April 20, 2014

Colorado Supreme Court: Defendant Need Not be Expressly Charged with Responsibility Over Child to Occupy Position of Trust

The Colorado Court of Appeals issued its opinion in People v. Roggow on Monday, December 9, 2013.

Criminal Acts Against Children—Status as to Child—Position of Trust.

The Supreme Court considered whether there was sufficient evidence for the jury to convict a defendant of sexual assault on a child by one in a position of trust, in violation of CRS § 18-3-405.3, where the defendant was not expressly charged with a particular duty or responsibility over the child at the time of the unlawful act. The Court held that for the purposes of § 18-3-405.3, a defendant need not be expressly charged with a particular duty or responsibility over the child at the time of the unlawful act to occupy a position of trust. Rather, a defendant may occupy a position of trust with respect to the victim where an existing relationship or other conduct or circumstances establishes that the defendant is entrusted with special access to the child victim.

The Court ruled that the evidence was sufficient for a jury to conclude that defendant was in a position of trust with respect to the victim at the time of the unlawful acts. Therefore, the holding of the court of appeals was reversed and the case was remanded with directions to reinstate the conviction.

Summary and full case available here.

Colorado Supreme Court: Under Totality of Circumstances, Police Conduct in Custodial Interrogation Was Not Coercive

The Colorado Supreme Court issued its opinion in People v. Zadran on Monday, December 9, 2013.

CAR 4.1 Interlocutory Appeal in Criminal Case—Suppression of Defendant’s Statements as Involuntary.

The Supreme Court held that, in a suppression hearing, when a defendant makes a prima facie evidentiary showing of involuntariness, the prosecution bears the burden, by a preponderance of the evidence, of establishing that the statements were voluntary under the totality of the circumstances. Coercive physical or psychological conduct by the government renders an otherwise voluntary statement involuntary if the conduct plays a significant role in inducing the statement.

Applying the totality of the circumstances standard to defendant’s statements in this case, the Supreme Court held that defendant’s statements were voluntary and there was no coercive police conduct. The trial court’s suppression order was reversed.

Summary and full case available here.

Colorado Supreme Court: During Custodial Interrogation, Defendant Improperly Coerced to Testify by Threats of Deportation

The Colorado Supreme Court issued its opinion in People v. Ramadon on Monday, December 9, 2013.

CAR 4.1 Interlocutory Appeal in Criminal Case—Suppression of Defendant’s Statements as Involuntary.

The Supreme Court held that, in a suppression hearing, when a defendant makes a prima facie evidentiary showing of involuntariness, the prosecution bears the burden, by a preponderance of the evidence, of establishing that the statements were voluntary under the totality of the circumstances. Coercive physical or psychological conduct by the government renders an otherwise voluntary statement involuntary if the conduct plays a significant role in inducing the statement.

In this case, the trial court considered the voluntariness of defendant’s statements under the totality of the circumstances and concluded they were involuntary after the forty-two-minute mark of the interview. The Supreme Court held that the record supported the trial court’s finding that police conduct during the custodial interrogation played a significant role in inducing incriminatory statements defendant made starting at minute fifty-four. Therefore, defendant’s statements must be suppressed after minute fifty-four. The suppression order was affirmed in part and reversed in part, and the case was returned to the trial court for further proceedings.

Summary and full case available here.

Colorado Court of Appeals: Remand to Trial Court to Determine if Sentence Disproportionate to Severity of Defendant’s Crimes

The Colorado Court of Appeals issued its opinion in People v. Hargrove on Thursday, December 5, 2013.

Habitual Criminal Statute—Abbreviated Proportionality Review—Gross Disproportionality—Extended Proportionality Review.

The People appealed the trial court’s determination that a forty-eight-year prison sentence under the habitual criminal statute would be grossly disproportionate to defendant’s crimes. The order was reversed and the case was remanded.

The People charged defendant with felony escape after his parole officer could not locate him when the battery on the GPS monitor on his ankle bracelet had not been charged. The People also charged defendant with four habitual criminal counts based on his previous felony convictions for sexual assault—force, criminal impersonation, failing to register as a sex offender, and possession of a schedule II controlled substance. The jury found defendant guilty of escape, and the trial court imposed a sentence of twelve years in prison.

The People contended that the trial court erred by concluding that a forty-eight-year prison sentence under the habitual criminal statute would be grossly disproportionate to defendant’s crimes. The People also contended that, even if the trial court’s abbreviated proportionality review raised an inference of gross disproportionality, the trial court was required, but failed, to conduct an extended proportionality review. Because the Court of Appeals could not determine whether a forty-eight-year prison sentence gave rise to an inference of gross disproportionality based on the record, it reversed the order and remanded the case to the trial court for further factual development of the record as to three of defendant’s four previous felony convictions.

The trial court was directed to conduct an abbreviated proportionality review after further factual development. If that abbreviated proportionality review gives rise to an inference of gross disproportionality, the trial court must conduct an extended proportionality review. If the abbreviated proportionality review does not give rise to an inference of gross disproportionality, the trial court must sentence defendant to forty-eight years in prison under the habitual criminal statute.

Summary and full case available here.

Colorado Court of Appeals: Trial Court Improperly Denied Challenges to Potential Jurors Based on Silence During Rehabilitation

The Colorado Court of Appeals issued its opinion in People v. Clemens on Thursday, December 5, 2013.

Assault—Jury—Challenge for Cause—Apparent Authority Doctrine—Warrant.

Defendant appealed the judgment of conviction entered on a jury verdict finding him guilty of second-degree assault of a female victim and third-degree assault of a male bystander. The judgment was reversed and the case was remanded for a new trial.

Defendant argued that the trial court abused its discretion in denying defendant’s challenges for cause to three prospective jurors. The initial statements by the three jurors that they would hold it against defendant if he did not testify established sufficient grounds to challenge them for cause. The trial court responded to the jurors’ statements with a lengthy admonishment and then asked the entire venire whether it could apply the law as explained. The three jurors remained silent. Because a juror’s silence following a question or questions to the entire panel does not constitute sufficient rehabilitation, the trial court abused its discretion in denying defendant’s challenges for cause.

Defendant also contended that the trial court erred in denying his motion to suppress. Without obtaining a warrant, the officers immediately and forcefully entered defendant’s house, which he shared with the female victim. However, there was sufficient evidence admitted at the suppression hearing supporting the trial court’s finding that the officers reasonably believed the female victim had authority to consent to the entry. Under the apparent authority doctrine, the officers properly entered defendant’s house without a warrant. Therefore, the trial court did not err in denying defendant’s motion to suppress.

Summary and full case available here.

Colorado Court of Appeals: Failure to Provide Evidence Tending to Negate Defendant’s Guilt Violated Crim. P. 16 Disclosure Requirement

The Colorado Court of Appeals issued its opinion in People v. Bueno on Thursday, November 21, 2013.

