to her, was irrelevant.

The judgment was reversed and the case was remanded for a new trial.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Plea Counsel Correctly Advised Defendant of Likelihood of Deportation

The Colorado Court of Appeals issued its opinion in People v. Juarez on Thursday, October 19, 2017.

Foreign National—Immigration—Criminal Attorney—Ineffective Assistance of Counsel—Deportation.

Juarez is a Mexican foreign national who has lived in Denver since he was approximately 6 years old. In 2009 he was granted lawful permanent residence status. In 2011, after cocaine was found in his possession, Juarez was charged with one felony count of possession of a controlled substance. Juarez pleaded guilty to possession of a schedule V controlled substance, a class 1 misdemeanor. During his providency hearing, Juarez’s attorney acknowledged that this misdemeanor under Colorado state law was the equivalent of a felony under the Immigration and Naturalization Act. Juarez told the court that he understood that the plea could affect his immigration status. Juarez was sentenced to drug court, and after testing positive for THC, he was deported to Mexico. He filed motions for postconviction relief alleging ineffective assistance of counsel, which were denied.

On appeal, Juarez argued that his attorney performed deficiently by failing to inform him that he would be subject to “mandatory deportation” if convicted. Juarez’s attorney acted within the objective standard of reasonableness by informing Juarez that he was “very likely” to be deported by entering into the plea agreement. Therefore, Juarez’s attorney provided constitutionally effective representation.

Juarez also argued that his attorney was required to advise him that his guilty plea would result in lifetime inadmissibility to the United States, mandatory detention, and destruction of the defense of cancellation of removal. Criminal defense attorneys are not required to function as immigration lawyers, and the court of appeals found no support for these arguments. Counsel’s performance was within the range of competence demanded of attorneys in criminal cases.

The order was affirmed.

Summary provided courtesy of Colorado Lawyer.

Tenth Circuit: Jurisdiction Over Crimes Committed in Indian Country is Properly Under the Federal Government

The Tenth Circuit of Appeals issued its opinion in Murphy v. Royal on Tuesday, August 8, 2017.

Petitioner-Appellant Murphy challenged the jurisdiction of the Oklahoma state court in which he was convicted of murder and sentenced to death. He contended he should have been tried in federal court because he is an Indian and the offense occurred in Indian country. The Tenth Circuit Court of Appeals agreed and remanded to the district court to issue a writ of habeas corpus vacating his conviction and sentence.

The Tenth Circuit addressed four issues in determining whether the state court had jurisdiction: (1) federal habeas corpus review; (2) Indian county jurisdiction generally; (3) Indian reservations; and (4) how a reservation can be disestablished or diminished.

The court found that Murphy’s crime occurred on the Indian Reservation, and therefore, the Oklahoma court lacked jurisdiction. The court reviewed the Antiterrorism and Effective Death Penalty Act (AEDPA). Section 2254(d) provides three ways to overcome AEDPA deference. The court focused on §2254(d)(1), which states that a state prisoner can qualify for habeas relief by showing a state court decision was “contrary to” federal law that was clearly established by the Supreme Court.

When a state court adjudicates a prisoner’s federal claim on the merits, review under § 2254(d)(1)’s contrary to clause proceeds in three steps: (1) whether there is clearly established federal law that applies to the claim; (2) whether the state court’s decision was contrary to that law; and (3) if the state court rendered a decision that was contrary to clearly established Supreme Court precedent by applying the wrong legal test, applying the correct law. The Circuit assumed that AEDPA supplied the standard of review, therefore the substantive law governing Indian country jurisdiction applies to these claims.

The Major Crimes Act is the jurisdictional statute at the heart of this case and applies to enumerated crimes committed by Indians in Indian country. The jurisdiction is exclusively federal, meaning the State of Oklahoma does not have jurisdiction over crimes committed by or against an Indian in Indian Country.

Congress has provided that “Indian Country” includes all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation. Therefore, all lands within the boundaries of a reservation have Indian country status.

Only Congress can disestablish or diminish a reservation. As Congress possesses plenary power over Indian affairs, including the power to modify or eliminate tribal rights, Congress also has the power to eliminate or reduce a reservation against a tribe’s wishes and without consent. Having recognized this power, the Supreme Court has developed a framework to determine whether Congress has exercised its power with respect to a given reservation.

