October 13, 2015

Colorado Supreme Court: Assault Sentence to be Consecutive with Any Other Sentence Being Served

The Colorado Supreme Court issued its opinion in People v. Diaz on Monday, April 27, 2015.

Sentencing—Statutory Interpretation—CRS § 18-3-203(1)(f).

Defendant was convicted of second-degree assault of a detention center employee in two separate cases. Trial for the second assault preceded trial for the first assault. Defendant finished serving his original sentence before trial in either case. The trial court held that CRS § 18-3-203(1)(f) requires that the sentence for the first assault be served consecutively to the sentence for the second assault. The court of appeals reversed on the ground that mandatory consecutive sentencing applies only to the sentence a defendant is serving at the time of the assault. The Supreme Court reversed the court of appeals’ judgment, holding that CRS § 18-3-203(1)(f) requires a consecutive sentence if, at the time of sentencing, the defendant is serving any other sentence.

Summary and full case available here, courtesy of The Colorado Lawyer.

Tenth Circuit: No Sixth Amendment Violation for Long Delay but Defendant’s Speedy Trial Act Rights were Violated

The Tenth Circuit Court of Appeals issued its opinion in United States v. Hicks on Friday, March 6, 2015.

Brian Hicks was arrested following a shooting in 2005, and at the time of arrest he was wearing a bulletproof vest and carrying a loaded .40 caliber Glock magazine. Because of his previous felony convictions, he was not allowed to possess these items, and was charged with one count each of possession of firearms and body armor by a convicted felon. More than a year later, Denver’s Metro Gang Task Force intercepted a call suggesting that Hicks was going to meet a drug dealer to purchase cocaine. After the meeting, police attempted a traffic stop, which turned into a chase. During the chase, Hicks threw a black bag from his car. Police later apprehended Hicks and recovered the bag, which contained several kilograms of cocaine. Hicks was indicted on multiple charges related to conspiracy to distribute cocaine in 2007. The government and Hicks engaged in a years-long period of motions and continuances, and finally on August 1, 2012, the district court ruled that all remaining issues had been resolved and the matter could be set for trial. On August 2, 2012, the government moved for the court to set a trial date. The district court ruled on this motion on September 27, 2012, when it scheduled a status conference and hearing on all pending motions for November 28, 2012. However, on November 15, Hicks filed two motions to dismiss on speedy trial grounds, one based on violation of his Sixth Amendment right to a speedy trial and one based on violations of the Speedy Trial Act. The district court denied both motions. Hicks eventually pleaded guilty in February 2014, reserving the right to appeal the denial of his speedy trial motions.

The Tenth Circuit first reviewed the denial of Hicks’ Sixth Amendment violation claims. The Tenth Circuit found the length of the delay, five and a half years, was presumptively prejudicial, and turned to the reason for the delay. Most of the delay was attributable to Hicks—he filed over forty unique motions, including several requesting deadline extensions or continuances; he changed counsel several times during the proceedings; and he requested that his federal prosecution be delayed until the conclusion of his state court proceedings. Although some of the delay was attributable to the prosecution, the majority of it was because of Hicks, and this factor weighed against him. Next, the Tenth Circuit evaluated whether Hicks asserted his right to a speedy trial, and found that although he first asserted his right in January 2008, he did not renew his assertion until August 2011. This weighed against Hicks also. Finally, the Tenth Circuit evaluated whether the delay prejudiced Hicks. Because he was already serving a life sentence on different charges, the delay did not cause pre-trial confinement concerns. Hicks also failed to make a particularized showing of increased anxiety from the delay, leaving Hicks to show that the delay “fundamentally hampered his ability to assist in his defense.” Hicks did not make this showing; although he was housed in the administrative segregation unit of the prison, he was generally able to meet with his legal counsel at any time during business hours, and he made numerous motions for continuances and extensions of time. The Tenth Circuit found no Sixth Amendment violation and affirmed the district court’s denial of Hicks’ motion.