Newly Discovered Evidence—New Trial—Crim.P. 16(I)(a)(2)—Mandatory Disclosures—Crim.P. 33(c)—Time Barred—Sentencing.

The People appealed the trial court’s order granting defendant a new trial based on newly discovered evidence. The order was affirmed.

Defendant was charged with, tried, and convicted of first-degree murder for the death of fellow inmate Jeffrey Heird at the Limon Correctional Facility (LCF). Approximately fifteen months after defendant’s trial but before sentencing, the prosecution provided discovery of a letter (ABN letter) and report (Smelser report) to the defense, both of which were exculpatory to defendant. The ABN letter was found by Nurse Linda Deatrich in the medical “kite” box at LCF approximately thirty-five minutes after Heird’s body was discovered in his cell. Nurse Deatrich filed an employee incident report about the discovery of the ABN letter (Deatrich report). It was undisputed that copies of the ABN letter and the Deatrich report were contained in the working file of Deputy District Attorney Robert Watson, the original prosecutor working on defendant’s case. Watson had this information sometime in 2004, but did not provide it to defendant until July 2009. Defendant filed a motion for a new trial based on Crim.P. 33(c), as well as the prosecution’s violation of Crim.P. 16 and Brady v. Maryland, 373 U.S. 83 (1963). The trial court granted the motion.

On appeal, the People contended that the trial court erred in granting defendant a new trial. The prosecution had copies of the ABN letter and the Deatrich report in Watson’s working file, and the information tended to negate defendant’s guilt; therefore, it was incumbent on the prosecution to provide this information to defendant. Failure to do so violated the mandatory disclosure requirement of Crim.P. 16(I)(a)(2) and Brady. Further, because defendant was prejudiced by the non-disclosure—the evidence would likely bring about an acquittal—the trial court did not abuse its discretion in granting defendant a new trial pursuant to Crim.P. 33(c).

The People also contended that the trial court abused its discretion by failing to address their argument that defendant’s motion for a new trial was time-barred. The term “entry of judgment” in Crim.P. 33(c) means more than a “verdict or finding of guilt” and must include sentencing of the defendant. Accordingly, as a matter of law, defendant’s Crim.P. 33(c) motion was timely because he had not been sentenced at the time he filed his motion.

Summary and full case available here.

Colorado Supreme Court: Facts and Circumstances Created Reasonable Suspicion so Evidence from Vehicle Search Admissible

The Colorado Supreme Court issued its opinion in People v. Crum on Tuesday, November 12, 2013.

Vehicular Search Incident to Arrest—Reasonable Articulable Suspicion—Reasonable Searches and Seizures—Suppression of Evidence.

The Supreme Court held that where a defendant is seen retrieving controlled substances packaged in a manner consistent with the intent to distribute from a vehicle parked late at night in an area known for high volumes of drug activity, and where the defendant attempts to conceal the substances, the facts and circumstances give rise to a reasonable articulable suspicion that the vehicle might contain more evidence of possession of a controlled substance. Under such circumstances, police officers may search the vehicle incident to the defendant’s arrest for possession of a controlled substance. The Court therefore reversed the order of the trial court suppressing evidence discovered during the search.

Summary and full case available here.

Colorado Court of Appeals: Power of Attorney Document Did Not Authorize Agent to Liquidate Principal’s Assets

The Colorado Court of Appeals issued its opinion in People v. Stell on November 7, 2013.

Power of Attorney—Fiduciary Duty—Without Authorization—Theft by Deception.

The People appealed the dismissal of counts one, two, and four, as well as part of count three, of the indictment against defendant Geoffrey Hunt Stell. The Court of Appeals reversed the order and remanded the case with directions.

The victim executed a power of attorney (POA) naming Stell, who is the victim’s son, as his agent. The POA gave Stell broad general powers over the victim’s property. According to the indictment, Stell had liquidated all of the victim’s property for his own personal use. Stell filed a motion to dismiss counts one through four of the indictment, asserting that he had the legal authority to spend, transfer, and liquidate the assets in question pursuant to the POA. The trial court granted the motion.

On appeal, the People contended that the district court erred in concluding, as a matter of law, that the POA authorized Stell to liquidate all of the victim’s assets and to use them for his own benefit. Although the POA provided broad general powers, several provisions of the POA suggest the victim’s intent that Stell would act on the victim’s behalf, as opposed to in his own interest. Therefore, proof of the “without authorization” element of the theft charges at issue should have been given to the jury to decide.

The People further contended that regardless of whether Stell acted without authorization, the district court erred in dismissing count four of the indictment because that count separately alleged theft by deception, and the evidence supports such a charge. Even if Stell was authorized to transfer the victim’s assets to a trust, he still could have committed theft by deception if he fraudulently induced the victim to sign the trust agreement that allowed Stell to facilitate a theft. Therefore, the evidence could potentially have supported such a charge, regardless of any authorization under the POA. Accordingly, the district court erred in dismissing count four.

Summary and full case available here.

Burying the Body—Dismantling the Corpus Delicti Rule and Adopting the Trustworthiness Standard (Part 2)

Evig_SamuelBy Samuel A. Evig

Editor’s Note: This is Part 2 of a two-part series. Part 1 is available hereThe article originally appeared in the November 2013 issue of The Colorado Lawyer.

Evidence Corroborating a Confession

The LaRosa Court articulated three distinct ways in which evidence can corroborate a confession, and these three ways seem only to confound the philosophical question of whether trustworthiness is an interpretation of corpus delicti or replacement for it. Further, although the Court articulated three ways to corroborate confessions, it provided no examples or guidance to illustrate those methods. Trial courts, at least initially, must rely on case law from other jurisdictions to guide their rulings. Although the opinion provides little distinct guidance, analyzing the three methods helps to sketch the outlines of the standard.

The first method the Court articulated is when facts provided at trial “corroborate facts contained in the confession.”[1] Under this scenario, the visitor logs provided by the prosecution in LaRosa would help to corroborate the confession.[2] Those logs corroborate facts contained in the confession—LaRosa’s statement about where and when the offense happened. Cases interpreting the trustworthiness doctrine do not require independent corroboration for each fact articulated in a confession.[3] All that is required is that some facts corroborate some parts of the confession.

U.S. v. Kirk[4] illustrates this method of corroborating a confession. There, Kirk confessed to trading drugs for a handgun, and was found in possession of a handgun.[5] Authorities charged him with distributing a controlled substance in relation to the incident where he obtained a handgun.[6] No witness testified about any of the facts of that sale, except the witnesses presenting Kirk’s confessions. The non-confession evidence offered by the prosecution (possession of a gun, possession of drugs, Kirk’s prior history of drug distribution) would not, by themselves, have been sufficient to convict him of drug distribution.

