June 17, 2013

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Colorado Court of Appeals: Emails Sent from Boston and Received in Baltimore Caused Threats for Safety of People in Colorado

March 18, 2013 by Leave a Comment

The Colorado Court of Appeals issued its opinion in People v. Chase on Thursday, March 14, 2013.

Felony Stalking—Subject Matter Jurisdiction—Sufficiency of Evidence a Question of Law.

Defendant Jerry Chase appealed the judgment of conviction entered on jury verdicts finding him guilty of three felony counts of stalking and three misdemeanor counts of harassment. He also appealed the sentences imposed. The judgment was affirmed.

From 2002 to 2008, Chase resided in Wapiti Meadows, a low-income housing complex in Grand County, where he met the three named victims: G.B., D.D., and M.G. M.G. and D.D. were husband and wife. D.D. was the former property manager and M.G. was the maintenance supervisor. During his tenancy, Chase frequently complained to all three about his neighbors, the B. family, whom he alleged made noises that disturbed him. In 2008, Mr. B. accused Chase of putting sugar in his gas tank. Chase was charged with criminal mischief, and a restraining order was entered against him. Chase violated the order by banging on the B. family’s well and yelling an ethnic threat at them.

The Wapiti management evicted Chase on October 1, 2008. On the evening of October 6, 2008, Chase (who was in Boston) sent an e-mail to twenty-three recipients, including G.B., M.G., and D.D. The e-mail was obscenity-laced and contained overt threats against the park residents. The following morning, Chase sent a second obscenity-laced e-mail to thirty-four recipients, including G.B., M.G., and D.D. The e-mail contained direct threats against G.B., M.G., D.D., and others. He then sent another threatening e-mail that contained a photo of a man pointing a gun at a judge, followed by three more e-mails containing similar vile language and violent threats. M.G. and D.D. were in Baltimore when they received the e-mails. They returned to Colorado a few days later and were under the impression that Chase was in Colorado, as well.

Chase was charged with three felony counts of stalking under former CRS § 18-9-111(4)(b)(II). The court also instructed the jury on the lesser non-included offense of misdemeanor harassment by computer. The jury convicted Chase of three counts of felony stalking—one for each victim. He also was convicted of three misdemeanor counts of harassment by computer. Chase was sentenced to four years on each of the felony counts, to run consecutively.

On appeal, Chase argued his convictions of felony stalking of M.G. and D.D. must be vacated. He argued there was insufficient evidence to establish that Colorado had subject matter jurisdiction because no part of the offenses against them was committed in Colorado. The Court of Appeals disagreed.

The Court looked to CRS § 18-1-201 (state jurisdiction over criminal offenses) in relation to the felony stalking statute. The Court found that under the plain language of CRS § 18-9-111(4)(b)(II) and (c)(II), the elemental conduct of making a credible threat is defined by its result of causing a reasonable person to be in fear for his or her safety or the safety of his or her family or intimates. The question under CRS § 18-1-201 was whether Chase committed at least part of the conduct in Colorado.

Chase argued that because he wrote and sent the e-mails in Boston, and because M.G. and D.D. opened the e-mails in Baltimore, none of the conduct occurred in Colorado. The Court held that the proper question was whether the result of Chase’s conduct (causing a reasonable person to be in fear for his or her safety) occurred, at least in part, in Colorado. This is a question of fact for the jury, and the Court found sufficient support in the record to support the jury’s finding that the threats made by Chase in the e-mails would have caused a reasonable person to be in fear for his or her own safety and the safety of other persons in Colorado.

Chase made a related argument concerning whether, in response to a question from the jury, the trial court should have elaborated on the element of the offense regarding its occurrence in Colorado. The Court found no error in the trial court not elaborating on the elemental instruction, but found its response well within the trial court’s sound discretion. Specifically, the Court found that (1) the jury’s question did not reflect a fundamental misunderstanding of a legal element of the offense; (2) the original instructions properly stated the applicable law and adequately answered the question; and (3) the response of the trial court was essentially as defense counsel requested.