Turning next to the Speedy Trial Act claims, the Tenth Circuit evaluated whether the delay in setting Hicks’ hearing exceeded the Speedy Trial Act’s 70-day limit, and found that it did. The district court issued its order resolving all remaining issues on August 1, 2012, and the Speedy Trial clock started ticking then. It was tolled for thirty days by the prosecution’s motion to set the trial, but the 70 days expired on November 10, 2012, and Hicks’ Speedy Trial Act rights were therefore violated. The Tenth Circuit reversed the district court’s denial of Hicks’ Speedy Trial motion and remanded with orders to vacate his convictions and determine if they should be vacated with or without prejudice.

Colorado Court of Appeals: Employment is a Thing of Value for Identity Theft Purposes

The Colorado Court of Appeals issued its opinion in People v. Campos on Thursday, April 23, 2015.

Employment—Identify Theft—Evidence—Impeachment—Credibility.

A police investigator discovered that defendant, an employee of ABM Janitorial Services, had been receiving paychecks under the name “S.A.” for approximately four years using S.A.’s social security number. Defendant was charged with identity theft, criminal impersonation, and two counts of forgery related to her hiring paperwork. The jury convicted defendant of identity theft and criminal impersonation but acquitted her of the two forgery counts.

On appeal, defendant contended that the evidence at trial was insufficient to convict her of identity theft. Because employment is a “thing of value” within the meaning of the identity theft statute, the evidence that defendant used S.A.’s personal identifying information to obtain employment at ABM was sufficient to sustain the conviction.

Defendant also contended that the trial court abused its discretion in restricting defense counsel’s recross-examination of Juan Martinez, an ABM manager, about whether he (1) had a valid social security number, and (2) was required to give ABM a social security number when he went to work there. The record shows that the trial court was well within its discretion to conclude that these two questions were repetitive of the areas already covered and were only marginally relevant. Further, precluding responses to the two questions did not excessively limit the defense’s ability to cross-examine Martinez, nor did the questions relate to Martinez’s bias, prejudice, or motive for testifying. Therefore, the court’s ruling was not an abuse of discretion and did not violate defendant’s rights under the Confrontation Clause. The judgment was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Ineffective Assistance Claims Improperly Asserted in Crim. P. 33 Motion

The Colorado Court of Appeals issued its opinion in People v. Lopez on Thursday, April 23, 2015.

Assault—Menacing—Obstructing a Peace Officer—Jury Instruction—Attempt—Ineffective Assistance of Counsel—Crim.P. 33.

Defendant assaulted his wife and broke her clavicle. A uniformed officer found defendant outside the hospital. When the officer attempted to speak to him about his wife’s injuries, defendant became aggressive and threatening toward the officer. A jury convicted defendant of second-degree assault causing serious bodily injury, menacing by the use of a deadly weapon, and obstructing a peace officer.

On appeal, defendant contended that the evidence was insufficient to establish that he committed the crime of menacing against the police officer. Evidence showed that defendant made a threat and that he placed or attempted to place the first officer in fear of imminent serious bodily injury by telling her he had a knife and approaching her in an aggressive manner. This was sufficient to support a conviction for misdemeanor and felony menacing.

Defendant contended that the record did not contain sufficient evidence to support the conviction for obstructing a peace officer because the officer had not arrested nor intended to arrest defendant at the time. The obstructing statute is not limited to officers making arrests, and there was sufficient evidence that defendant’s conduct violated the obstructing statute even though the first officer did not arrest him.

Defendant also argued that the trial court erred when it instructed the jury on criminal attempt, even though the prosecution had not charged defendant with attempt. Because defendant was charged with menacing, and menacing includes the element of attempt, the court did not err in instructing the jury on the definition of attempt.

Defendant argued that the trial court erred when it denied his motion for a new trial because his trial counsel had been ineffective. Because defendant raised this as a Crim.P. 33 motion instead of a Crim.P. 35(c) motion, the trial court’s decision to deny defendant’s Crim.P. 33 motion without a hearing was reviewed for an abuse of discretion. The Court of Appeals found that the trial court’s rulings were not manifestly arbitrary, unreasonable, or unfair because defendant failed to prove prejudice based on any alleged errors. The judgment was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Evidence of Defendant’s Gang Membership Admissible to Show Motive

The Colorado Court of Appeals issued its opinion in People v. Clark on Thursday, April 23, 2015.