Yet the appellate court upheld Kirk’s conviction, relying on the “detailed nature” of Kirk’s confessions, evidence showing Kirk had significant prior involvement in drug trafficking, the physical evidence near him (a gun, drugs, and drug paraphernalia), and a second confession to a cellmate.[7] The court noted, in terms of the necessary evidentiary standard, that the “evidence need not be sufficient, on its own, to establish the body of the offense beyond a reasonable doubt, or even by a preponderance of the evidence.”[8] In the Kirk case, the finding of the gun (alleged proceeds from an earlier drug transaction), along with the other factors, provided sufficient corroboration.[9]

The second way to corroborate the confession, according to LaRosa, is for the prosecution to “provide facts that establish the crime which corroborate facts contained in the confession.”[10] Although this method sounds like the first, it applies in situations where the prosecution proves the existence of a crime, but has to rely on the confession to prove a key element of it—such as the identity of the perpetrator. One way to distinguish these two methods is that the first uses corroboration to prove a crime occurred, while the second uses corroboration to show who committed a crime.

An example of this method of corroboration comes from Fontenot v. State.[11]There, authorities accused Fontenot of a robbery that turned into a kidnapping and first-degree murder.[12] Fontenot made incriminating statements to a friend and fellow inmate that fell short of outright confessions but that implicated him, and he made a detailed confession to police admitting involvement in the kidnapping and robbery.[13] His confession to police implicated a third party as the actual killer, but that third party was later exonerated.[14] At trial, independent, non-confession evidence proved a crime happened. The victim, clearly, had been murdered; yet none of the non-confession evidence proved Fontenot’s involvement.

The court, applying a trustworthiness standard, analyzed evidence at trial and affirmed the conviction. The court first found the statements he made to a cellmate and to a friend to be of a different character than his outright confession to police—and these statements buttressed the confession to police.[15] In addition, the court considered the similarities between the non-confession evidence and the confession evidence. Among other similarities, the court noted that witnesses’ descriptions of the abductor’s truck matched what Fontenot described, that the amount taken during the robbery roughly matched the amount Fontenot admitted he stole, and that descriptions of the clothing the victim wore during the abduction matched the description Fontenot gave of the robbery victim’s clothing.[16] Although the case contained conflicting evidence, the court found all that was necessary was that the confession be corroborated in some manner.[17] Because facts presented at trial corroborated specific facts in the confession; the confession was trustworthy and served to prove Fontenot’s involvement in the crime.

The third way to corroborate a confession is when “facts under which the confession was made show that the confession is trustworthy or reliable.”[18] It is the LaRosa Court’s inclusion of this third method that makes the case unique, and that kindles the debate about whether the Court was jettisoning the corpus delecti rule or merely interpreting it. Deciding whether a confession is itself sufficiently reliable to be trustworthy involves a host of factors, many of which apply to the more common but related problem of deciding when to suppress a confession as involuntary under the Fifth Amendment.[19]

First, a court may consider the person to whom the defendant confessed, because a confession to a friend or family member may not carry the same concerns of coercion or overreaching as a confession to police.[20] Second, the circumstances prompting the confession may be relevant—because some circumstances provide a very clear motive to falsely confess.[21] When the confession occurred in relation to when the suspect became aware of an investigation also can be important, because the lack of an investigation eliminates the possibility of police coercion.[22] Some courts even consider whether the suspect confessed more than one time,[23] although other courts disagree with this reasoning.[24] Still other courts look for information within the confession that is not available to the public or that shows an independent source of knowledge.[25]

As the LaRosa Court noted, “[t]he corroborating facts may be of any sort whatever, provided only that they tend to produce a confidence in the truth of the confession.”[26] If Colorado follows case law from other jurisdictions, almost anything corroborating the confession can be used to support it. The question then becomes exactly what standard of proof is necessary for the corroboration and how does a court determine what is sufficient corroboration.

The Evidentiary Standards

The question of what level the corroboration must meet to support a confession-based conviction is at the heart of the argument between the LaRosa dissenters and the majority. Neither the dissent nor the majority argues that the trustworthiness standard affects the admission of confessions. Instead, the standard presents a question of sufficiency to support conviction.[27] Both the dissent and the majority understand that the trial court—as opposed to a jury—makes a decision regarding the legal sufficiency of the evidence. Where the parties disagree is whether the standard is incorporated into Colorado’s existing sufficiency of the evidence law or is something new. Understanding the dissent’s position on this issue is a useful way to understand the application of the new rule.

First, the dissent argues the majority misinterpreted the Opper series of cases because those cases did not create a new standard but only imposed a way of interpreting the common-law rule of corpus delicti for federal courts.[28] The dissent argues the trustworthiness standard is the kind of “open-ended balancing test exhaustively disparaged and ultimately rejected as constitutionally inadequate by the Supreme Court.”[29] Besides being too open-ended, the dissent asserts the “substantial evidence standard” overruled corpus delicti and that LaRosa should have been decided on this basis alone.[30]

The “substantial evidence standard” mentioned by the dissent is set forth in Crim.P. 29. It permits the defense to move for judgment of acquittal once the prosecution rests.[31] The test for such motions is articulated in People v. Bennett.[32] Under Bennett, the trial court must consider whether

the relevant evidence, both direct and circumstantial, when viewed as a whole and in the light most favorable to the prosecution, is substantial and sufficient to support a conclusion by a reasonable mind that the defendant is guilty of the charge beyond a reasonable doubt.[33]

The test requires the prosecution to have provided evidence, sufficient to convict, for each element of the crime.

The LaRosa dissent argues that the substantial evidence standard, adopted by our rules of criminal procedure, implicitly overturned the common law of corpus delicti.[34] The argument is that Crim.P. 29 now requires all the evidence, including stand-alone confessions, to be viewed in the light most favorable to the prosecution, that the rule has long eliminated any distinction between direct and circumstantial evidence, and thus a confession standing alone often will be sufficient to defeat a motion for judgment of acquittal. That is, the jury should decide whether a confession in any particular case is sufficient to prove guilt beyond a reasonable doubt.

The majority does not go so far. Instead, it states that the trustworthiness standard is to be treated “like a rule affecting the sufficiency of the evidence to be analyzed by the court following a motion for judgment of acquittal.”[35] The key difference, according to the majority, is that the trustworthiness standard focuses not on the elements of the crime, but only on the evidence corroborating the confession itself.[36] Thus, it serves a different purpose than the sufficiency of the evidence test.[37]

The majority did not articulate what should happen if a trustworthy confession is the sole piece of incriminating evidence. Based on the limited guidance in the opinion, if that confession is trustworthy, it should suffice to support a conviction (assuming it provides evidence for each material element of the crime). That seems to be the whole reason behind jettisoning the corpus delicti rule. Of course, the corollary to that reasoning is that if the confession is not trustworthy, and it is the sole piece of incriminating evidence, the majority would bless the trial court granting the motion for judgment of acquittal.

The dissent would not engage in a trustworthiness analysis at all, and instead simply would apply the substantial evidence standard to reach a decision. Under the dissent’s position, an uncorroborated confession must be viewed in the light most favorable to the prosecution—that is, it must be viewed as trustworthy—and in that light would never justify a judgment of acquittal.

