April 20, 2018

Colorado Court of Appeals: “Fruit of the Poisonous Tree” Doctrine Did Not Apply to Statements

The Colorado Court of Appeals issued its opinion in People v. Archuleta on Thursday, January 26, 2017.

On December 5, 2012, Roger Louis Archuleta and his roommate in the housing facility left Archuleta’s apartment around 7 a.m., as captured by surveillance video. The roommate returned home around noon, and Archuleta returned later, remaining home the rest of the night. That night, other residents of the housing facility reported hearing loud noises. Around 4 a.m. on December 6, the surveillance video showed Archuleta dragging his roommate’s body down the hall, then back to his room. Archuleta then informed a residential aide at the housing facility that he had a body in his apartment that needed to be removed.

When the police arrived at defendant’s apartment, they found the deceased victim lying just inside the door, covered by a blanket. The police observed the victim had blood on him and appeared to have been beaten. They also found defendant seated on a mattress in the living room, apparently highly intoxicated and with a substantial amount of dried blood on his face and hands. There was blood spattered on all four walls in the apartment bedroom, which the prosecution’s expert testified was consistent with an altercation between two people.

The police took defendant to the police station; advised him of his Miranda rights under and interviewed him. They also took pictures of him, collected his clothing, and took swabs of suspected blood. Defendant ended the interview at the police station by indicating he wanted to speak to an attorney. Without obtaining a court order or defendant’s consent, police took defendant to the hospital, where three samples of his blood were drawn at one hour intervals. The court later held that the blood draw was unconstitutional; that holding was not challenged on appeal. Defendant was charged with second degree murder and first degree assault, and the jury found him guilty as charged.

Defendant appealed, arguing his convictions must be reversed because under the fruit of the poisonous tree doctrine, the trial court erred by failing to suppress statements he made in the course of his transport to and detention at the hospital for his blood draws, and also because there were errors in the jury instructions and the trial court improperly elicited and admitted testimony from the prosecution’s blood spatter analysis expert that his conclusions were independently verified. The court of appeals addressed the fruit of the poisonous tree doctrine argument first.

The court found no error in the trial court’s admission of defendant’s statements to police officers while at the hospital and in transit. Defendant had made numerous rambling statements to the police while at the hospital, including several comments that seemed to relate to the victim’s death. At one point, the officer left but a recorder was left on in the room. Defendant was heard saying, “Shit. [Victim’s name]. You’re dead, you’re dead brother. I killed you.” The trial court held that the fruit of the poisonous tree was the result of the blood draw, not the statements. The court noted that it was entirely speculative whether defendant would have continued to make statements while at the police station, and the vast majority of his statements were spontaneous. The court of appeals agreed, noting that the exclusionary rule was properly applied to the blood draw results, and that the statements were not fruit of the poisonous tree. The court found that defendant failed to establish a causal connection between the illegality of the warrantless blood draws and the challenged statements.

Defendant also contended the jury instruction defining “cause” misstated the law because it instructed the jury that the victim’s preexisting physical condition was not a defense to the murder and assault charges. He argues that while a victim’s preexisting conditions generally do not impact the causation element, they are relevant to the culpable mental state. The court of appeals disagreed. The court held that because the trial court’s instruction that “it is no defense that the victim was suffering from preexisting physical ailments, illnesses, injuries, conditions or infirmities” was not a stand-alone instruction but rather was embedded into the definition of “cause,” there was no error. The court noted that it is no defense that a victim who had been in good physical condition would have survived an attack; a defendant cannot be excused from guilt and punishment because his victim was weak and could not survive the torture he administered. The court rejected defendant’s contention that the instruction misstated the law.

The defendant also asserted that the trial court plainly erred by giving an erroneous elemental instruction for first degree assault and admitting hearsay testimony from the prosecution’s blood spatter analysis expert. The court of appeals again disagreed, finding that the instruction tracked the statutory language and was therefore sufficient, and the blood spatter analyst’s testimony that someone else always reviews his work was a general statement that did not rise to the level of plain error.

The court of appeals affirmed defendant’s convictions.

HB 17-1039: Making Confidential All Communications in Restorative Justice

On January 11, 2017, Rep. Pete Lee and Sen. Daniel Kagan introduced HB 17-1039, “Concerning Communication Issues Related to Restorative Justice.”

