February 25, 2017

Colorado Supreme Court: Total Refusal of Sex Offender Treatment Based on Fifth Amendment is Prohibited

The Colorado Supreme Court issued its opinion in People v. Ruch on Monday, May 16, 2016.

Fifth Amendment—Probation Revocation.

This case required the Supreme Court to determine whether the trial court properly revoked defendant’s probation for, among other things, refusing to enroll or participate in sex offender treatment based on his concern that in the course of such treatment, he would have been compelled to incriminate himself in violation of the Fifth Amendment. The Court perceived no Fifth Amendment violation here, where the trial court revoked defendant’s probation based on his total refusal to attend treatment. In these circumstances, defendant’s purported invocation of his Fifth Amendment rights was premature and amounted to a prohibited blanket assertion of the privilege. Accordingly, the Court held that the trial court properly revoked Ruch’s probation based on his refusal to attend treatment.

Summary provided courtesy of The Colorado Lawyer.

Tenth Circuit: Defendant’s Testimony of Coercion Tells Only Half the Story so Polygraph Evidence Admissible in Rebuttal

The Tenth Circuit Court of Appeals issued its opinion in United States v. Tenorio on Tuesday, December 29, 2015.

Daniel Tenorio’s 16-year-old niece reported that he had touched her intimately, so the Bureau of Indian Affairs began investigating him. Special Agent Travis LeBeaux interviewed the niece and other family members about the abuse, and later interviewed Tenorio, who denied the allegations. Agent LeBeaux asked Tenorio to take a polygraph, and he agreed, stating he had nothing to hide. Tenorio read and signed the consent, and FBI Agent Jennifer Sullivan administered the polygraph. She suspected he was untruthful and followed up with confrontational questions. Tenorio eventually confessed and wrote an apology letter to the victim, which included such statements as “I should not have grabbed her breast it was wrong,” and “I should not have grabbed her ass.” He was indicted on two counts of knowingly engaging in sexual contact.

Tenorio moved to suppress his confession as involuntary, but the district court denied his motion. Prior to trial, the government filed a motion in limine seeking to introduce evidence of the polygraph. Tenorio responded by moving to prevent admission of the test and results. The district court reserved a final ruling on the motion, warning that testimony regarding the polygraph would likely be overly prejudicial but noting it may revisit the issue depending on Tenorio’s testimony. During trial, Tenorio’s attorney questioned him about the apology letter, and Tenorio repeatedly claimed he only wrote down what the FBI agent told him to write. He also claimed he could not understand why the agent didn’t believe him. In response to the testimony, the government requested to be allowed to question Tenorio about taking and failing the polygraph. The district court found that Tenorio had opened the door to such questioning and allowed limited questioning regarding the voluntariness of the test. The court gave a limiting instruction at the close of the trial. Tenorio was convicted on both counts and appealed.

Tenorio contended the district court erred by admitting prejudicial evidence in violation of FRE 403 because the court did not weigh the prejudicial effect of the evidence. The Tenth Circuit disagreed. The Tenth Circuit relayed the history of the admissibility of polygraph evidence, remarking that United States v. Hall, 805 F.2d 1410 (10th Cir. 1986), set forth a per se rule that polygraphs are not admissible to show truthfulness. The Tenth Circuit noted the evolution of the rule following Daubert, but found that the rule does not apply when polygraphs are not admitted as evidence of truthfulness. The Tenth Circuit held in Hall and has continued to hold that when a defendant opens the door, evidence regarding polygraphs can be admitted as rebuttal evidence: “When a defendant says he was coerced but only tells half the story, rebuttal evidence necessarily impacts the credibility of that defendant’s testimony.” In this case, Tenorio opened the door to the polygraph questioning by repeatedly expressing confusion as to why the FBI agent did not believe him. The government was allowed to admit the polygraph evidence to provide balance to Tenorio’s testimony. The Tenth Circuit found that the district court carefully considered the prejudicial effect of the evidence and limited the potential prejudice by allowing only testimony regarding the fact of the polygraph and not the results, and by giving a similar limiting instruction.

The Tenth Circuit affirmed the district court.

Colorado Court of Appeals: Prison Inmate Should Serve Consecutive County Court Sentence First

The Colorado Court of Appeals issued its opinion in People v. Valadez on April 21, 2016.

Consecutive Sentencing—Department of Corrections—Misdemeanor—County Jail.