Guidance for Practitioners

Practitioners first need to be aware of when the trustworthiness doctrine applies. It does not apply to all cases with confessions; only cases where the primary piece of incriminatory evidence is a confession should be affected. Another way of recognizing affected cases is for attorneys to ask themselves whether the case has proof, other than the confession, which if true would be sufficient to sustain a conviction. In terms of typical fact patterns, attorneys should beware of inchoate crimes and crimes with silent victims (pre-verbal children, disabled persons, or deceased victims where the cause of death is at issue).

Practitioners need to recognize a second issue regarding whether the standard applies. That issue involves whether Colorado courts will find a difference between “admissions” and “confessions.”[38] Some courts, based on their reading of Opper, do not distinguish between admissions and confessions.[39] But other courts do.[40] Still other courts do not make the admission/confession distinction, but find some kinds of statements (pre-investigation statements for instance) so reliable as to require no corroborating evidence.[41] There are strong policy reasons to treat admissions and confessions made before a criminal investigation differently—namely, there should be no real concern about police overreaching when police are not yet involved. Where Colorado falls on the spectrum of admissions versus confessions or pre-investigation statements versus post-investigation statements is not at all clear.

If the confession is the primary piece of incriminating evidence, the practitioner needs to examine whether other facts corroborate facts within the confession, whether facts establish the crime the confession describes, and the specific facts surrounding the confession itself.[42] As noted above, case law from other jurisdictions is likely to be persuasive given the lack of Colorado law on this topic. The flexibility of the standard means almost anything is in play at this point to help corroborate the confession.

Conclusion

The fine lines defining this new doctrine have yet to be sketched by Colorado’s appellate courts. Some case law is necessary to fill in the cracks of this new construction. Until then, the one clear point from LaRosa is that it gives prosecutors a fighting chance in cases where victims cannot speak for themselves. For the defense bar, LaRosa signals a shift as well, because under corpus delicti, the defense could have a hearing before trial on the issue and, if successful, avoid trial altogether.[43] The current guidance in LaRosa indicates the proper time to apply the test is “like a rule affecting the sufficiency of the evidence to be analyzed by the court following a motion for judgment of acquittal.”[44] Further, proving that a confession is trustworthy is often much easier than proving the crime happened—which is something both the defense bar and prosecutors may need to consider in plea bargaining cases. Ultimately, the decision creates new issues for both prosecutors and defense attorneys in some of the most difficult cases for both sides.

Samuel A. Evig is a deputy district attorney in the 18th Judicial District—sevig@da18.state.co.us. The views expressed in this article are not necessarily those of the 18th Judicial District Attorney’s Office.

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[1] LaRosa, 293 P.3d at 578.

[2] The majority opinion in LaRosa does not explicitly decide whether the evidence presented would be enough to support his conviction under the trustworthiness standard. The majority does not address this issue because they decided application of the new standard would violate his due process rights. LaRosa, 293 P.3d at 578-79. Given that the Court found corpus delicti could operate to frustrate justice in crimes against very young children, and that the Court found this reasoning (along with other factors) sufficient to overturn the rule, it seems likely the Court would have upheld a trial court finding of sufficient corroboration. In fact, the Court cited both Robson and Meredith as support for cases in which convictions were barred by the rule in its discussion. Id. at 575. Those cases, for the most part, are factually indistinguishable from LaRosa. The implicit guidance of the opinion is that if the case were decided under the trustworthiness standard, LaRosa’s conviction would stand.

[3] Moran, supra note 3 at 852. Moran argues independent evidence can bolster “any aspect of the confession, including obvious and uncontroverted facts,” and thus the rule does not protect defendants as well as corpus delicti. See also U.S. v. Sterling, 555 F.3d 452 (5th Cir. 2009) (prosecution need not corroborate each part of a confession for it to support a conviction; rather, the corroboration of portions of the statement suffice to corroborate the statement as a whole); Heiges, 779 N.W.2d at 912-13 (analyzing a confession of a mother to drowning her newborn child under a Minnesota statute requiring corroboration of confessions and holding corroboration is not necessary for every part of the confession).

[4] U.S. v. Kirk, 528 F.3d 1002, 1106-07 (8th Cir. 2008).

[5] Id.

[6] Id. at 1110.

[7] Id. at 1112-13.

[8] Id. at 1111, citing U.S. v. Eagle, 515 F.3d 794, 807 (8th Cir. 2008) and Whiteside v. U.S., 346 F.2d 500, 505 (8th Cir. 1965).

[9] A similar case is Sterling, 555 F.3d at 456-57. There, a defendant confessed to acquiring a gun in a drug deal sometime before his arrest. The appellate court upheld the trial court’s decision to find the confession corroborated (even though defendant took the stand and recanted the confession) based on officers finding the gun, prior act evidence showing Sterling had dealt drugs, and the facts of the confession being specific enough to enhance its reliability.

[10] LaRosa, 293 P.3d at 578.

[11] See generally Fontenot II, 881 P.2d 69.

[12] Id. at 73-74, citing Fontenot v. State, 742 P.2d 31 (Okla.Cr. 1987) (Fontenot I).

[13] Id. at 76-78. The specific statements that were not to made police involved him telling a friend he knew the identity of the criminals and telling a cellmate that he “knew we’d get caught.”

[14] The confession he made to police was similar to a confession provided by a co-defendant named Ward. Both men attempted to cast blame for the actual homicide on a third person, Tidwell. Evidence conclusively proved that Tidwell had no involvement. See Fontenot I, 742 P.2d at 31; Fontenot II, 881 P.2d at 79. Here, the trustworthy confession was trustworthy in the general sense to prove Fontenot’s involvement in the crime, but obviously not trustworthy in all its details.

[15] Fontenot II, 881 P.2d at 78.

[16] Id. at 78-79.

[17] The inconsistencies were not minor. Fontenot stated the victim was stabbed, but forensics showed she was shot; the body was not found where he said it would be; and there was no evidence the body had been set on fire, as he claimed it had. Id. at 79. In addition, the person Fontenot implicated as a conspirator was exonerated. As noted by the Fontenot II Court, the standard does not require that there be “no inconsistencies whatsoever between the facts proven and the facts related in the confession.” Only when the inconsistencies “so overwhelm the similarities” is a confession rendered untrustworthy. Otherwise, the jury decides what weight to assign to the confession.

[18] LaRosa, 293 P.3d at 578.

[19] There is an expansive body of case law regarding the voluntariness of confessions. See generally Colorado v. Connelly, 479 U.S. 157 (1986); People v. Gennings, 808 P.2d 839 (Colo. 1991). Although the factors articulated in these cases and their progeny play into the trustworthiness analysis, practitioners must remember that trustworthiness is a sufficiency finding, as opposed to an admissibility finding. Further, although a confession may or may not be voluntary, that does not, by itself, render it trustworthy. See In re K.A., 60 A.3d 442.