The bill makes all communications during the restorative justice process made by all participants in the process confidential unless:

  • All participants in the process, including the restorative justice program or restorative justice facilitator, consent in writing to waive confidentiality of specific communications for a stated purpose;
  • An offender or other participant commits a chargeable offense as part of a restorative justice or restorative practice communication;
  • A report is made by a statutory mandatory reporter of behavior that threatens the safety of a child under 18 years of age; or
  • Disclosure of a communication is necessary and relevant to an action alleging willful or wanton misconduct of a restorative justice facilitator or organization.

The bill requires the restorative justice program or facilitator to disclose those exceptions and any other applicable exceptions prior to starting the process.

The bill requires the court, during the arraignment advisement, to inform the defendant that if convicted the sentence may include restorative justice practices. The bill allows the district attorney to include restorative justice practices as part of a recommended sentence in a plea bargain. The bill directs that the presentence report must include an assessment of the defendant’s suitability for restorative justice practices.

The bill was introduced in the House and assigned to the Judiciary Committee.

Colorado Supreme Court: Amendment 64 Deprives State of Power to Prosecute Crimes of Possession of Small Amounts of Marijuana

The Colorado Supreme Court issued its opinion in Russell v. People on Tuesday, January 17, 2017.

Expert Testimony—Amendment 64—Marijuana Legalization—Constitutional Amendment.

The Colorado Supreme Court considered whether a police officer’s testimony that defendant was under the influence of methamphetamine was properly admitted as lay testimony or should have been qualified as expert testimony. Because any error in admitting the officer’s testimony as lay testimony was harmless given the otherwise overwhelming evidence, the court declined to answer whether the trial court erred in admitting the testimony. The court also considered whether Amendment 64 deprived the state of the power to continue to prosecute cases where there was a conviction for possession of less than one ounce of marijuana pending on direct appeal when the amendment became effective. The court concluded that under People v. Boyd, 2017 CO 2, Amendment 64 nullified the state’s authority to continue to prosecute petitioner/cross-respondent during her appeal because Amendment 64 superseded the underlying statutory authority for the prosecution. Accordingly, the court affirmed the Colorado Court of Appeals’ judgment.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Amendment 64 Deprived State of Power to Continue Prosecutions of Small Amount Marijuana Offenses

The Colorado Supreme Court issued its opinion in People v. Wolf on Tuesday, January 17, 2017.

Amendment 64—Marijuana Legalization—Constitutional Amendment.

The Colorado Supreme Court considered whether Amendment 64 deprived the state of the power to continue to prosecute individuals for possession of less than one ounce of marijuana after Amendment 64 became effective. The court concluded that under People v. Boyd, 2017 CO 2, Amendment 64 nullified the state’s authority to continue to prosecute respondent at his jury trial because Amendment 64 superseded the underlying statutory authority for the prosecution. Accordingly, the court affirmed the Colorado Court of Appeals’ judgment vacating respondent’s conviction and sentence.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: “Knowingly” Element Should Have Been Offset but Error Harmless

The Colorado Court of Appeals issued its opinion in People v. Garcia on Thursday, January 12, 2017.

Juvenal Onel Garcia was married to the victim, but in August 2010 a protective order issued against Garcia concerning the victim. However, on occasion in April 2012, he would go to the victim’s house to watch their children at her request. One night, he was late, and when he arrived the victim told him to leave because he had been drinking. He took her car keys and left. The victim eventually reported her car stolen after he did not return. When he came back, they physically struggled. According to the victim, Garcia then tried to take her clothes off and force intercourse, but she fought him off and he immediately masturbated. They resumed struggling, he prevented her from calling 911, and he left, again taking her car. The victim called police and was taken to the hospital.

Garcia was charged with first degree burglary, attempted sexual assault, unlawful sexual contact, third degree assault, violation of a protection order, and obstruction of telephone service, as well as attempted sexual assault and unlawful sexual contact. He was designated a sexually violent predator (SVP). Garcia appealed, arguing first that the trial court erred in not applying “knowingly” to every element of the offense of sexual assault, including the “caused submission” element. The court of appeals found no error. The jury instruction in this case was based on the model jury instruction then in effect, and although the model jury instruction was later amended to offset the word “knowingly,” the court concluded any error in the failure to offset “knowingly” was not obvious. The court of appeals found the trial court did not commit plain error and affirmed.