Murder—Evidence—Gang Membership—Collateral—Fifth Amendment Privilege—Prior Consistent Statement—Jury Instruction—Complicity—Juror Misconduct.

After getting into an altercation at a club on New Year’s Eve, defendant and Daniel Harris fired gunshots aimed at an oversized limousine, which left Darrent Williams, a member of the Denver Broncos football team, dead; two additional people wounded; and fourteen others uninjured but shaken. A jury found defendant guilty of one count of murder (extreme indifference), one count of murder (after deliberation), sixteen counts of attempted first-degree murder, two counts of second-degree assault, sixteen counts of violent crime, and one count of possession of a weapon by a previous offender.

On appeal, defendant argued that the court erred by admitting evidence and testimony regarding his gang membership, as well as expert testimony about gang origin, structure, psychology, hierarchy, and presence in Denver. Because defendant’s gang affiliation had motivated him to participate in the shooting, this evidence was admissible to show motive.

Defendant asserted that the trial court abused its discretion by precluding certain lines of inquiry during his cross-examination of three witnesses. It was not an abuse of discretion to prohibit cross-examination of the factual details underlying other incidents because this information was collateral and inadmissible. Further, defense counsel had already established that the witnesses had been dishonest in the past.

Defendant asserted that the trial court erred in its handling of two witnesses who refused to answer questions based on the Fifth Amendment’s privilege against self-incrimination. It was not an abuse of discretion for the trial court to grant Bragg’s (Harris’s brother) motion to quash the subpoena to testify before subjecting him to questioning in front of the jury. Additionally, it was not error for the court to sustain Harris’s invocation of the Fifth Amendment privilege because it was at least possible that his response could have incriminated him.

Defendant contended that the trial court abused its discretion by admitting the entire videotaped interview of Harris as a prior consistent statement. Because the court gave defense counsel extensive leeway to attack Harris’s credibility with respect to his testimony in this case and his prior interactions with police officers, admission of the entire video was necessary to give the jury the full picture of what he had said to the police.

Defendant additionally argued that the prosecution violated his due process rights because it knowingly used Harris’s false evidence to obtain his conviction, and the prosecution improperly argued inconsistent factual theories. However, there is no evidence of perjury in the record, and the trial court did not err by allowing the prosecution to present alternative legal theories in this single trial involving this single defendant.

Defendant asserted that certain jurors’ actions occurring during trial constituted juror misconduct. The affidavit tendered by defendant contained hearsay evidence that two jurors had conducted experiments on their own to weigh some of the evidence, and that an alternate juror who was removed from the case had communications with a deliberating juror about the case. Although the affidavit was based on hearsay, the trial court erred by not considering the allegations set forth in the affidavit when it denied defendant’s motion for a new trial without a hearing. Therefore, the case was remanded for an evidentiary hearing on the issue of juror misconduct.

Summary and full case available here, courtesy of The Colorado Lawyer.

Tenth Circuit: Strict Liability Offense Does Not Qualify as Crime of Violence for Sentencing

The Tenth Circuit Court of Appeals issued its opinion in United States v. Wray on Tuesday, January 27, 2015.

Reginald Gerome Wray pleaded guilty to being a felon in possession of a firearm and was sentenced to 77 months’ imprisonment and three years’ supervised release. On appeal, Mr. Wray disputed that his prior conviction for “sexual assault – 10 years age difference” constitutes a crime of violence to increase his base sentencing level. Mr. Wray argued that under the U.S. Supreme Court’s decision in Begay v. United States, 553 U.S. 137 (2008), his prior conviction should not count as a crime of violence for sentencing purposes.

The Tenth Circuit analyzed U.S.S.G. § 4B1.2 and its application note. The circuit addressed whether Mr. Wray’s offense qualified as a “forcible sex offense” under the language of the application note or if it was conduct that presented a serious risk of potential injury under the residual clause, § 4B1.2(a)(2).