First, there is a presumption against disestablishment and diminishment, and courts do not lightly infer that Congress has exercised this power. The Supreme Court has required that the congressional determination to terminate be expressed on the face of the Act or be clear from the surrounding circumstances and legislative history.

Next is Congress’s pursuit of a policy called allotment and its relationship to reservation borders. Congress has historically adopted the view that the Indians tribes should abandon their nomadic lives on the communal reservations and settle into an agrarian economy on privately-owned parcels of land. This policy involved Congress dividing, or “allotting,” communal Indian lands into individualized parcels for private ownership by tribal members. Allotment on its own, however, does not disestablish or diminish a reservation, but may alter the boundaries of some reservations.

To distinguish congressional acts that changed a reservation’s borders from those that simply offered non-Indians the opportunity to purchase land within established reservation boundaries, the Supreme Court has developed a three-part framework:

  1. Courts must examine the text of the statute purportedly disestablishing or diminishing the reservation. No particular form of words, however, is necessary to diminish a reservation.
  2. Courts must consider events surrounding the passage of the statute. Courts have found that Congress altered the borders if evidence at step two unequivocally reveals a widely-held understanding that the affected reservation would shrink as a result of the proposed legislation.
  3. Courts must consider events that occurred after the passage of the statute. Evidence to be considered can include Congress’s own treatment of the affected areas, as well as the manner in which the Bureau of Indian Affairs and local judicial authorities dealt with unallotted open lands.

The Tenth Circuit applied the three-part framework described above and concluded that Congress did not disestablish the Reservation at issue in this case. The court found that the most important evidence, the statutory text, failed to reveal disestablishment at step one. Instead, the relevant statutes contain language affirmatively recognizing the Reservation’s borders. The evidence of contemporaneous understanding and later history, which was considered at steps two and three, is mixed and falls far short of unequivocally revealing a congressional intent to disestablish. Because the application of the framework shows Congress has not disestablished the Reservation, the crime in this case occurred within the Reservation’s boundaries. The State of Oklahoma accordingly lacked jurisdiction to prosecute Murphy.

After applying the three-part framework, the court concluded that Congress has not disestablished the Indian Reservation at issue in this case. The crime in this case occurred in Indian country, Murphy is an Indian, and the federal court has exclusive jurisdiction, not Oklahoma. Murphy’s state conviction and death sentence are thus invalid. The decision whether to prosecute Murphy in federal court rests with the United States and decisions about the borders of the Indian Reservation remain with Congress.

The Tenth Circuit Court of Appeals REVERSED the district court’s judgement and REMANDED with instructions to grant Murphy’s application for writ of habeas corpus.

Colorado Supreme Court: Defendant May Fire Retained Counsel for Any Reason but Must Face Consequences

The Colorado Supreme Court issued its opinion in Ronquillo v. People on Monday, October 16, 2017.

Criminal Law—Counsel—Choice of Counsel—Continuance.

The Colorado Supreme Court held that the Sixth Amendment right to counsel of choice includes the right to fire retained counsel without having to show good cause, even when the defendant wants appointed counsel. But defendants who fire retained counsel will not necessarily be allowed to proceed as they wish. Accordingly, trial courts must ensure that defendants understand the consequences of firing retained counsel. The court outlined the analysis that trial courts should conduct before releasing retained counsel from a case. Because the Colorado Court of Appeals erred by requiring Ronquillo to show good cause for firing retained counsel, the court reversed and remanded for further proceedings.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Hospital Has No Private Right of Action Against Police Department for Cost of Treatment

The Colorado Supreme Court issued its opinion in City of Arvada ex rel. Arvada Police Department v. Denver Health & Hospital Authority on Monday, October 9, 2017.

Prisons—Costs of Incarceration.

Arvada police arrested a severely injured man and sent him to Denver Health Medical Center. Denver Health and Hospital Authority (Denver Health) sued Arvada for the cost of care, claiming that C.R.S. § 16-3-401, which says that persons in custody “shall be . . . provided . . . medical treatment,” required Arvada to pay the hospital for the detainee’s care. Here, the Colorado Supreme Court clarified that (1) whether a statute provides a private right of action is a question of standing, and (2) the same test for a private right of action under Allstate Insurance Co. v. Parfrey, 830 P.2d 905 (Colo. 1992), applies for claims against both governmental and non-governmental defendants. Applying Parfrey to Denver Health’s statutory claim, the court held that C.R.S. § 16-3-401 does not provide hospitals a private right of action to sue police departments for the cost of providing healthcare to persons in custody. Accordingly, it concluded that the trial court erred by granting summary judgment to Denver Health on the statutory claim. The court remanded the case for consideration of Denver Health’s unjust enrichment claim based on Arvada’s statutory duty to provide care for persons in custody.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Colorado Human Smuggling Statute Preempted by Federal Immigration & Nationality Act

The Colorado Supreme Court issued its opinion in Fuentes-Espinoza v. People on Monday, October 9, 2017.