Chase also argued that there was insufficient evidence to prove he made a credible threat as defined in CRS § 18-9-111(4)(c)(II) and to prove he made repeated communications in connection with the threat as required under CRS § 18-9-111(4)(b)(II). The Court disagreed, finding the evidence more than sufficient to find the e-mails, with their implicit and explicit threats, to cause a reasonable person to be in fear for his or her safety or the safety of other persons. It also found that reading the six e-mails in one sitting does not mean they were not repeated communications.

Chase contended that the trial court gave an incorrect mens rea instruction to the jury. The Court disagreed. Because no contemporaneous objection to the instruction was made, it was reviewed for plain error. The instruction tracked the language of CRS § 18-9-111(4)(b)(II) and the Court perceived no error.

Chase argued that CRS § 18-9-111(4)(b)(II) was unconstitutional as applied to him because it violated his First Amendment and Equal Protection Clause rights. The Court disagreed. Speech that contains “true threats” may be regulated by the government. The jury found that Chase’s e-mails were true threats and, based on the Court’s independent review of the record, it agreed.

Finally, Chase argued that because his conduct fell within the ambit of the misdemeanor harassment statute, convicting him as a felon violated his equal protection rights. The Court disagreed. Different statutes proscribing the same criminal conduct with disparate criminal sanctions violate equal protection principles. The two statutes here, however, proscribe different criminal conduct. Specifically the felony stalking statute requires repeated communications in connection with a credible threat, whereas the misdemeanor statute requires only one communication by use of a computer in a manner intended to harass or threaten bodily injury or property damage. The conduct is related, but not identical.

Summary and full case available here.

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Colorado Court of Appeals: Plain Language of C.R.S. § 18-1.3-202 Allows Incarceration for Each Specific Grant of Probation

March 7, 2013 by Leave a Comment

The Colorado Court of Appeals issued its opinion in People v. Gravina on Thursday, February 28, 2013.

Deferred Judgment and Sentence—Sexual Exploitation of a Minor—CRS § 18-1.3-202.

Defendant appealed the trial court’s judgment revoking his deferred judgment and sentence, entering a judgment of conviction, and sentencing him for the crime of sexual exploitation of a minor. The judgment and sentence were affirmed.

In December 2010, defendant pleaded guilty to sexual exploitation of a child, a class 5 felony, for possessing nude photographs of his 17-year-old girlfriend. Pursuant to the plea agreement, the trial court granted defendant a deferred judgment and sentence for four years. Defendant agreed to complete Sex Offender Intensive Supervision Probation (SOISP) and other conditions, one of which was that he could not have “possession or have any contact with any form of . . . [m]aterial that contains nudity, sexual themes, and sexually explicit or violent images.”

In February 2011, defendant’s probation officer searched defendant’s house. She found a Hooters calendar and aMaxim magazine. She also found photographs of defendant with a naked woman and nine pornographic movies. This resulted in defendant being removed from his treatment program.

After a hearing, the trial court found defendant in violation of his probation and revoked his deferred judgment and sentence, and sentenced him to five years of SOISP. In addition, he was to serve ninety days in jail, with sixty days suspended and credit for one day served.

Defendant contended it was error to commit him to ninety days in jail after he had already been committed to ninety days in jail as a condition of his initial probation, because CRS § 18-1.3-202 allows only an aggregate of ninety days in jail as a condition of probation for any single conviction. The Court of Appeals disagreed. The Court found the plain language of CRS § 18-1.3-202 to allow a trial court to include as a condition of probation a commitment to jail for up to the maximum number of days permitted by statute. The ninety-day limit applies to each specific grant of probation and not to the sentencing for the underlying crime.

Defendant also argued it was error to revoke his deferred judgment because the terms of his probation were unconstitutionally vague as applied to the magazine and calendar, and the prosecution failed to prove that he knowingly possessed the movie and photos. The Court found no error. Defendant’s probation prohibited him from possessing “sexually oriented or sexually stimulating material.” Though neither the calendar nor the magazine was part of the record, the Court presumed the trial court was correct that they were sexually oriented or stimulating within the meaning of the probation condition. As for proving “knowing” possession, the Court found the record supported such a finding.

