November 1, 2014

Colorado Court of Appeals: Under Totality of Circumstances, No Error for Prosecution to Request Fifth Amendment Advisement for Defense Witness

The Colorado Court of Appeals issued its opinion in People v. Paglione on Thursday, April 24, 2014.

Theft—Fair Trial—Use Immunity.

Defendant, a mortgage broker and banker, helped the victim refinance his house to obtain cash needed to purchase a second house to use as a rental property. Later, defendant helped the victim take out a home equity loan on the rental property. The net proceeds of the home equity loan were approximately $76,000. Defendant arranged for the victim to make payments on both mortgages directly to defendant, who represented he was an agent for the mortgage lender. The victim requested statements, and defendant generated his own receipts and statements for the victim. When the victim attempted to pay the remaining balance of both loans in the amount he believed was outstanding, he discovered the mortgages had not been fully paid and reported defendant to the police for theft.

Defendant testified he had received the victim’s money from the home equity loan but did not apply it to the victim’s primary residence, claiming the victim loaned him the $76,000 in a transaction outside the home equity loan closing. Defendant claimed this loan was evidenced by a promissory note, which he was unable to produce. Defendant also testified he had paid interest to the victim and to victim’s mortgage lender. A jury found defendant guilty of theft of $20,000 or more and sentenced him to five years of probation.

On appeal, defendant claimed he was denied his constitutional rights to a fair trial and to present evidence on his own behalf. He also alleged it was error not to require the prosecutor to request use immunity for a defense witness.

At trial, defendant called to testify a former employee of the title company, who was the closer of the second loan. The prosecutor asked for a bench conference, during which he advised the court that the employee should be advised of her Fifth Amendment rights because if she testified that she notarized the loan documents, the victim and his father were prepared to testify she wasn’t there when he signed. Following additional colloquy in chambers, the court advised the closer of the possible penalties for a first-degree perjury conviction. The court offered to appoint counsel for the loan closer, and she agreed. Following consultation with the attorney, she exercised her Fifth Amendment right and refused to testify.

The Court of Appeals looked to the totality of the circumstances to determine whether the prosecution’s actions constituted substantial governmental interference with a defendant’s right to present a defense. The Court reviewed six factors and concluded that defendant had not established by a preponderance of the evidence that this perjury warning and advisement deprived him of a fair trial.

Defendant also had requested that the court grant immunity to the loan closer or, alternatively, order the prosecutor to request immunity for the loan closer pursuant to CRS § 13-90-118. The court denied the request, and the prosecutor stated it would be “inappropriate” to grant immunity. The Court agreed that only the prosecutor may request immunity for a witness and neither the court nor the defense can require the prosecutor to make such a request.

The Court reviewed and rejected a number of other arguments made by defendant concerning jury instructions, challenge for cause, juror misconduct, and cumulative error. The judgment was affirmed.

Summary and full case available here.

SB 14-193: Requiring Governmental Entity to Obtain a Warrant Before Obtaining Location Information from an Electronic Device

On April 14, 2014, Sen. Morgan Carroll introduced SB 14-193 – Concerning Conforming Colorado Law on Location Information with the Fourth Amendment as Interpreted by the United States Supreme Court in United States v. Jones. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

A United States supreme court decision held that the use of a GPS device to monitor a vehicle’s movement constituted a search requiring the government to obtain a search warrant. With certain specified exceptions, the bill prohibits a governmental entity from obtaining location information from an electronic device without first obtaining a search warrant.

If location information or evidence derived from location information is used in a court proceeding, all parties must receive a copy of the search warrant and application at least 10 days prior to the proceeding. A judge may waive the 10-day requirement in certain circumstances.

The bill is assigned to the Judiciary Committee.

Since this summary, the Judiciary Committee referred the bill, amended, to the Senate Committee of the Whole.

SB 14-190: Creating a Statewide Criminal Discovery Sharing System

On April 10, 2014, Sen. Kent Lambert introduced SB 14-190 – Concerning Criminal Discovery, and, in Connection Therewith, Creating a Statewide Discovery Sharing System, a Criminal Discovery Surcharge, Civil Immunity for District Attorneys that Make a Good-Faith Effort to Redact Information from Discovery Documents, and Making an Appropriation. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Joint Budget Committee.

In 2013, a discovery task force (task force) was convened to develop recommendations regarding criminal discovery systems and costs. The task force recommended creating a statewide discovery sharing system (system). The bill turns the task force into the discovery project steering committee (committee). The committee shall develop a request for proposal and selection process for choosing a vendor to develop the system. The committee shall make a recommendation to the Colorado district attorneys council (CDAC) regarding the vendor after the application process is complete. CDAC shall select a vendor to develop the system after the application and selection processes are complete. The committee shall develop benchmarks and contractual requirements for the project. CDAC shall enter into a contract with the selected vendor to complete the system by June 30, 2016.