Alien Smuggling—Field Preemption—Conflict Preemption.

This case required the Colorado Supreme Court to determine whether Colorado’s human smuggling statute, C.R.S. § 18-13-128, is preempted by the federal Immigration and Nationality Act, 8 U.S.C. §§ 1101–1537 (2017) (INA). The court concluded that the INA preempts C.R.S. § 18-13-128 under the doctrines of both field and conflict preemption. In reaching this conclusion, the court agreed with a number of federal circuit courts that have reviewed the same INA provisions at issue here and have determined that those provisions create a comprehensive framework to penalize the transportation, concealment, and inducement of unlawfully present aliens and thus evince a congressional intent to occupy the field criminalizing such conduct. In addition, applying the analyses set forth in those federal decisions, the court concluded that C.R.S. § 18-13-128, like the state human smuggling statutes at issue in the federal cases, stands as an obstacle to the accomplishment and execution of Congress’s purposes and objectives in enacting its comprehensive framework. Accordingly, the court reversed petitioner’s judgment of conviction under C.R.S. § 18-13-128.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Dying Declaration Admissible Regardless of Whether Testimonial or Non-Testimonial

The Colorado Court of Appeals issued its opinion in People v. Cockrell on Thursday, October 5, 2017.

Dying Declarations Statute—Evidence—Confrontation Clause.

The victim was shot 11 times and was found by bystanders, who asked him questions. The victim answered their questions but did not provide the shooter’s name. On the way to the hospital, the victim identified Cockrell as the shooter to an officer who rode in the ambulance. The victim died soon thereafter during surgery. No DNA, fingerprint, or other forensic evidence tied Cockrell to the victim’s murder. The primary evidence against him was the victim’s dying declaration identifying Cockrell as the shooter and a bystander’s statement that he saw a car leaving the area around the same time the victim was found that matched the description of the car Cockrell drove. The trial court denied Cockrell’s motion to suppress the dying declaration and to find C.R.S. § 13-25-119 unconstitutional. Cockrell was found guilty of first degree murder and two crime of violence sentence enhancers.

On appeal, Cockrell contended that C.R.S. § 13-25-119, the dying declaration statute, is unconstitutional on its face because it violates the Confrontation Clause. Dying declarations are an exception to the hearsay rule because of their guarantee of trustworthiness, and precluding their admission would in many cases result in a failure of justice. The court of appeals held that dying declarations are an exception to the Confrontation Clause and the dying declaration statute is constitutional.

Cockrell also contended that the victim’s statement did not satisfy the statutory requirements for admission of dying declarations. The first statutory requirement was satisfied because the parties agreed that the victim believed he was going to die; he had 11 gunshot wounds and death was imminent, and he made statements indicating he feared he was going to die. As to the other three requirements, Cockrell argued that (1) the statements were not voluntary; (2) the statements were made in response to questions calculated to lead the deceased to make the particular statement; and (3) the victim was not of sound mind when he made the statements. However, the record supports the trial court’s finding that (1) the victim’s statements were voluntarily made; (2) the questions asked of the victim were designed to gather facts with no apparent pretense; and (3) although the victim was in a great deal of pain and had trouble breathing, he was conscious and alert and answered questions appropriately, and thus was of sound mind when he identified Cockrell as his shooter.

Lastly, Cockrell contended that there was insufficient evidence to support his first degree murder conviction. Based on the evidence presented, it was rational for the jury to have found Cockrell guilty as charged.

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Predicate Offense Must Be Felony at Time of Current Offense for Habitual Offender Designation

The Colorado Court of Appeals issued its opinion in People v. Kadell on Thursday, October 5, 2017.

Habitual Criminal—Sufficiency of Evidence—Prior Felony Conviction—Collateral Attack—Excusable Neglect—Extended Proportionality Review.