While serving a prison sentence in the custody of the Department of Corrections (DOC), defendant committed a misdemeanor assault. The district court imposed a consecutive county jail sentence on the misdemeanor and ordered defendant to serve the remainder of his prison sentence before his jail sentence. Defendant subsequently filed a motion to amend the mittimus to reflect time served on the jail sentence so the detainer would be removed from his prison sentence. The court denied the motion.

On appeal, defendant argued that the district court erred by not ordering him to serve his jail sentence first. This pending county jail sentence created a detainer on defendant’s prison sentence that affected his parole eligibility date and his eligibility for transitional placements in the community. When a district court determines that a concurrent sentence is not warranted for a misdemeanor committed by a prisoner in a state prison facility, as here, the court must toll the prison sentence, order that the county jail sentence for the misdemeanor be served before the remainder of the prison sentence, and send a mittimus to the DOC reflecting its sentence. After fully serving the jail sentence, the prisoner must then be transferred back to the custody of the DOC to serve the remainder of his prison sentence.

The order was reversed and the case was remanded for resentencing.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Restitution Applicable When Defendant’s Conduct Caused Damage Regardless of Conviction

The Colorado Court of Appeals issued its opinion in People v. Ortiz on Thursday, April 27, 2016.

Vehicular Eluding—Victim—Restitution—Evidence—Hearsay.

After a deputy sheriff stopped defendant’s vehicle to investigate a report of shots fired by a person driving a vehicle like defendant’s, defendant sped away. The officer gave chase, bumping into defendant’s car several times before defendant stopped. The People charged defendant with a number of crimes. Defendant and the People reached a plea agreement under which defendant agreed to plead guilty to one count of aggravated driving after revocation prohibited (reckless driving) and one count of violation of a protection order and the People agreed to drop the other charges. The district court accepted the agreement and sentenced defendant. On request of the People, the court ordered restitution for the damages to the patrol car.

On appeal, defendant contended that because he did not plead guilty to an offense that specifically identified the state patrol as a victim, the state patrol was not a victim within the meaning of the restitution statutes. However, the state patrol was a victim of vehicular eluding, which was included among the charges against defendant. Therefore, it was a victim for purposes of the restitution statutes, even though defendant pleaded guilty to other charges. Accordingly, the district court did not err in allowing the state patrol to seek restitution.

Defendant also contended that the evidence was insufficient to support the restitution award because it was entirely hearsay and basing the award on hearsay violated his right to due process. The prosecution is not limited by the rules of evidence in proving an amount of restitution, and an award of restitution may be based solely on a victim’s impact statement, which is hearsay. Considered as a whole, the evidence sufficiently showed the cost of the damage and that defendant caused it. In addition, defendant’s counsel conducted thorough cross-examination about the damage to the patrol car and defendant chose not to rebut the evidence; therefore, there is no due process violation.

The order was affirmed.

Summary provided courtesy of The Colorado Lawyer.

HB 16-1393: Requiring Warrants for Testing Assault Suspects for Communicable Diseases

On March 17, 2016, Reps. Daneya Esgar & Mike Foote and Sen. John Cooke introduced HB 16-1393Concerning Procedures for Ordered Testing for Communicable Diseases. The bill was assigned to the House Judiciary Committee.

Current law provides that a person may be required to submit to a medical test for communicable diseases if the person’s or another person’s bodily fluid came into contact with another person related to a conviction or finding of probable cause related to an assault in the first, second, or third degree. This bill repeals these provisions and substitutes a provision authorizing a court to issue a search warrant for a person’s bodily fluid, thereby requiring a person to submit blood, urine, saliva, or other bodily fluid for a test for communicable disease, if probable cause is established that: (1) a person committed the crime of assault in the first, second, or third degree; and (2) the person’s or another person’s bodily fluid came into contact with any victim of the assault, peace officer, firefighter, or emergency medical care/service provider.

If the court is satisfied that there is probable cause to believe that the grounds for the application exist, the court shall issue a search warrant, which shall: (1) identify the individual who is to give bodily fluid; (2) identify the names of any persons who sought the issuance of the order; (3) identify the related criminal offense and testing procedures; (4) identify the name of the victim of the assault, or other individual who came in contact with the person’s bodily fluid; (5) include a mandate that the person shall be detained only such time as is necessary to obtain the person’s bodily fluid; and (6) include the name and signature of the judge issuing the order. The order must be executed and returned to the court within 35 days of its issuance, and the officer executing the order shall give a copy of the order to the person upon whom it is served.

Max Montag is a 2016 J.D. Candidate at the University of Denver Sturm College of Law.