[20] Heiges, 779 N.W.2d at 911; Fontenot II, 881 P.2d at 78.

[21] In re K.A., 60 A.3d 442 at 450.

[22] Heiges, 779 N.W.2d at 911.

[23] Tilley v. State, 963 P.2d 607, 612 (Ok.Crim.App. 1998) (upholding a murder conviction against a claim of lack of trustworthiness of confessions based, in part, on the finding that there were multiple confessions) superseded by statute on other grounds in Coddington v. State, 142 P.3d 437 (Ok.Crim.App. 2006).

[24] Weisser, 150 P.3d at 1051. Weisser specifically held that multiple confessions do not establish the trustworthiness of such statements. The factual context of the case involved a man confessing to molesting a child on several occasions, then claiming Huntington’s disease caused the confessions.

[25] Mauchley, 67 P.3d at 489.

[26] LaRosa, 293 P.3d at 577-78, citing Wigmore on Evidence § 2071 at 511.

[27] Id. at 578. The majority states, in a paragraph about whether the trustworthiness standard is a rule affecting admissibility or sufficiency, that “the better approach is to treat the trustworthiness standard, at least for procedural purposes, like a rule affecting the sufficiency of evidence to be analyzed by the court following a motion for judgment of acquittal.” The dissent agrees the test is one of sufficiency. See id. at 580-81. Other jurisdictions find the test to be one of admissibility. See Mauchley, 67 P.3d at 490.

[28] LaRosa, 293 P.3d at 580.

[29] Id., citing Crawford v. Washington, 541 U.S. 36, 68 (2004). In this argument, the dissent is not alone. See Moran, supra note 3 at 851-53. The majority even notes some state courts reject the very arguments the majority adopted. LaRosa, 293 P.3d at 579, citing People v. McMahan, 548 N.W.2d 199, 204 (Mich. 1996) and State v. Ray, 926 P.2d 904, 906 (Wash. 1996) (court applying the corpus delicti rule overturned the conviction of a defendant who molested his 3-year-old child).

[30] LaRosa, 293 P.3d at 581.

[31] This is, of course, a useful simplification, because Rule 29 lists several times at which the defense may raise the motion.

[32] People v. Bennett, 515 P.2d 466, 469 (Colo. 1973).

[33] Id.

[34] LaRosa, 293 P.3d at 581.

[35] Id. at 578.

[36] Id. at 576.

[37] Id.

[38] The term “confession” means, here, an “admission of guilt.” LaRosa, 293 P.3d at 576. The term “admission” means, here, a statement falling short of admitting guilt, but tending to prove guilt. A good example is Opper’s admission to providing loans (discussed in the text above). His statement did not admit guilt, but tended to prove guilt when viewed with the other evidence in the case.

[39] See State v. Trexler, 342 S.E.2d 878, 880 (N.C. 1986) (describing the difference between admissions and confessions and holding the trustworthiness standard applies to both).

[40] See Fontenot II, 881 P.2d at n.11. The court there found two admissions Fontenot made to be exempt from the rule, and recognized a conflict with Opper. See also Heiges, 779 N.W.2d at 908-13 (incriminatory admissions to non-police witnesses helped to sufficiently corroborate a confession to police).

[41] See U.S. v. Irving, 452 F.3d 110, 118 (2d Cir. 2006) (identifying statements made before the commission of a crime and co-conspirator statements as requiring no corroboration), citing Warszower v. U.S., 312 U.S. 342, 347 (1941) and U.S. v. Simmons, 923 F.2d 934, 954 (2d Cir. 1991).

[42] LaRosa, 293 P.3d at 578.

[43] See Robson, 80 P.3d at 913 (case dismissed after a hearing before trial).

[44] LaRosa, 293 P.3d at 578.

Burying the Body—Dismantling the Corpus Delicti Rule and Adopting the Trustworthiness Standard (Part 1)

Evig_SamuelBy Samuel A. Evig

Editor’s Note: This is Part 1 of a two-part series.

This article originally appeared in the November 2013 issue of The Colorado Lawyer.

In People v. LaRosa, announced in January 2013, the Colorado Supreme Court overturned Colorado’s corpus delicti rule.[1] That rule, generally speaking, requires evidence of guilt beyond a defendant’s confession. In jettisoning the corpus delicti rule, the Colorado Supreme Court negated more than 100 years of its own precedent.[2] The decision, in a sort of circle-of-life for legal rules, signals both the death of one doctrine and the beginning of a new one by setting forth a new standard of evidentiary sufficiency for cases where a confession is the major (if not only) piece of truly incriminating evidence. The new test, labeled by the Court as the “trustworthiness standard,”[3] comes from federal cases, and the opinion provides some limited guidance in its application for practitioners.[4] This article examines the opinion with an eye toward helping attorneys recognize situations in which the trustworthiness standard applies, and looks at how other courts have handled issues soon to confront Colorado practitioners.

The Facts of LaRosa

LaRosa confessed to his wife, mother, pastor, a police dispatcher, and a detective that days before he had molested his daughter in a private area of a recreation center by performing oral sex on her while he masturbated.[5] At the time of the offense, his daughter was only 2-and-a-half years old and therefore unable to recall the incident. Besides multiple confessions, the prosecution presented evidence that LaRosa appeared lucid and not mentally ill during his confessions; introduced visitor logs proving he had, indeed, visited the recreation center on the date in question; and provided photographs of the shower area where he said the offense occurred.[6] Both before and during the trial, the defense argued the corpus delicti rule operated to preclude his conviction.[7] The trial court rejected those arguments.

Although LaRosa took the stand in his own defense and explained why he confessed to something that did not happen, the jury nevertheless convicted him of all charges.[8] In an unpublished opinion, the Colorado Court of Appeals reversed the convictions based on the corpus delicti rule.[9] The prosecution petitioned for certiorari, requesting that the Colorado Supreme Court join a growing number of jurisdictions abandoning the corpus delicti rule, and the Court agreed to hear the case.

In a 5–2 decision written by Chief Justice Bender, in which Justices Eid and Coats dissented, the Court discarded the corpus delicti rule, and announced a new standard applicable to situations like LaRosa’s—where a confession is the principal piece of incriminating evidence. It also concluded that due process prevented applying the new standard to LaRosa’s case, and thus affirmed the reversal of his convictions.[10]

The Corpus Delicti Rule

The corpus delicti rule is the sort of classic legal rule lawyers love. It is Latin, and thus sounds impressive. It means literally (if still mysteriously) the “body of the crime.”[11] The rule requires the prosecution to prove the crime described in a confession actually happened—using evidence other than the confession itself.[12] The LaRosa majority found “little consensus” concerning the reasoning behind the rule,[13] but other sources indicate the original purpose of the rule was to prevent the conviction of people who confessed to nonexistent crimes.[14] Scholars cite cases involving the disappearance of a victim, the identification of a suspect, the suspect confessing, the subsequent conviction and execution (or near execution) of the suspect, and then the victim being found alive.[15] The driving force behind the rule is the recognition that false confessions sometimes happen, and it contains an implicit policy decision that the danger of a wrongful conviction outweighs the danger of a wrongful acquittal.