A jury convicted Kadell of six counts of robbery and one count of aggravated motor vehicle theft, each of which is a class 4 felony. The prosecution filed habitual criminal counts, and Kadell moved to suppress his prior felony convictions as a way to collaterally attack those convictions. The motion was untimely, but Kadell argued that his failure to timely file was the result of excusable neglect. The trial court did not rule on the excusable neglect claim. Before sentencing, the trial court adjudicated Kadell a habitual criminal based on three prior felony convictions, including, as relevant here, one in 1997 for attempted cultivation of marijuana. In accordance with the habitual criminal statute, the trial court imposed a 24-year sentence in the custody of the Department of Corrections, four times the presumptive maximum sentence for a class 4 felony.

On appeal, Kadell contended that the trial court erred in imposing a sentence under the habitual criminal statute because there was insufficient evidence that he was convicted of three qualifying felonies before his current convictions. He argued that his 1997 conviction for attempted cultivation of marijuana did not count as a felony under the habitual criminal statute because when he committed his offenses in this case, attempted cultivation of marijuana was no longer a felony in Colorado unless the defendant possessed more than six plants, and the trial court had no evidence of how many plants were involved in the 1997 conviction. As a matter of first impression, the Colorado Court of Appeals concluded that for a prior drug felony conviction to qualify as a predicate offense under the habitual criminal statute, the prosecution must prove that the prior offense of conviction remained a felony under Colorado law at the time the defendant committed the new offense, even when the prior conviction was entered in Colorado. The prosecution did not present sufficient evidence of this fact at Kadell’s sentencing hearing.

Kadell next argued that the trial court erred by finding that his failure to timely file a collateral attack on his prior convictions was not the result of excusable neglect. The issue of excusable neglect is a question of fact to be resolved first by the trial court. The record does not reflect that the trial court ruled on Kadell’s excusable neglect claim.

Kadell further sought an extended proportionality review of his sentence. This argument is moot at this juncture.

The sentence was reversed and the case was remanded for further proceedings.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: District Court May Collect Unpaid Restitution After Completion of Deferred Sentence

The Colorado Supreme Court issued its opinion in Pineda-Liberato v. People on Monday, October 2, 2017.

Sentencing—Deferred Sentences—Restitution—Court Costs and Fees.

This case required the supreme court to determine whether the district court had the authority to continue to collect unpaid restitution, court costs, and fees ordered as conditions of petitioner’s deferred sentence after the completion of that deferred sentence. The court concluded that the district court may collect any unpaid restitution from petitioner after the completion of her deferred sentence, until the restitution has been paid in full. With respect to the unpaid fees and costs, however, the court concluded that the district court lacked the authority to collect such unpaid amounts after it terminated petitioner’s deferred sentence, withdrew her guilty plea, and dismissed her case with prejudice. Accordingly, the court affirmed the district court’s orders in part and reversed in part.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Translated Miranda Warning Adequately Conveyed Intent of Warning

The Colorado Supreme Court issued its opinion in People v. Nguyen on Monday, October 2, 2017.

Miranda Warnings.

The Colorado Supreme Court held that a translated Miranda warning stating that if the suspect waived his right to be silent, “[a]ll you say will and may be used as evidence in court,” reasonably conveyed to defendant that anything he said could be used against him in court. By informing him that his statements could be used in court, the translation included the concept that the statements could be used against him (as well as for him) in court. The court also held that a Miranda warning stating that “if you do not have money to hire an attorney the court will instruct you, will appoint a person to you at no cost to represent you before asking questions” adequately conveyed the right to an appointed attorney.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Presentence Confinement Credit Only To Be Given for Charge Being Sentenced

The Colorado Supreme Court issued its opinion in People v. Torrez on Monday, October 2, 2017.

Criminal Law—Sentencing—Presentence Confinement Credit.

The Colorado Supreme Court reviewed the Colorado Court of Appeals’ opinion crediting defendant for a confinement period after a not guilty by reason of insanity verdict on an unrelated  charge. Under C.R.S. § 18-1.3-405, credit is to be given only where the presentence confinement is caused by the charge on which the defendant is being sentenced. Considering Massey v. People, 736 P.2d 19 (Colo. 1987), and People v. Freeman, 735 P.2d 879 (Colo. 1987), the court concluded that defendant was not entitled to presentence confinement credit for her confinement before or after the not guilty by reason of insanity verdict. Accordingly, the court affirmed the judgment of the court of appeals in part and reversed in part, and remanded the case for further proceedings consistent with this opinion.

Summary provided courtesy of Colorado Lawyer.