Colorado Supreme Court: Criminal Defendants Have No Constitutional Right to Conduct Discovery

The Colorado Supreme Court issued its opinion in People in Interest of E.G. on Monday, April 18, 2016.

Criminal Procedure—Criminal Discovery—Constitutional Law.

The Supreme Court considered whether a trial court may order a third party to allow a criminal defendant discovery access to the third party’s home. The Court first discussed the historical underpinnings of criminal discovery, noting that there is no common law right to discovery in a criminal case. The Court then analyzed the possible sources of authority by which a trial court could grant a defendant’s discovery request for access to a private home. Finding no constitutional provision mandating such discovery, and failing to locate any authority to grant such a discovery request in Crim.P. 16 or 17, the Court concluded that the trial court lacked the authority to order the third party to allow access to her private home.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Criminal Defendant Has No Constitutional Right to Examine Victim’s Home

The Colorado Supreme Court issued its opinion in In re People v. Chavez on Monday, April 18, 2016.

Criminal Procedure—Criminal Discovery—Constitutional Law.

In this original proceeding, the Supreme Court considered whether a trial court may order a third party to allow a criminal defendant discovery access to the third party’s home. Relying on People in the Interest of E.G., 2016 CO 19, __ P.3d __, the Court concluded that the trial court had no authority to order the alleged victim to allow defendant or his representatives into her home to investigate the scene of the alleged crime.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Special Conditions in Mandatory Protection Order Upheld

The Colorado Court of Appeals issued its opinion in People v. Yoder on Thursday, April 7, 2016.

Charles Yoder was charged with several offenses in Mesa County in three cases, including possession of methamphetamine and driving after revocation prohibited. In each of the three cases, the district court issued a mandatory protection order (MPO) containing conditions against harassing witnesses, possession or consumption of controlled substances, and driving without a valid driver’s license. Two of the MPOs also prohibited possession and consumption of marijuana absent a doctor’s prescription. Defendant pleaded guilty to some of the charges and was sentenced. The district court also clarified that the conditions of the MPOs would remain in effect until defendant completed his sentences. Defendant objected to the conditions restricting marijuana use and driving without a license.

On appeal, the Colorado Court of Appeals deemed defendant’s argument that MPOs are invalid generally waived because it was not properly preserved. As to his challenge to the marijuana and driving restrictions, the court interpreted the relevant statutes and determined that although the statutes specifically reference domestic violence offenses and certain Victims’ Rights Act cases, the special conditions in MPOs are not limited to domestic violence or Victims’ Rights Act offenders. 

The court of appeals affirmed the district court.

Tenth Circuit: Sentence Upheld Because of District Court’s Detailed Findings About its Reasonableness

The Tenth Circuit Court of Appeals issued its opinion in United States v. Snowden on Friday, November 27, 2015.

Blake Snowden was a sales rep for Onyx, M.D., Inc. until his termination in August 2010. Onyx is a physician staffing agency that specializes in placing physicians in hospitals and clinics for short terms. Onyx uses a database program called Bullhorn, which it considers a competitive advantage. When Snowden was fired from Onyx, he decided to compete with Onyx in physician placement, and he obtained an Onyx executive’s password in March 2011 and used it to create his own Bullhorn account. Over the next few months, Snowden logged into Bullhorn dozens of times and copied gigabytes of data. He also intercepted emails of four Onyx executives. However, his efforts were unsuccessful; they neither benefited nor harmed Onyx’s business. When Onyx discovered the hack, the FBI traced it to a computer at Snowden’s address. Onyx’s only loss from the hack was about $25,ooo in legal fees and lost employee time related to the hack.

Snowden eventually pleaded guilty to unlawfully obtaining information from a protected computer and intercepting emails. The district court applied a 16-level enhancement based on its estimated loss of the cost of developing the database, $1.5 million, and calculated his Guidelines range as 41-51 months. However, the district court varied downward and sentenced him to 30 months. The court specifically found that it would apply a 30-month sentence no matter what, even if its Guidelines calculation was held to be incorrect on appeal.

The Tenth Circuit was skeptical about the district court’s assumption of $1.5 million in losses, although it understood the court’s reasoning. The Tenth Circuit found that had the district court limited its loss calculation to Onyx’s actual loss of approximately $25,000, the resulting Guidelines range would have been 8-14 months. However, it found any error harmless because of the district court’s detailed and unusual findings about what it considered to be a proper sentence for Snowden’s crime. The court specifically noted that it would vary upward to 30 months if the Guidelines range was too high and would vary downward to 30 months if the Guidelines range was too low. Because of these specific findings, the Tenth Circuit affirmed the district court’s sentence.