As surprising as it may seem, situations triggering the rule—a confession in the absence of any other incriminating evidence, either before or after it—do not appear to be all that unusual. In Colorado alone there are at least eight reported cases where the rule operated to overturn or preclude a confession-dependent conviction.[16] That number is misleadingly low because prosecutors who are aware of the rule likely decline a number of cases that would have triggered the rule. Indeed, the ubiquity of the stand-alone-confession is what apparently gave rise to the corpus delicti rule.

As noted by the LaRosa majority, the goal of the rule is to “reduce the possibility that a person is convicted based on a confession to a crime that never happened.”[17] Criticism of the rule focuses on three issues. The first criticism is that it prevents the conviction of a suspect confessing to an imaginary crime but does not preclude the conviction of a suspect falsely confessing to an actual crime.[18] If a crime demonstrably happened, a mentally ill person falsely confessing to it could still be convicted. The court referred to this as an “incongruity,” and stated it came from the rule’s “inherently flawed design.”[19]

The second criticism the LaRosa Court noted is that changes in the law, such as the U.S. Supreme Court’s decision in Miranda v. Arizona[20] and the proliferation of statutory crimes, have helped curtail the problem of coerced confessions and made the application of the rule in certain situations very difficult.[21] The Court noted Miranda lessened the danger of “overzealous” police interrogations and that showing a tangible injury for inchoate crimes is sometimes impossible.[22] Further, courts have noted that statutory crimes have become so numerous and well-defined that determining what constitutes the corpus delicti of some offenses is nearly impossible.[23]

Finally, critics have noted the rule carries the very real risk of obstructing justice by preventing the conviction of offenders who commit crimes with no evidence of tangible injury.[24] An easier way to consider this criticism is to think of the rule as being over-inclusive because it may result in wrongful acquittals—that is, it sometimes operates to free those who commit and then confess to an actual as opposed to imaginary crime, but one with no tangible remains of provable harm. These types of crimes tend to be those in which victims are either absent or are unable to articulate what happened to them. For example, the Court identified cases in which the rule resulted in dismissals against defendants who admitted to molesting very young children.[25]

The LaRosa Court found each of these criticisms valid, and concluded that more good than harm would come from departing from precedent.[26] It abrogated the corpus delicti rule and, like many other state and federal courts, replaced it with a more forgiving inquiry grounded in analyzing the trustworthiness of the confession.

Formation of the Trustworthiness Standard

The LaRosa Court adopted the reasoning of a trio of U.S. Supreme Court cases announced in 1954. The cases, Opper v. U.S., U.S. v. Calderon, and Smith v. U.S., all dealt with financial crimes where the most damning evidence came from confessions.[27] Of the three, Opper provides the clearest formulation of the standard.

The government accused Opper of conspiring with and bribing a government employee named Hollifield.[28] At trial, the government presented evidence Opper and Hollifield had met and that, soon after the meeting, Hollifield made a decision favorable to Opper. The rest of the proof presented at trial consisted of statements Opper made to federal authorities about a number of “loans” to Hollifield soon after the favorable decision.[29]

After his conviction, Opper appealed and eventually the Supreme Court reviewed the case. One of Opper’s arguments concerned the sufficiency of the evidence—whether the statements he made were sufficient to support a conviction.[30] Opper’s “confession,” after all, was an admission to providing loans—not that the loans were bribes. The Court formulated a rule requiring the prosecution to “introduce substantial independent evidence which would tend to establish the trustworthiness of the statement.”[31] This, then, was the first formulation of the trustworthiness standard.

The Opper Court went on to conclude that the additional information presented by the government (the timing of Hollifield’s decision and evidence showing the two had met) provided enough corroboration to make the defendant’s statements trustworthy.[32] The statements, when added to the other evidence, were enough to permit a fact finder to find beyond a reasonable doubt that Hollifield committed the charged offense. The Court specifically noted the need for a flexible rule by saying “[e]ach case has its own facts admitted and its own corroborative evidence, which leads to patent individualization of the opinions.”[33]

Versions of this new trustworthiness standard have been adopted by a host of federal and state courts.[34] But a note of caution is appropriate in surveying these cases—a note whose roots are grounded in a philosophical debate about the scope of the original corpus delicti rule, the scope of the trustworthiness rule, and whether the latter really is a substitute for or rather a reinterpretation of the former. Some judges (including the LaRosa dissenters) consider the trustworthiness standard to be the U.S. Supreme Court’s interpretation of the federal common law of corpus delicti.[35] Others assert corpus delicti no longer exists in the federal system and the trustworthiness standard is a wholly new construct.[36] Still others use the two terms somewhat interchangeably.[37]

In any event, the flexibility of the trustworthiness standard, at once its greatest asset and its greatest limitation, caused the Colorado Supreme Court to provide some additional guidance to help trial judges and lawyers apply the standard.[38] In doing so, the Court seemed to shift the focus of the inquiry from whether other evidence proved the crime occurred to whether other evidence proved the confession was reliable.[39] Of course, these two inquiries are related. If there is corroborating evidence of the crime, it automatically corroborates the trustworthiness of the confession, but the discussion in LaRosa seems focused on the circumstances surrounding the confession in a way that the analysis in Opper did not. The Opper court emphasized facts directly supporting the prosecution’s case quite apart from the confession, most critically the timing of the loans compared to the governmental decision. It said virtually nothing about the circumstances of Opper’s confession. The LaRosa Court, in contrast, articulated a test in which facts outside the confession (such as the timing of the loans in Opper) are but one way to establish its trustworthiness. This expanded test is both more and less inclusive than the corpus delicti rule.

The change is less inclusive because the trustworthiness standard can, in some cases at least, prevent the “incongruous” result presented by corpus delicti—where a false confession to a crime that actually happened, but one the confessor did not commit, still would result in a conviction.[40] After all, a strict application of corpus delicti would result in a conviction if the prosecution could show the crime demonstrably happened without the confession. In theory, the trustworthiness standard could prevent the conviction of a mentally ill person falsely claiming credit for an actual crime because the inquiry focuses on the trustworthiness of the confession itself.

The new standard is more inclusive because corroborating the confession is often much easier than showing a crime occurred with independent evidence. This change lessens the possibility of the wrongful acquittal. The LaRosa case itself just might be such an example of a wrongful acquittal under the corpus delicti rule that would, but for the due process issues, have been a rightful conviction under the trustworthiness standard. Of course, by tipping the scales in adopting this standard, the Court also increased the possibility of a wrongful conviction.

This is Part 1 of a two-part series. Stay tuned.