Summary and full case available here.

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Colorado Court of Appeals: Sex Offender Convicted of Class 3 Felony or Higher Must Receive Minimum of 20 Years’ Probation; Trial Court Has No Discretion to Terminate Probation Early

March 6, 2013 by Leave a Comment

The Colorado Court of Appeals issued its opinion in People v. Dinkel on February 28, 2013.

Probation—Sex Offender—Sexual Assault—Child Under 15.

Defendant appealed the district court’s order denying his motion to terminate his probation. The order was affirmed.

In 2002, defendant pleaded guilty to sexual assault on a child under the age or 15 by a person in a position of trust, a class 3 felony. The trial court sentenced him to an indeterminate twenty-year-to-life term of sex offender intensive supervision probation (SOISP). In 2010, the trial court granted defendant’s request to modify his probation from SOISP to “regular Sex Offender Supervision.” In 2011, the trial court denied defendant’s request to terminate his probation in its entirety.

Defendant contended that the trial court had discretion under § 18-1.3-204(4)(a) of the Sex Offender Lifetime Supervision Act (Act) to reduce or increase a term of a sex offender’s probation, and its discretion is not limited by the provisions of §§ 18-1.3-1004(2)(a) and -1008(2) of the Act. Under the plain language of the Act, however, a sex offender who is convicted of a class 3 felony and sentenced to probation must receive a minimum of twenty years of probation. The Act has no provision permitting discharge of the sex offender’s probationary sentence before the twenty-year review. Thus, the district court did not have discretion to terminate defendant’s probation until he completed at least twenty years of the sentence.

Summary and full case available here.

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Colorado Court of Appeals: Trial Court Abused Its Discretion by Ordering Closure of Court During Testimony of Undercover Police Officers

March 5, 2013 by Leave a Comment

The Colorado Court of Appeals issued its opinion in People v. Hassen on Thursday, February 28, 2013.

Closed Courtroom—Public Trial.

Defendant Omer Hassen appealed his criminal conviction following a jury trial, along with his sentence. The judgment was reversed and the case was remanded for a new trial.

During trial, the prosecution requested that the courtroom be closed during the testimony of two police officers. The prosecution explained that the witnesses were working undercover at the time of trial and expressed concerns that a spectator might recognize them as police officers. Hassen objected, contending the trial court abused its discretion when it closed the courtroom during the testimony of the two officers. However, the trial court granted the prosecution’s request and excluded the public.

Criminal defendants have a right, guaranteed by both the U.S. and Colorado Constitutions, to a public trial. Here, the trial court failed to articulate an overriding interest that would support the total closure of the courtroom, to make findings as to why Hassen’s presence in the courtroom was a risk, to consider less restrictive alternatives to total closure, and to make any findings to support the closure. Therefore, the trial court abused its discretion in ordering the total closure of the courtroom during the testimony of the two undercover police officers.

Summary and full case available here.

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Colorado Court of Appeals: Defendant Who Entered Guilty Plea Waived Right to Appeal Procedural Defect

March 5, 2013 by Leave a Comment

The Colorado Court of Appeals issued its opinion in People v. Garcia on Thursday, February 28, 2013.

County Court—Re-Filing Complaint—Jurisdiction—Statement of Good Cause—Crim.P. 5(a)(4)(VII).

Defendant appealed the order of the district court concluding it had jurisdiction to accept his guilty plea. The order was affirmed.

On August 28, 2008, the People filed a complaint against defendant in Alamosa County Court, alleging assault in the second degree. The complaint was dismissed after the prosecution was unable to produce witnesses for a preliminary hearing. On December 12, 2008, the People re-filed the complaint in Alamosa County Court. Defendant waived his right to a preliminary hearing, and on April 6, 2009, he pleaded guilty to felony menacing in Alamosa District Court.