The general assembly shall appropriate moneys to the judicial department for allocation to CDAC for development and maintenance of the system. The bill creates a criminal surcharge to fund the development and maintenance of the system. A $10 surcharge applies to each felony conviction, and a $5 surcharge applies to each misdemeanor conviction if the defendant is represented by private counsel or appears pro se.

The bill gives civil immunity to district attorneys who make a good-faith effort to redact all information legally required to be redacted and provide discovery documents that contain information that should have been redacted.

The bill is assigned to the Judiciary Committee.

Since this summary, the Judiciary Committee referred the bill, amended, to the Finance Committee.

Colorado Court of Appeals: Defendant’s Successful Objection to Joinder of Two Cases at Trial Barred Joinder of Dismissal

The Colorado Court of Appeals issued its opinion in People v. Marshall on Thursday, April 10, 2014.

Joinder—Objection—Waiver Dismissal.

A grand jury indicted defendant in November 2009 for securities fraud, theft, conspiracy, and organized crime. In February 2012, the prosecution filed a second case by information that contained numerous similar counts. The prosecution moved to join the two cases, but defendant objected, and the court denied the prosecution’s motion. A jury acquitted defendant in the first case. He then asked the court to dismiss the second case because the charges in that case should have been joined with the first case. The court agreed with defendant’s argument and granted his request.

The People argued on appeal that the trial court erred in dismissing the second case against defendant. Defendant’s successful objection to the prosecution’s motion to join the two cases barred his subsequent motion to dismiss the second case, because it was not joined with the first. Therefore, defendant waived his joinder rights under Crim.P. 8(a)(1) and CRS § 18-1-408(2). The judgment dismissing this case was reversed, and the case was remanded to the trial court to reinstate the charges against defendant.

Summary and full case available here.

Tenth Circuit: In Consolidated Appeal, Trial Court’s Rulings Upheld as to All Defendants

The Tenth Circuit Court of Appeals issued its opinion in United States v. Morgan on Wednesday, April 8, 2014.

Tracy Morgan, Killiu Ford, and Augustus Sanford (“Defendants”) concocted an elaborate plan to rob a man, Mr. Armendariz. The plan was carried out, and Mr. Armendariz was bound while Ford and two other men questioned him about where he kept his money. His wife was confronted separately, and, after Morgan put a gun to her 3-year-old’s head, the wife gave Morgan the location of the money. Morgan found about $30,000, and the conspirators left. The three co-conspirators had arguments about how to split the money. Eventually they were arrested and tried.

All three defendants were indicted and tried together. A jury convicted them of kidnapping, conspiracy to kidnap, and possession of a firearm during a crime of violence. Each defendant brought a separate appeal, raising overlapping but not identical issues. After consideration of all the separate and collective appeals, the Tenth Circuit affirmed on all counts.

SB 14-163: Revising Statutes Related to Sentencing of Persons Convicted of Drug Crimes to Conform to SB 13-250

On March 20, 2014, Sen. Pat Steadman introduced SB 14-163 – Concerning Clarifying Changes to Provisions Related to the Sentencing of Persons Convicted of Drug Crimes. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

In 2013, the general assembly adopted SB 13-250, which created a new sentencing structure for drug crimes. The bill makes clarifying and conforming changes to the statutes based on last year’s legislation.

On March 26, the Judiciary Committee approved the bill and moved it to the Senate Consent Calendar for consideration on 2nd Reading.

Since this summary, the bill passed the Senate on second and third readings, with amendments on second reading. The bill was introduced in the House and assigned to the Judiciary Committee.

HB 14-1266: Adjusting Penalties for Certain Value-Based Crimes

On February 4, 2014, Rep. Beth McCann and Sen. Linda Newell introduced HB 14-1266 – Concerning the Penalties for Certain Value-Based Offenses. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Recently the penalties for theft changed based on the value of the loss. As introduced, the bill changes the penalties for criminal mischief, fraud by check, defrauding a secured creditor, and unauthorized use of a financial transaction device and computer crime. The changes create new threshold loss levels for a full range of penalties from a class 2 felony down to a petty offense or a low level misdemeanor.

On March 11, the Judiciary Committee amended the bill and referred it to the Appropriations Committee.