Samuel A. Evig is a deputy district attorney in the 18th Judicial District—sevig@da18.state.co.us. The views expressed in this article are not necessarily those of the 18th Judicial District Attorney’s Office.

The opinions and views expressed by Featured Bloggers on CBA-CLE Legal Connection do not necessarily represent the opinions and views of the Colorado Bar Association, the Denver Bar Association, or CBA-CLE, and should not be construed as such.

 

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[1] People v. LaRosa, 293 P.3d 567, 575 (Colo. 2013).

[2] In Dougherty v. People, 1 Colo. 514, 528 (Colo. Terr. 1872), announced in 1872 (before Colorado became a state), the Supreme Court of the Colorado Territory examined the doctrine and upheld a conviction based on the accused administering “boneset” to cause an abortion.

[3] Also sometimes called the “corroboration rule” or the “Opper corroboration rule.” See Moran, “In Defense of the Corpus Delicti Rule,” 64 Ohio State L.J. 817, 851-52.

[4] LaRosa, 293 P.3d at 577-78.

[5] Id. at 570-71.

[6] Id.

[7] Id. at 571.

[8] Id.

[9] Id. The Colorado Supreme Court’s opinion quotes portions of the unpublished decision. Based on those quotes, it appears the court of appeals decided the case based on the fact that prosecution’s non-confession evidence could not establish the crime actually occurred. Instead, the evidence showed only that LaRosa had a chance to commit the offense, something the court of appeals said “every custodial parent has on a virtually continuing basis.”

[10] Id. at 578-79. One of the difficult parts of interpreting this decision is whether, had the trustworthiness standard been applied to this case, the outcome might have been different. Although it is possible to read too much into this opinion, given the Court’s dissatisfaction with the corpus delicti rule and the specific criticism of the rule as sometimes frustrating justice, it is likely that the result would have been very different. Had the dissenters won the day, the result would have been different.

[11] Black’s Law Dictionary 346 (7th ed., West Group, 1999).

[12] LaRosa, 293 P.3d at 572, citing Downey v. People, 215 P.2d 892, 899 (Colo. 1950).

[13] Id.

[14] Moran, supra note 3 at 817, citing 2 Hale, Pleas of the Crown 290 (1678); Moran, supra note 3 at n.60, citing Perkins, “The Corpus Delicti of Murder,” 48 Virginia L.Rev. 173 (1962) and Margolis, “Corpus Delicti, State of the Disunion,” 2 Suffolk University L.Rev. 44 (1968).

[15] Moran, supra note 3 at 826-29. According to Moran, the doctrine came from English commentators and became a part of American jurisprudence. Moran traces the foundations of the rule to 17th century England.

[16] See Meredith v. People, 380 P.2d 227 (Colo. 1963) (rule operated to overturn conviction of man for engaging in “unnatural” sex acts with a 5-year-old boy); People v. Rankin, 554 P.2d 1107 (Colo. 1976) (rule overturned conviction for distributing drugs); People v. Robson, 80 P.3d 912 (Colo.App. 2003) (rule precluded trial of man accused of sexually assaulting his infant daughter); Owen v. People, 392 P.2d 163 (Colo. 1964) (rule overturned conviction for sexual assault and incest of a deceased 16-year-old victim); Cobianchi v. People, 141 P.2d 688 (Colo. 1943) (rule operated to overturn second-degree murder conviction); People v. Maestas, 508 P.2d 782 (Colo. 1973) (theft conviction reversed because of the rule); People v. Applegate, 509 P.2d 1238 (Colo. 1973) (forgery conviction reversed based on the rule); People v. T.A.O., 36 P.3d 180 (Colo.App. 2001) (rule operated to overturn adjudication of a juvenile who confessed to sexually touching his sister).

[17] LaRosa, 293 P.3d at 572, citing McCormick on Evidence § 145 at 595.

[18] Id. at 574. The Court used this argument to conclude the rule was “originally erroneous.” This reasoning is somewhat puzzling because the rule did stop the conviction of someone falsely confessing to a crime that did not happen, a laudable if narrow goal. See Moran, supra note 3 at 836-37. If the original purpose of the rule was to stop the conviction and subsequent execution of someone for a crime that did not happen, how is the rule originally erroneous when it protects against the very harm it was designed to prevent?

[19] Id.

[20] Miranda v. Arizona, 384 U.S. 436 (1966).

[21] Id. at 574-75. But see generally Moran, supra note 3. Moran defends the corpus delicti rule using a murder case he defended to show that no constitutional doctrines involving confession would have operated to prevent the conviction of his client, and further asserts the trustworthiness standard is too malleable to protect suspects.

[22] Id.

[23] See State v. Mauchley, 67 P.3d 477, 487-488 (Utah 2003) (noting that different states have taken different approaches to whether corpus delicti applies to aggravators for capital murder, that some states specifically exclude the rule from applying to some crimes because of the difficulty, and ultimately abolishing the rule rather than attempting to work around the rule’s limitations). The problem of deciding what elements exactly establish the body of the crime is an even greater difficulty in states such as Utah, which require proving corpus delicti before the confession is admitted.

[24] LaRosa, 293 P.3d at 575, citing State v. Parker, 337 S.E.2d 487, 494 (N.C. 1985) (noting the difficulty of applying corpus delicti in crimes without a tangible injury and providing a broad discussion of the rule), and Mauchley, 67 P.3d at 488 (noting that other jurisdictions had to “selectively apply” the rule and ultimately deciding to abandon the rule). As noted by the Court in LaRosa, “the rule may operate to bar conviction for crimes committed against the most vulnerable victims, such as infants, young children and the mentally infirm.” Such concerns are valid; a number of cases involving the corpus delicti rule are horror shows. See supra note 16. See also Gibbard, “Corpus Delicti: Three Unusual Colorado Cases,” 38 The Colorado Lawyer 83 (March 2009) (a historical examination of the rule reversing three convictions, one involving a victim possibly being beaten to death, the second involving a victim dying after a possible illegal abortion and a “rabbit test,” and the third involving a man’s body being interred in his yard by his wife after either a murder or suicide). See also Williams v. People, 158 P.2d 447 (Colo. 1945) (mother put on trial after the discovery of the bodies of three of her babies—two of them mummified—found in her belongings). The Court is correct in articulating that the rule operates to prevent convictions in some cases where proving an actual injury is difficult; however, some might argue this is one purpose of the rule.

[25] LaRosa, 293 P.3d at 575, citing Robson, 80 P.3d at 913-14, and Meredith, 380 P.2d at 228.

[26] Id.

[27] Opper v. U.S., 348 U.S. 84 (1954) (prosecuting defendant for bribing a federal employee); Smith v. U.S., 348 U.S. 147 (1954) (prosecution for tax evasion); U.S. v. Calderon, 348 U.S. 160 (1954) (prosecution for tax evasion).

[28] Opper, 348 U.S. at 84-87.

[29] Id. at 88.

[30] Id. at 91-95.

[31] Id. at 93.

[32] Id. at 93-94.