Defendant argued that the prosecution was not permitted to re-file the charges in county court and, alternatively, that failure to include a statement of good cause with the re-filing of felony criminal charges in county court pursuant to Crim.P. 5(a)(4)(VII) created a jurisdictional bar to his prosecution. First, Crim.P. 5(a)(4)(VII) now authorizes the re-filing of charges in county court. Next, the prosecutor’s failure to file a statement of good cause was not a jurisdictional defect but a procedural defect, which defendant waived when he pleaded guilty.

Summary and full case available here.

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Tenth Circuit: Disputed Issues of Material Fact Exist on Plaintiff’s Fourth Amendment Excessive Force Claim

March 4, 2013 by Leave a Comment

The Tenth Circuit issued its opinion in Becker v. Bateman on Wednesday, February 27, 2013.

Plaintiff-Appellant David Becker was pulled over by Defendant-Appellee Officer Jason Bateman in a parking lot in Heber City, Utah. The Officer suspected Mr. Becker was intoxicated. A confrontation ensued that ended in Becker being thrown to the ground and suffering a severe traumatic brain injury. Becker brought suit against Officer Bateman, the Heber City Chief of Police in his official capacity, and Heber City under 42 U.S.C. §1983, alleging Officer Bateman used excessive force in violation of the Fourth Amendment. The district court granted the defendants’ motion for summary judgment, concluding Officer Bateman did not violate Becker’s constitutional rights. Becker appealed.

Officer Bateman

In reviewing the grant of summary judgment to Officer Bateman, the Tenth Circuit declined to consider whether the district court erred in concluding no constitutional violation occurred and instead addressed whether the rights at issue were clearly established at the time of the alleged violation. To overcome Officer Bateman’s defense of qualified immunity, Becker had to demonstrate it was clearly established that Officer Bateman’s use of force was excessive.

The Tenth Circuit held that Becker failed to carry this burden. The holding in Novitsky v. City of Aurora, 491 F.3d 1244, 1255–56 (10th Cir. 2007), indicates there was no clearly established law as of 2007 regarding the appropriate level of force that may be used to arrest a potentially intoxicated person during a stop. Because the conduct in Becker’s complaint took place in 2005, Becker cannot carry his burden requiring him to demonstrate the rights at issue were clearly established at the time of the alleged violation.

City Defendants

“A plaintiff suing a municipality under section 1983 for the acts of one of its employees must prove: (1) that a municipal employee committed a constitutional violation, and (2) that a municipal policy or custom was the moving force behind the constitutional deprivation.” Myers v. Okla. Cnty. Bd. of Cnty Comm’rs, 151 F.3d 1313, 1317 (10th Cir. 1998).

Here, the relevant facts are controverted, and the evidence construed in the light most favorable to Becker would establish a violation of his Fourth Amendment rights. That is, reasonable jurors could conclude Becker was not resisting arrest at the time he was taken to the ground by Officer Bateman. Accordingly, reasonable jurors could also find that Becker did not pose a threat to the safety of Officer Bateman. Because there exist disputed issues of material fact which, when construed in the light most favorable to Becker, establish Officer Bateman used excessive force, the district court erred in concluding as a matter of law Officer Bateman’s actions did not violate Becker’s Fourth Amendment rights.

AFFIRMED in part, REVERSED in part, and REMANDED to the district court for further proceedings consistent with this opinion.

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Tenth Circuit: Use of Juvenile Conviction for Sentence Enhancement Under ACCA Affirmed

February 13, 2013 by Leave a Comment

The Tenth Circuit published its opinion in United States v. Rich on Monday, February 11, 2013.

Defendant Paul Everett Rich, III, pled guilty to one count of felon in possession of a firearm and ammunition. Because he had been convicted of three predicate offenses, he qualified for enhanced punishment under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), and was sentenced to the mandatory minimum of 180 months’ imprisonment. Rich appealed the sentencing enhancement claiming: 1) his juvenile adjudication was “dismissed” by Oklahoma courts and should not be counted as a prior conviction under the ACCA; and 2) the ACCA violated substantive due process by considering these older, juvenile adjudications.