Garcia next contended his sentences for class 4 attempted sexual assault and class 4 unlawful sexual contact should be vacated because the jury was not instructed and therefore did not find that Garcia knowingly used force or submission, so elevation of the offenses to a higher class of felony was not warranted. After evaluating the instructions under a plain error standard, the court of appeals found none. The court found that a published opinion directly addressed and refuted Garcia’s contention, so there was no error in the trial court’s instructions.

Garcia also argued that the trial court erred in its interrogatory on force related to sexual assault because the trial court did not define “force,” “threat,” or “intimidation,” which are narrower in the legislative context than in ordinary use. The court of appeals again rejected his argument. The court again looked to prior case law that had addressed the issue, and affirmed Garcia’s convictions and sentences.

Garcia argued that the mens rea element for violation of a protection order was not proved. The court of appeals disagreed, finding there was plenty of evidence to show that Garcia knew the protective order was still in place and he was not supposed to contact the victim. The court affirmed this sentence and conviction also.

Finally, Garcia contended the trial court erred in designating him a sexually violent predator (SVP) because he neither established nor promoted his relationship with the victim for purposes of sexual victimization, as required by the statute. The court evaluated two supreme court cases that had not been decided at the time of Garcia’s conviction and remanded for reconsideration in light of the two cases.

Garcia’s sentences and convictions were affirmed, and the court of appeals remanded for consideration of the SVP designation in light of new precedent.

Colorado Court of Appeals: District Court Did Not Err in Summarily Denying Defendant’s Petition for Postconviction Relief

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

Sexual Assault on a Child—Ineffective Assistance of Counsel.

Police discovered child pornography on Phipps’s computer by using LimeWire, a peer-to-peer file sharing application. Phipps pleaded guilty to sexual assault on a child and was sentenced to an indeterminate prison term of 17 years to life. He sought postconviction relief under Crim. P. 35(c), claiming ineffective assistance of counsel. The district court denied the motion without a hearing.

On appeal, Phipps asserted that the district court was required to hold a hearing on his motion and erred in rejecting his claims of ineffective assistance of counsel. A district court may deny a post-conviction motion without a hearing where allegations are bare and conclusory, directly refuted by the record, or, even if proven true, would fail to establish one of the prongs of the Strickland test to determine whether there has been ineffective assistance of counsel. To prevail on an ineffective assistance of counsel claim, a defendant must establish that (1) counsel’s performance was constitutionally deficient and (2) the deficient performance resulted in prejudice to the defendant. To satisfy the prejudice prong, a defendant must show that there is a reasonable probability that “but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.”

Phipps argued that his counsel should have challenged the validity of the initial, remote search of his computer. Phipps claimed that he did not know that the files stored on his computer were publicly accessible through LimeWire. Consistent with other courts that have considered the matter, the Colorado Court of Appeals held that Phipps had no reasonable expectation of privacy in the files he made available for public viewing through LimeWire. Thus his counsel’s failure to challenge the search on Fourth Amendment grounds, even if deficient, could not have constituted Strickland prejudice.

Phipps also argued that his counsel was ineffective when he waived the preliminary hearing. This decision was a matter of strategy. In addition, the evidence of Phipps’s guilt was overwhelming. The waiver of the preliminary hearing could not have constituted ineffective assistance of counsel.

Phipps further argued that his counsel failed to investigate several aspects of his case. Even if this claim were true, it fails the prejudice test. Phipps admitted to possessing child pornography on his computer and he produced a video of him sexually assaulting his underage stepdaughter.

Phipps next contended that his counsel misadvised or failed to advise him of the consequences of his guilty plea. The court carefully examined each of Phipps’s contentions in this regard and found them all without merit.

Lastly, Phipps argued that the district court “redacted” his Crim. P. 35(c) motion and the transcript of his sentencing hearing was falsified. The court found no evidence to support these arguments.

The order was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Statements in Police Interviews Were Not Voluntary and Should Not Have Been Admitted

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

Statements—Police Interviews—Involuntary.