The Tenth Circuit employed a categorical approach in determining whether Mr. Wray’s prior offense was a crime of violence. Analyzing Supreme Court precedent in Begay and Sykes, the Tenth Circuit found that Begay applied to strict liability or negligence crimes, while the Sykes analysis of whether the conduct was purposeful, violent, or aggressive defined the level of risk. Turning to Mr. Wray’s offense, the Tenth Circuit first addressed the government’s argument that all statutory rape offenses are necessarily forcible because minors are not legally able to consent and rejected it. Applying the reasoning of the Fourth Circuit in a similar matter, the Tenth Circuit found that not all sex offenses where there is no legal consent are forcible, and that the absence of legal consent does not preclude the possibility of actual consent. The Tenth Circuit further found that Colorado statutes specifically contemplate non-forcible sex offenses, and Mr. Wray’s offense was not categorically forcible.

Next, the Tenth Circuit evaluated whether Mr. Wray’s offense fell within the residual clause and found that it did not. Following Begay, the Tenth Circuit found that the elements of Mr. Wray’s offense indicated it was a strict liability crime, since the offender need not have knowledge of the victim’s age in order to be culpable. The Tenth Circuit found that because the crime at issue was a strict liability offense, it fell within the Begay exception and did not qualify as a crime of violence.

The case was remanded for resentencing.

Tenth Circuit: Federal Revocation Proceeding Inappropriate Venue for Collateral Attack on State Court Conviction

The Tenth Circuit Court of Appeals issued its opinion in United States v. Engles on Wednesday, March 4, 2015.

Billy Engles, a registered sex offender, was on federal supervised release for an unrelated offense when he accompanied his then-girlfriend to her daughter’s high school to update emergency contact information. He was at the school for approximately ten minutes. A school employee recognized Engles as a sex offender and reported his visit. Engles was charged with violating Oklahoma’s Zone of Safety Around Schools Statute, which prohibits sex offenders from “loitering” on or around schools. Engles argued in state court that he was not “loitering” because his visit to the school was for a specific purpose and was very short, but he was ultimately convicted. He is appealing his state court conviction.

The federal court revoked Engles’ supervised release based on the state court conviction, and Engles appealed. On appeal, however, Engles did not dispute that his criminal conviction provided an adequate evidentiary basis for revocation of release, but rather argued that the conduct complained of in Oklahoma state court did not constitute “loitering.” The Tenth Circuit characterized Engles’ argument on appeal as a straightforward collateral attack on his state court conviction. Noting that Engles must challenge his conviction in state court rather than through a collateral attack in the revocation proceeding, the Tenth Circuit affirmed the revocation of Engles’ supervised release. In a footnote, the Tenth Circuit added that nothing in its opinion prevented Engles from filing a future motion to vacate his supervised release revocation, should he prevail in his state court appeal.

Colorado Court of Appeals: Specific Statutory Medical Marijuana Registry Offenses Not Exclusive Means of Prosecution for Violations

The Colorado Court of Appeals issued its opinion in People v. Montante on Thursday, April 9, 2015.

Physician—Medical Marijuana—Attempt to Influence a Public Servant—Lesser Non-Included Offense—Jury Instructions—Unconstitutionally Vague—First Amendment—Motion to Suppress—Expert Witness.

Defendant worked as a contract physician at a medical marijuana clinic. Defendant issued “Nick Moser,” an undercover police detective, a Physician Certification stating that Moser suffered from a debilitating medical condition and might benefit from the medical use of marijuana despite the fact that Moser did not suffer from any medical conditions. Defendant was charged and convicted of attempt to influence a public servant.

On appeal, defendant argued that the trial court erred in denying his pretrial motion to dismiss the charge because the legislature proscribed and directed punishment for his conduct in the specific medical marijuana registry fraud statute. Although the statute could apply to a physician’s recommending medical marijuana in a Physician Certification, it does not preclude prosecution for defendant’s conduct under the attempt to influence a public servant statute.

Defendant argued that the trial court erred in denying his request for a lesser non-included offense jury instruction on medical marijuana registry fraud under CRS § 18-18-406.3(2)(a). There was no evidentiary basis on which the jury rationally could have convicted defendant of medical marijuana registry fraud but acquitted him of attempt to influence a public servant. Consequently, the jury could not rationally have convicted defendant of the lesser offense and acquitted him of the greater. Accordingly, the trial court did not err in rejecting defendant’s tendered instruction.