The Armed Career Criminal Act provides enhanced sentences for a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) who has three prior 3“violent felony” or “serious drug offense” convictions. 18 U.S.C. § 924(e)(1). The ACCA defines “conviction” as including a finding that a person has committed an act of juvenile delinquency involving a violent felony.

Rich asserts that his juvenile adjudication cannot qualify as a predicate offense under the ACCA because a state court judge entered an order “dismissing” his juvenile case, which he contended rendered “the ‘finding’” that he committed an act of juvenile delinquency a nullity. The Tenth Circuit diagreed. In the absence of evidence to the contrary, the decision of an Oklahoma court to “dismiss” a juvenile case after adjudication meant nothing more than it was terminating its jurisdiction. As Rich presented no convincing evidence that “dismissal” meant something different, the Tenth Circuit rejected his argument.

Alternatively, Rich arguee that the ACCA violated his Fifth Amendment rights. He contended the sentencing enhancement deprived him of substantive due process because it placed no limits on the age of predicate convictions. Because due process requires only that a sentencing scheme be rational, United States v. Bredy, 209 F.3d 1193, 1197 (10th Cir. 2000), and because the Tenth Circuit could not say Congress’s decision to allow the use of these older convictions shocks the conscience, the Court concluded Rich’s substantive due process rights were not violated.

AFFIRMED.

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Tenth Circuit: Bar on Reviewing Fourth Amendment Violations Applies to 28 U.S.C. § 2255 Motions

February 7, 2013 by Leave a Comment

The Tenth Circuit published its opinion in United States v. Lor on Tuesday, February 5, 2013.

A Wyoming Highway Patrol trooper stopped the defendant, Lee Vang Lor. for speeding in March 2007. After gaining consent to search the vehicle, the trooper found methamphetamine. The district court denied Lor’s motion to suppress the methamphetamine, and he entered a conditional guilty plea to one count of possessing methamphetamine with intent to distribute and one count of conspiring to do the same.

After the denial of the suppression motion was affirmed, Lor filed a pro se petition to vacate his sentence under 28 U.S.C. § 2255 on the basis of newly discovered evidence. The new evidence was that the Wyoming Highway Patrol terminated the trooper who stopped Lor because the trooper called in a false dispatch report after Lor’s arrest but before his suppression hearing. Lor argued that “he had no full and fair opportunity to litigate his Fourth Amendment claim because he did not have ‘crucial evidence needed to impeach the Government’s sole witness to establish reasonable suspicion.’”

Because the Fourth Amendment exclusionary rule is for deterrent purposes, the Tenth Circuit has extended the U.S. Supreme Court’s Stone v. Powell bar on reviewing Fourth Amendment violations in habeas proceedings to § 2255 motions, when the defendant had a full and fair opportunity to litigate his Fourth Amendment claim at trial and on direct appeal. “Absent ineffective assistance of counsel or government concealment, a defendant cannot claim that the mere existence of undiscovered material evidence deprived him of an opportunity to litigate his claim.”

Lor made no ineffective assistance of counsel claim and there was no evidence that the government withheld the potentially impeaching evidence as the trooper was not put on paid leave until four months after Lor’s suppression hearing. Additionally, the trooper had not made the false report in the unrelated case at the time of Lor’s stop and search, so it would have had no affect on his actions during the search. The court affirmed the denial of § 2255 relief.

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Colorado Court of Appeals: Although Constitutional Confrontation Rights Violated, Error was Harmless Beyond a Reasonable Doubt

February 4, 2013 by Leave a Comment

The Colorado Court of Appeals issued its opinion in People v. Houser on Thursday, January 31, 2013.

Patronizing a Prostituted Child—Affirmative Defense—Reasonable Belief in Age Defense—Confrontation Rights—Cross-Examination—Plea Agreement—Jury Instruction—Lesser-Included Offense.