HB 14-1273: Repealing and Reenacting Certain Statutory Provisions Regarding Human Trafficking

On February 6, 2014, Rep. Beth McCann and Sen. Linda Newell introduced HB 14-1273 – Concerning Human Trafficking. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill repeals and reenacts, with amendments, existing provisions concerning human trafficking.

A person who knowingly sells, recruits, harbors, transports, transfers, isolates, induces, entices, provides, receives, or obtains by any means another person for the purpose of coercing the other person to perform labor or services commits human trafficking for involuntary servitude. Human trafficking of an adult for involuntary servitude is a class 3 felony. Human trafficking of a minor for involuntary servitude is a class 2 felony.

A person who knowingly sells, recruits, harbors, transports, transfers, isolates, induces, entices, provides, receives, or obtains by any means a person for the purpose of coercing the person to engage in commercial sexual activity commits human trafficking for sexual servitude. Human trafficking of an adult for sexual servitude is a class 3 felony. Human trafficking of a minor for sexual servitude is a class 2 felony.

In any prosecution for human trafficking of a minor for sexual servitude, it is not a defense that:

  • The minor consented to being sold, recruited, harbored, transported, transferred, isolated, induced, enticed, provided, received, obtained, or maintained by the defendant for the purpose of engaging in commercial sexual activity;
  • The minor consented to participating in commercial sexual activity; or
  • The defendant did not know the minor’s age or reasonably believed the minor to be 18 years of age or older, or that the minor or another person represented the minor to be 18 years of age or older.

Human trafficking of a minor for sexual servitude is a “sex offense against a child” for the purposes of the statute of limitations. This means that there is no limit to the period of time within which criminal proceedings may be initiated against an offender.

The bill creates the Colorado human trafficking council (council) within the department of public safety (department). The bill establishes the membership of the council and sets forth the duties of the council.

In any criminal prosecution for a human trafficking offense or for any offense relating to child prostitution, evidence of specific instances of the victim’s or a witness’s prior or subsequent sexual conduct, or opinion evidence of the victim’s or a witness’s sexual conduct, or reputation evidence of the victim’s or a witness’s sexual conduct, or evidence that the victim or a witness has a history of false reporting of sexual assaults is to be offered at trial, may only by admitted under specific circumstances.

For a conviction for human trafficking for involuntary servitude or for human trafficking for sexual servitude, the court shall order restitution, if appropriate, even if the victim is unavailable to accept payment of restitution. If the victim is deceased or unavailable for 5 years after the date of the restitution order, the defendant shall pay the ordered restitution to the prostitution enforcement cash fund.

The bill makes conforming amendments.

On March 11, the Judiciary Committee amended the bill and referred it to the Appropriations Committee; the bill is scheduled to be heard by the Appropriations Committee on Friday, April 4 at 7:30 a.m.

Colorado Court of Appeals: Defendant’s Tattoo Evidence Relevant Under CRE 404(b)

The Colorado Court of Appeals issued its opinion in People v. Cardenas on Thursday, March 27, 2014.

Trafficking in Children—Pimping—Prostitution—Res Gestae Evidence.

The victim, a 17-year-old girl, met defendant, an 18-year-old man, at a rave. They became friends and entered into an agreement whereby defendant would post advertisements offering the victim to provide massages with the ultimate goal for the victim to engage in sexual acts for money. The jury convicted defendant of trafficking in children, pimping an adult, pimping a child, pandering a child, and inducing child prostitution.

On appeal, defendant contended that the trial court erred when it denied his motion for judgment of acquittal on the trafficking in children charge because the evidence was not sufficient to support a conviction on that charge. To prove that a defendant has violated CRS § 18-3-502(1)(a), the prosecution must establish that the defendant sold a child, exchanged a child, bartered a child, or leased a child. Here, there was no evidence that defendant facilitated the transfer of the victim’s physical or legal custody to the callers. Because the evidence in the record does not support defendant’s conviction for trafficking in children, the conviction and sentence on that charge were reversed and vacated, and the case was remanded to the trial court to enter a judgment of acquittal on that charge.

Defendant also contended that the trial court erred when it admitted evidence about his tattoo. The victim’s friend testified that she was with defendant when he got the tattoo, which occurred during the same period when the victim and the friend were engaged in defendant’s prostitution ring. The friend stated that defendant told her the “MOB” tattoo meant “money over bitches.” The prosecution argued at trial that the term “money over bitches” showed that defendant had a “calculated plan to exploit” the victim and her friend, that he “put a price tag” on them, and that the phrase was “a sex trafficker’s motto.” Thus, the tattoo evidence was relevant, it was res gestaerather than CRE 404(b) evidence, and it was not unduly prejudicial. Accordingly, the trial court did not err when it admitted evidence about defendant’s tattoo.