Defendant argued that the attempt to influence a public servant statute is unconstitutional because it is vague as applied to him and violates his free speech rights under the First Amendment. The statute was sufficiently clear that it prohibited defendant’s alleged conduct. Furthermore, false representations such as those made by defendant are not protected by the First Amendment.

Defendant argued that the trial court erred in denying his motion to suppress because the trial court incorrectly concluded that he was not in custody at the time the statements were made. The interview took place at defendant’s clinic, he was not coerced, and the statements were made voluntarily. Therefore, defendant was not in custody when the interview took place and Miranda warnings were not required.

Defendant argued that the trial court erred in admitting the prosecution’s expert testimony on general medical assessments, examinations of patients, and establishing a bona fide physician-patient relationship. The physician was qualified as an expert, and his testimony could have assisted the jury in determining whether defendant’s representations were false. Therefore, the trial court did not abuse its discretion in determining that the testimony met the requirements of CRE 702 and was not excludable under CRE 403. The judgment was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Admission of Voice Exemplar Did Not Violate Right Against Self-Incrimination

The Colorado Court of Appeals issued its opinion in People v. Ortega on Thursday, April 9, 2015.

Voice Identification—Self-Incrimination—Physical Evidence—Due Process—CRE 403—Prosecutorial Misconduct.

While at a public park, an undercover police officer who was wearing a wire bought marijuana from a man who was later identified as Ortega. At trial, the prosecutor moved to have Ortega read a statement to allow the jury the opportunity to match his voice with the person speaking on the recording of the drug deal.

On appeal, Ortega argued that the voice identification procedure violated his right against self-incrimination, the right to due process, and CRE 403. The voice exemplar provided by defendant was physical evidence and not testimonial. Therefore, the procedure did not violate Ortega’s right against self-incrimination. Additionally, although the jurors had not seen or heard Ortega before trial, they listened to the officer’s and detective’s testimony describing their out-of-court identifications of Ortega. This testimony gave them “an independent basis” for identifying Ortega as the seller. Therefore, the totality of the circumstances indicates that the identification procedure did not violate Ortega’s right to due process. Finally, the trial court’s determination that the voice exemplar posed a minimal risk of unfair prejudice was not “manifestly arbitrary, unreasonable, or unfair.”

Ortega also argued that the prosecutor’s comments during closing argument appealed to the jurors’ fears and concerns for public safety, thus denying him a fair trial. The prosecutor’s comments were an improper attempt to persuade the jurors to convict defendant “in order to combat evil for the community.” However, because the comment was an isolated incident in an otherwise proper closing argument, the error was harmless.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Abbreviated Miranda Warning Does Not Adequately Advise Suspect of Rights

The Colorado Court of Appeals issued its opinion in People v. Carter on Thursday, April 9, 2015.

Miranda Warning—Police Interview—Jury Access to Video Interview.

Ray and Owens were attendees at a barbecue and rap festival. When a fight broke out in the parking lot, Owens shot and killed an individual who attempted to break up the fight, and Ray shot and injured Marshall-Fields and another person. After the shooting, Ray and Owens fled in Ray’s car. Ray and Owens were charged in connection with the homicide.

About one year after the shooting, Owens instructed Carter to approach Marshall-Fields, who was at a sports bar, and discourage him from testifying—either by offering him money or threatening him. Carter entered the bar and spoke to Marshall-Fields. The following night, Marshall-Fields and his fiancée were shot and killed in their car by the occupants of a passing vehicle. A jury convicted Carter of conspiracy to commit first-degree murder, intimidating a witness, and unlawful distribution of a controlled substance.

On appeal, Carter contended that the district court erred in admitting evidence of his videotaped interrogation because the police failed to adequately advise him of his Miranda right to have a lawyer present. A warning that provides that a custodial suspect has “the right to have an attorney,” without more, does not adequately inform a suspect of his or her right to the presence of an attorney before and during the interrogation. However, because Carter never confessed and did not otherwise incriminate himself during the interview, the admission of his videotaped interview was ultimately harmless beyond a reasonable doubt and did not affect the outcome of the trial. Therefore, the court’s error did not warrant reversal.