Defendant appealed the judgment of conviction entered on a jury verdict finding him guilty of patronizing a prostituted child. The judgment was affirmed and the case was remanded for correction of the mittimus.

A.J., age 16, was arrested in Denver and charged with prostitution, soliciting for the purpose of prostitution, and possession of a controlled substance. A.J. told police that the night before her arrest, she had gone to defendant’s home in Douglas County, where he paid her $240 to engage in sexual acts with him. Based on A.J.’s statements, defendant was charged in Douglas County with patronizing a prostituted child.

Defendant first contended that the trial court erred by precluding him from raising the defense that he reasonably believed A.J. was at least 18 years old. However, CRS § 18-7-407 prevents a defendant from offering a reasonable belief in age defense to a charge of patronizing a prostituted child. Therefore, the court did not err in this regard.

Defendant also contended that the trial court violated his confrontation rights by precluding cross-examination of A.J. on the details of her plea agreement, her continued prostitution, and the outstanding warrant. The jury heard only that A.J. had been arrested, agreed to plead guilty, and provided information to police. The disparity between the originally charged class 3 felony (drug possession) and the class 3 misdemeanor (prostitution) to which A.J. pleaded was likely to cause an average juror to infer that she had received significant benefit from testifying. Therefore, although the court committed constitutional error in limiting cross-examination on the plea agreement, the overwhelming evidence of defendant’s guilt rendered this error harmless beyond a reasonable doubt. Further, the exclusion of evidence of the outstanding warrant against A.J. and of her continued prostitution was harmless beyond a reasonable doubt for the same reasons.

Defendant further argued that the trial court’s instruction defining “prostitution by a child” was erroneous. The definitional instruction substantially followed the statutory language, and it was not error that the instruction provided multiple ways by which an act could constitute “prostitution by a child.” Defendant’s e-mails were sufficient to support a jury finding to this effect. Therefore, the trial court’s definitional instruction did not constitute plain error.

Defendant also challenged the trial court’s failure to give his tendered jury instruction on the lesser-included offense of attempt. However, given the definition of “prostitution by a child,” the evidence would not have permitted the jury to acquit defendant of patronizing a prostituted child while convicting him of the lesser-included attempt offense. Therefore, the trial court properly rejected defendant’s attempt instruction.

Summary and full case available here.

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HB 13-1020: Developing Standards and Protocols for Collection and Processing of Evidence of Sexual Assault

January 31, 2013 by Leave a Comment

On January 9, 2013, Rep. Frank McNulty and Sen. Ellen Roberts introduced HB 13-1020 - Concerning Evidence Collected in Connection with a Sexual Assault. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill requires the executive director of the department of public safety to adopt rules concerning forensic medical evidence of a sexual assault (forensic evidence) collected by law enforcement agencies. The rules shall include:

  • Standards for when forensic evidence must be submitted by law enforcement agencies to the Colorado bureau of investigation or another accredited crime laboratory (laboratory); and
  • Time frames for when the forensic evidence must be submitted, analyzed, and compared to DNA databases.

The bill requires the consent of the victim prior to the release of forensic evidence following disclosure of the purpose for the release and allows the victim to withdraw consent.

To resolve the backlog of unanalyzed forensic evidence, the bill requires:

  • Law enforcement agencies to submit to the Colorado bureau of investigation (CBI) an inventory of all unanalyzed forensic evidence in active investigations that meets the standard for mandatory submission; and
  • The CBI to submit a plan to analyze all of the forensic evidence inventories by law enforcement agencies.

A law enforcement agency may develop its own plan to analyze forensic evidence if the evidence will be analyzed by June 30, 2014. The bill is assigned to the Judiciary and Appropriations Committees.

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Tenth Circuit: Hearsay Evidence at Supervised Release Revocation Hearing Properly Admitted for Sentencing Purposes

January 30, 2013 by Leave a Comment

The Tenth Circuit published its opinion in United States v. Ruby on Tuesday, January 29, 2013.