In this murder case, the prosecution presented evidence that the victim was shot by two people. The primary issue at trial was the identity of the second shooter. The shooting occurred inside the home of codefendant Malory (Popeye), who was the first shooter. Springsted was present during the incident. Within an hour of the shooting, Springsted was interviewed by police in a police interview room. Over the next four days, the police interviewed Springsted five more times over the course of more than 11 hours. While some evidence implicated Springsted as the second shooter, the serological evidence implicated only Popeye as a shooter. Springsted was convicted of one count of first degree murder, one count of conspiracy to commit first degree murder, and two counts of violent crime.

On appeal, Springsted challenged the court’s admission of his statements from the police interviews, alleging that they were obtained involuntarily. When a defendant seeks to suppress statements as involuntary, the prosecution must prove by a preponderance of the evidence that the statements resulted from the maker’s free and unconstrained choice. After a careful review of the totality of the circumstances of the more than 11 hours of videotape, the Colorado Court of Appeals determined that the statements from the first two interviews were voluntary and admissible. However, Springsted’s statements in the remaining interviews were involuntary and should have been suppressed. Because there was a reasonable possibility that the statements from these interviews contributed to Springsted’s convictions, the error was not harmless.

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

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Police Department Can Be “Victim” For Restitution Purposes

The Colorado Court of Appeals issued its opinion in People v. Oliver on Thursday, December 15, 2016.

Murder—Officer—Restitution—Victim—Workers’ Compensation Benefits—Beneficiaries.

During an altercation at City Park, defendant pulled a gun and fired it in the direction of a group of people. One of the shots struck a nearby Denver police officer in the head and killed her. Defendant pleaded guilty to second degree murder. The district court sentenced him and ordered him to pay restitution to the Risk Management Department of the City and County of Denver (Department) in the amount of $365,565.07 for medical costs and survivor benefits resulting from the officer’s death. Defendant filed a Crim. P. 35(a) motion to correct the award as an illegal sentence. After a hearing, the court denied the motion and reaffirmed the award.

On appeal, defendant contended that the Department was not a “victim” for purposes of restitution. The Denver Police Department (DPD) is an agency of the City and County of Denver. The Department acted as the workers’ compensation insurance company for the DPD and the City and County of Denver as a whole. Because the Department was an insurer who had a contractual relationship with the deceased officer, it fits squarely within the definition of a victim insurer under the restitution statute. The district court did not err in concluding that the Department was a victim of defendant’s crime for purposes of restitution.

Alternatively, defendant contended that even if the Department was a victim under the restitution statute, the amount of restitution ordered by the district court was not authorized by law because the death benefits constituted “loss of future earnings,” which is specifically excluded from the statutory definition of restitution. The death benefits paid by the Department were calculated using the deceased employee’s average weekly wage but are not equivalent to “loss of future wages.” Rather, the payments were more properly considered the Department’s “out-of-pocket expenses” and “anticipated future expenses,” both of which are included in the statutory definition of restitution. Accordingly, the district court did not err in awarding the restitution.

The order was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Two Different Sentence Enhancements Can Be Applied Together

The Colorado Supreme Court issued its opinion in People v. Adams on Monday, November 21, 2016.

Curtis Adams was found guilty of assaulting a corrections officer. Because he committed that crime while serving another sentence, the district court imposed an aggravated sentence of 12 years to be served consecutively with Adams’ other remaining sentences. Thus, Adams’ sentence was enhanced twice: once by the aggravated range and once by required consecutive sentencing.

Adams appealed, and the court of appeals concluded Adams was not subject to the term of years sentence. The court of appeals followed a decision of a different panel and determined that the aggravated range did not apply because the second degree assault statute contained its own enhancement—the requirement for consecutive sentencing. The court of appeals affirmed Adams’ conviction but reversed his sentence.

The People appealed, contending the trial court was required to apply both enhancements by the statutory language. The supreme court analyzed the statutory text and determined that because the different aspects of the sentence could be applied together without conflict, both applied. Adams argued that the consecutive sentencing requirement applies to the exclusion of the aggravated range, but the supreme court disagreed.

The supreme court reversed the part of the court of appeals’ decision vacating the sentence and remanded for further proceedings consistent with its opinion.

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

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

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

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

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

The order was affirmed.

Summary provided courtesy of The Colorado Lawyer.

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

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

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

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

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

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

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

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

The five-year sentence was affirmed.

Summary provided courtesy of The Colorado Lawyer.

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

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

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

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

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

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

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

The order was reversed and the case was remanded.

Summary provided courtesy of The Colorado Lawyer.