Carter also contended that the district court erred in allowing the jury to have unfettered access to the video-recording of his interrogation. A district court may allow “unrestricted jury access during deliberations to a defendant’s voluntary and otherwise admissible confession.” Although the lack of Miranda warning prohibited admission of this evidence, any error was harmless. The judgment was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Tenth Circuit: Mandatory Victim Restitution Act Requires Verified Proof of Actual Losses

The Tenth Circuit Court of Appeals issued its opinion in United States v. Ferdman on Friday, February 13, 2015.

Joshua Ferdman and three co-conspirators concocted a plan in which they obtained account information for several corporate customers of Sprint. Defendant impersonated account representatives and purchased cell phones from various Sprint stores, charging them to the corporate accounts. After he was caught, he pled guilty to a two-count indictment. He was sentenced to 15 months in prison and ordered to pay $48,715.59 in restitution pursuant to the Mandatory Victims Restitution Act (MVRA). The court calculated the restitution amount based on what Sprint referred to as the “retail unsubsidized price” of 86 stolen phones, plus Sprint’s shipping and investigative costs. Defendant appeals the restitution order, arguing the government’s proof of loss was insufficient to support the award.

The Tenth Circuit first analyzed the MVRA in detail in light of last term’s Supreme Court decision in Paroline. The Tenth Circuit emphasized that restitution is intended to make victims whole, not unjustly enrich them or provide them a windfall. The Tenth Circuit determined the MVRA is intended to compensate for actual losses, not merely speculated losses, but does not preclude a district court’s exercise of discretion in determining actual loss. The government bears the burden of proof to demonstrate the actual amount of loss.

In this case, Sprint’s regional manager of investigations submitted an unverified letter setting forth Sprint’s losses, basing its calculations on the “retail unsubsidized price” of each fraudulently obtained phone, $449 to $549 per phone. The letter also listed estimated shipping costs, travel expenses, investigatory expenses, and GPS activation expenses, listing Sprint’s estimated total loss as $48, 715.59.

Defendant argued the better measure of actual loss was the price he paid per phone, or $149 to $199 per phone, and repeatedly questioned the government’s evidence of actual losses. Defendant pointed out that the government did not present any evidence his crimes caused Sprint to lose retail sales or attendant profits. The district court denied an evidentiary hearing on the restitution amount, and found the MVRA’s “value of the property” language broad enough to cover lost profits.

The Tenth Circuit found that the government’s complete lack of verified evidence precluded a restitution award. Because the MVRA requires proof of actual losses, the Tenth Circuit vacated the district court’s restitution award and remanded for further proceedings.

Colorado Supreme Court: Court of Appeals Had Jurisdiction to Entertain Expedited Bond Revocation Appeal

The Colorado Supreme Court issued its opinion in In re People v. Jones on Monday, April 6, 2015.

Appeal of Bail Bond Orders—Conditions of Bail Bond.

Jones petitioned for relief pursuant to CAR 21 from a district court order granting the prosecution’s motion to revoke his bail bond in its entirety and order that he be held without bond pending resolution of charges in a different district. The district court reasoned that it was granted the power to do so by CRS § 16-4-105(3), upon concluding that another court had found probable cause to believe Jones committed a felony while released on bond. Jones appealed to the court of appeals according to the expedited procedure of CRS § 16-4-204, but that court found itself to be without jurisdiction to entertain an expedited appeal from an order entered pursuant to CRS § 16-4-105(3).

The Supreme Court held that the court of appeals erred in concluding that it lacked jurisdiction to entertain Jones’s appeal. Colorado’s statutory scheme governing release on bail entitled Jones to an expedited review of the district court’s order revoking his existing bond and declining to set another pending trial.

The Court further held that the district court erred in revoking Jones’s existing bond and denying him a right to pretrial release altogether. CRS § 16-4-105(3) merely empowered the district court to have Jones brought before it for purposes of modifying the conditions of his pretrial release.

The rule was made absolute. The matter was remanded to the district court with directions to reinstate Jones’s bail bond or change any condition of the bond, as authorized by statute.

Summary and full case available here, courtesy of The Colorado Lawyer.