Joey Ruby was on supervised release following a conviction for being a felon in possession of a gun. One of the conditions of his supervised release was that Ruby not commit any other crimes. While on supervised release, Ruby was convicted of third-degree assault in Colorado state court. As a result, the district court revoked Ruby’s release and sentenced him to eighteen months’ imprisonment.  He appealed the sentence on the grounds that the district court erred in considering hearsay testimony at sentencing from three witnesses to the assault.

Federal Rule of Criminal Procedure 32.1(b)(2)(C) provides that at a revocation hearing, the defendant must have “an opportunity . . . to question any adverse witness unless the court determines that the interest of justice does not require the witness to appear.” This means that a court at a revocation hearing may consider hearsay evidence as long as it makes the necessary “interest of justice” determination. Ruby argued the court did not comply with Rule 32.1’s procedures and then compounded the mistake by basing his sentence on unreliable hearsay testimony.

Rule 32.1 was enacted to codify due process guarantees that apply to revocation hearings. See Curtis v. Chester, 626 F.3d 540, 545 (10th Cir. 2010). In particular, the rule was designed to ensure at revocation hearings the ability of defendants to an independent judicial officer and the right to adversary proceedings. Unlike at a criminal trial where the Federal Rules of Evidence limit the types of admissible evidence, at a sentencing hearing the court can have access to any relevant information, as long as it adheres to a preponderance of the evidence standard.

Because all the documents at the hearing were based on the post-accident police report, because Ruby did not even raise in the district court any hearsay concerns, and because the corroborating statements of three relatively neutral witnesses helped establish the reliability of the victim’s statement to the police officer, the Tenth Circuit rejected Ruby’s challenge to the evidence offered at sentencing.

The Tenth Circuit concluded the district court did not err in considering the testimony, and AFFIRMED the district court’s sentence.

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Colorado Court of Appeals: Juvenile Adjudications in a Prosecution Witness’s Criminal History are Discoverable and Must Be Disclosed, Therefore Trial Court Erred in Finding Otherwise

January 22, 2013 by Leave a Comment

The Colorado Court of Appeals issued its opinion in People v. Corson on Thursday, January 17, 2013.

Crim.P. 35(c)—Discovery—Evidence—Juvenile Adjudication—Witness—Non-Disclosure—Involuntary Guilty Plea—Exculpatory Evidence—Ineffective Counsel.

Defendant David Corson appealed the district court’s order denying his Crim.P. 35(c) motion for post-conviction relief, which alleged that the nondisclosure of the complaining witness’s juvenile adjudications rendered his plea invalid and his counsel ineffective. The order was reversed and the case was remanded.

In 2001, Corson worked as a substance abuse counselor at a juvenile facility. K.B., a 17-year-old resident of the facility, alleged that Corson and she had engaged in a sexual relationship while she resided at the facility. After Corson pleaded guilty to sexual assault on a child by one in a position of trust, which was made in exchange for dismissal of the pattern of abuse count, Corson discovered evidence showing K.B. had previously made false allegations of sexual assault and had resulting juvenile adjudications for false reporting that the prosecution had not disclosed to the defense.

Corson contended that the district court erred in denying his motion, asserting that his guilty plea was unintelligent and involuntary because (1) the prosecution failed to comply with its discovery obligations, and (2) the prosecution made an affirmative misrepresentation regarding the existence of exculpatory evidence that induced this plea. He also contended that the prosecution’s nondisclosure of exculpatory evidence and its affirmative misrepresentation concerning its existence caused defense counsel to erroneously assess the case, rendering counsel ineffective. It is undisputed that the prosecution did not disclose to Corson evidence regarding K.B.’s juvenile adjudications. Because juvenile adjudications in a prosecution witness’s criminal history are discoverable and must be disclosed as part of the prosecution’s discovery obligations, the trial court erred in finding otherwise. Therefore, the trial court’s order was reversed and the case was remanded for the court to reevaluate Corson’s motion.

Summary and full case available here.

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