Summary and full case available here.

Colorado Court of Appeals: No Error to Allow Prosecution to Add Charges on Remand to Trial Court

The Colorado Court of Appeals issued its opinion in People v. Cook on Thursday, March 27, 2014.

Sexual Crimes Against Children—Amendment of Information—Rape Shield Statute—Alternative Suspect Evidence—CRE 404(b)—Continuance.

Defendant was convicted and sentenced on multiple charges of sexual crimes against children. The victims were defendant’s daughter (C.C.), the daughter of his former girlfriend (S.G.), and other unnamed children.

On appeal, defendant contended that the trial court erred in permitting the prosecution to add fourteen counts on remand following his successful appeal. The trial court had discretion to permit the information to be amended before trial, and it did not err by adding counts based on new evidence that did not exist before the first trial. Therefore, the court properly allowed the additional counts to the information.

Defendant asserted that the trial court erred in denying his motion to pierce the rape shield statute, thereby denying him the opportunity to present evidence of an alternate suspect. Where a defendant seeks to introduce alternate suspect evidence to show motive and opportunity, there must be proof that the alternate suspect committed an act directly connecting him to the crime. Where the alternate suspect evidence seeks to challenge the identity of the perpetrator, the alternate suspect’s prior act or crime must be similar to the present crime to be relevant and admissible. The trial court did not abuse its discretion in concluding that defendant’s offer of proof fits no stated exception and was not otherwise relevant to a material issue in the case.

Defendant also contended that the trial court erroneously permitted the prosecution to introduce CRE 404(b) evidence related to acts for which he had been acquitted in Boulder County. The prosecution proffered the evidence from the Boulder County case of C.C.’s interviews in 2004 and the child pornography found on defendant’s computers in Boulder, to show proof of identity, absence of mistake or accident, common plan or scheme, and also to demonstrate that the purpose of defendant’s conduct was relevant to this case. Therefore, the admission of the evidence offered by the prosecution was proper.

Defendant’s assertion that the trial court erred in denying his motion for a fourth continuance was discounted. The expert was able to complete his report, and there was no indication that defense counsel was unprepared for trial. Hence, defendant showed no actual prejudice resulting from the court’s ruling. The judgment was affirmed.

Summary and full case available here.

Colorado Court of Appeals: No Violation of Equal Protection to Charge Someone as Complicitor

On Thursday, March 27, 2014, the Colorado Court of Appeals issued its opinion in People v. Firm.

Aggravated Robbery—Complicitor—Equal Protection Clause.

On the day of the charged incident, defendant and his son went to the victims’ house to collect an unpaid debt. The victims refused to pay the debt. Defendant’s son lifted up his shirt in front of the victims to reveal that he had a gun under the shirt, and both defendant and his son threatened to kill the victims if they called the police. Defendant then took some of the victims’ personal property, ostensibly as collateral for the debt. Defendant was convicted of aggravated robbery under CRS §18-4-302(1)(b), among other crimes not relevant here.

In this appeal, defendant contended that his conviction and sentence for aggravated robbery resulted in his being denied equal protection of the law. It is not a violation of equal protection to apply CRS §18-4-302(1)(b) to a complicitor charged under that section. Further, subsections (1)(b) and (1)(c) proscribe different conduct, so defendant’s equal protection claim fails. Accordingly, defendant’s conviction and sentence did not violate the Equal Protection Clause, and the judgment was affirmed.

Summary and full case available here.

Colorado Supreme Court: Outcome-Determinative Test Mandatory in Determining if Criminal Conviction Should Be Overturned Based on Peremptory Challenges

The Colorado Supreme Court issued its opinion in People v. Alfaro on Monday, March 17, 2014.

Criminal Law—Jury.

The People petitioned for review of the court of appeals’ judgment in People v. Alfaro, No. 06CA314 (Colo.App. May 12, 2011) (not published pursuant to CAR 35(f)), which reversed defendant’s various convictions for murder, burglary, and attempted kidnapping. On direct appeal, the court of appeals found that the trial court erred by allowing defendant fewer peremptory challenges than authorized by statute and rule. Although defendant failed to object to the trial court’s interpretation of the applicable statute, the court of appeals found that the trial court’s error rose to the level of plain error, and ordered defendant’s convictions reversed and his sentences vacated.

The Supreme Court reversed the court of appeals’ judgment. The Court found that the court of appeals did not apply the outcome-determinative standard, which the Court’s holding in People v. Novotny, 2014 CO 18, makes mandatory for good-faith errors impairing a defendant’s capacity to shape the jury through peremptory challenges.

Summary and full case available here.