[33] Id. at 93.

[34] See generally Schopler, Annotation, “Corroboration of Extrajudicial Confession or Admission,” 45 A.L.R.2d 1316 (originally published in 1956); Weisman, Annotation, “Sufficiency of Evidence to Support Homicide Conviction Where No Body Was Produced,” 65 A.L.R.6th 359 (originally published in 2011).

[35] See LaRosa, 293 P.3d at 580 (stating the trustworthiness standard “was therefore not a new restriction on the effect of confessions at all, but rather the Court’s definitive interpretation of the common-law rule, for the federal courts”).

[36] See Fontenot v. State, 881 P.2d 69, 78 (Okla.Crim.App. 1992) (Fontenot II),citing U.S. v. Kerley, 838 F.2d 932, 940 (7th Cir. 1988).

[37] See State v. Heiges, 779 N.W.2d 904, 909-12 (Minn.App. 2010) (Minnesota also has a statute requiring corroboration to sustain a conviction based on a confession—indicating it is a codification of the common-law rule—and using trustworthiness standard cases to support its position). See also State v. Weisser, 150 P.3d 1043, 1048 (N.M.C.A. 2006) (conflating the trustworthiness doctrine with corpus delicti) distinguished by State v. Wilson, 248 P.3d 315 (N.M. 2010).

[38] LaRosa, 293 P.3d at 577-78. In footnote 9 of the opinion, the Court notes several attempts by other courts to outline a proper application of the rule.

[39] Id.

[40] See In re K.A., 60 A.3d 442 (D.C.App. 2013). There, police searched a home and found guns under the mattress of a grandfather living at the home. About an hour after learning of the arrest, and while police were still on scene, K.A. confessed that the guns belonged to him and told officers to release his grandfather. K.A. provided a more detailed statement in which he identified the guns, but the court found his confession to be insufficiently corroborated. A strict application of the corpus delicti rule in this case would have created a different result because K.A. did, indeed, confess to a crime that actually occurred (possession of unregistered firearms).

Colorado Court of Appeals: Defendant Charged Twice with Leaving Scene of Accident Subjected to Double Jeopardy

The Colorado Court of Appeals issued its opinion in People v. Medrano-Bustamante on Thursday, October 24, 2013.

Driving Under the Influence—Vehicle Homicide—Vehicular Assault—Leaving the Scene of an Accident—Lesser Included Offense—Testimony—Opinion Evidence—Expert Testimony—Hearsay.

Defendant appealed the judgment of conviction entered on jury verdicts involving multiple charges. The judgment and sentence were affirmed in part and vacated in part, and the case was remanded.

Defendant, Jose Medrano-Frias (Frias), and 15-year-old A.S. were involved in a single-car accident that injured Frias and resulted in the death of A.S. Defendant was charged with driving under the influence (DUI), vehicular homicide–DUI, vehicular assault–DUI, and two counts of leaving the scene of an accident. At trial, the identity of the driver was contested—defendant argued that A.S. was driving at the time of the accident. The jury convicted defendant as charged.

Defendant contended that the convictions based on two counts of leaving the scene of an accident, one for Frias and one for A.S., were multiplicitous. Because the unit of prosecution is the number of accident scenes and not the number of victims, defendant’s two convictions for leaving the scene of a single accident violate his right to be free from double jeopardy.

The Court of Appeals therefore ruled that the two convictions related to leaving the scene of an accident—one involving serious bodily injury and the other involving death—should be merged into one, and thus remanded to the trial court on this issue. The Court then vacated the imposed sentence regarding conviction for leaving the scene of an accident involving serious bodily injury.

The Court ordered that the mittimus be corrected based on its rulings. The judgment regarding all other issues in this case was affirmed.

Summary and full case available here.

Tenth Circuit: State Court’s Refusal to Consider Merits of Claim Because It Was Previously Determined Was Not a Proper Basis for Denying Federal Habeas Review

The Tenth Circuit Court of Appeals published its opinion in LeBere v. Abbott on Friday, October 18, 2013.

Kent LeBere is serving a 60-year term of imprisonment imposed by a Colorado court as a result of his conviction for second-degree murder and second-degree arson. In his 28 U.S.C. § 2254 petition for habeas relief, he contended the State relied on perjured testimony and withheld potentially exculpatory evidence material to his defense in violation of Brady v. Maryland, 373 U.S. 83 (1963). The only question presented was whether federal courts may consider his claim. It involved the interplay between state and federal procedural rules.

After LeBere began serving his sentence and while his direct appeal was pending, Ronnie Archuleta, a key witness against him, recanted his testimony. LeBere moved for a new trial based upon that newly discovered evidence. His new trial motion became a collateral part of his direct appeal, which was denied. LeBere then brought this habeas petition claiming, for the first time, a Brady violation based on the undisclosed acts of a detective who allegedly encouraged Archuleta to lie at the trial. The district judge abated these habeas proceedings to permit LeBere to exhaust his new claim in the state courts. He then filed a petition for post-conviction relief with the Colorado trial court asserting the Brady claim. The petition was not decided on the merits; post-conviction relief was denied because the Brady claim was part and parcel of his newly discovered evidence claim, which was addressed and decided on direct appeal. Importantly, the Brady issue was not considered to have been procedurally barred because it was not timely raised; it was considered to have been subsumed in the new trial motion and, in effect, decided when the new trial motion was denied. And since it had been decided on direct appeal, under Colorado procedures it could not be revisited in post-conviction proceedings (successive bar). LeBere returned to federal court with the Brady claim. The district judge concluded it was procedurally barred by Colorado’s successive bar rule.

LeBere contended Colorado’s successive bar had no effect on the availability of habeas review of his particular claims. The Tenth Circuit held he was correct.

In his Rule 35(c) post-conviction proceedings, LeBere presented his Brady claim to the state courts. But the post-conviction court did not resolve the Brady claim on the merits. Instead, it declined review under a Colorado rule barring post-conviction review of a claim raised and resolved in a previous proceeding. See Colo. R. Crim. P. 35(c)(3)(VI). Generally, when a state court dismisses a federal claim on a procedural ground, the doctrine of procedural default forecloses federal  review. Coleman v. Thompson, 501 U.S. 722 (1991). The question, then, was whether the application of the state’s successive bar presented a barrier to federal review. The Tenth Circuit concluded it did not.

Cone v. Bell, 556 U.S. 449 (2009) controlled the outcome of this case. In Cone, the Supreme Court decided a state court’s refusal to consider the merits of a claim because the claim was previously determined was not a proper basis for denying federal habeas review. As in Cone, LeBere raised a state-law nondisclosure claim on direct appeal and, based on the same facts, a Brady claim on post-conviction review. And, as in Cone, the post-conviction court applied the state bar on successive claims in declining to reach the merits. If the application of the successive bar in Cone did not affect the availability of federal review, the same should be true for a nearly identical rule here.

REVERSED and REMANDED.