The Tenth Circuit affirmed the sentence but reversed and remanded for the correction of the restitution award to the parties’ undisputed proposed restitution amount.

Tenth Circuit: Taser is “Dangerous Weapon” Because it is Capable of Causing Serious Bodily Injury

The Tenth Circuit Court of Appeals issued its opinion in United States v. Quiver on Tuesday, November 17, 2015.

Delray Quiver and another man were intoxicated and creating a disturbance at their grandmother’s house on an Indian reservation. The grandmother called the police and Officer Friday was dispatched to the scene. The grandmother told Officer Friday that she wanted the men arrested and removed, so he tried to take them outside. However, Quiver was uncooperative, impeding Officer Friday from escorting him by the arm. Quiver tried to walk away from Officer Friday toward the road. Officer Friday tripped Quiver and pushed him face-down in the snow, and removed the prong-mode cartridge from his taser so that it could only be used in drive-stun mode. Quiver punched Officer Friday in the face, breaking his glasses, and wrestled the taser from him. Quiver tased Officer Friday on the thigh, leaving two burn marks from the prongs. The two engaged in a fistfight, which Officer Friday eventually won, and Officer Friday regained control of his taser. After arresting Quiver, Officer Friday sought medical treatment for both himself and Quiver.

Quiver pleaded guilty to forcibly assaulting, resisting, and injuring Officer Friday while he performed official duties. The probation officer recommended a four-level enhancement for use of a dangerous weapon during the assault, which the court applied. Quiver’s resulting Guidelines range was 92 to 115 months’ imprisonment, but the court varied downward to a 70-month sentence based on its view of the danger of tasers as opposed to firearms. Quiver appealed the sentence enhancement.

The Tenth Circuit evaluated the four definitions of “dangerous weapon” contained in U.S.S.G. §§ 2A2.2(b)(2) and found that the first definition applied. The Tenth Circuit found no question that a taser qualifies as a dangerous weapon, even in drive-stun mode, because it is “capable of . . . inflicting serious bodily injury,” which includes injuries causing extreme pain. The Tenth Circuit pointed out that the two burn marks on Officer Friday’s thigh were evidence of the taser’s capability of causing serious bodily injury. The Tenth Circuit rejected Quiver’s argument that the dangerous weapon must actually cause serious bodily injury, noting that there is an additional enhancement for that situation.

The Tenth Circuit affirmed the district court.

Tenth Circuit: Second or Successive § 2255 Motion Requires Showing of New Evidence or New Rule of Constitutional Law

The Tenth Circuit Court of Appeals issued its opinion in United States v. Wetzel-Sanders on Monday, November 16, 2015.

Laura Wetzel-Sanders pleaded guilty to bank robbery and was sentenced to 151 months’ imprisonment because she was deemed a career offender based on two prior convictions. She did not file a direct appeal but filed two motions for relief under § 2255. The first motion claimed a deteriorating mental condition and was dismissed as untimely and outside the scope of the court’s jurisdiction. She then filed a second § 2255 motion based on claims of ineffective assistance of counsel. The district court deemed the motion successive and filed without authorization, and dismissed it for lack of jurisdiction. Wetzel-Sanders then petitioned the Tenth Circuit to file a second or successive § 2255 motion, which the circuit denied. She filed another petition to the Tenth Circuit, which was also denied.

She then filed the present petition, joined by the government, arguing that she was sentenced based on materially incorrect information, namely that one of her prior convictions should not count toward the career offender designation because her sentence was for less than a year. The parties based their argument on the Tenth Circuit decision in United States v. Brooks, 751 F.3d 1204 (10th Cir. 2014). The district court was not convinced that Brooks applied and denied the motion but granted a certificate of appealability.

The Tenth Circuit found it a stretch to say that the instant motion was not a second or successive motion, because the same relief was sought in Wetzel-Sanders’ previous § 2255 motions. Although in the joint motion the government “waived any procedural hurdles” to § 2255 relief, the Tenth Circuit found that jurisdiction is not waivable. In order to file a second or successive § 2255 motion, Wetzel-Sanders needed to show the existence of newly discovered evidence or a new rule of constitutional law, neither of which was present. The Tenth Circuit noted that the district court should have either dismissed the petition for lack of jurisdiction or transferred it to the Tenth Circuit, but should not have decided the motion. The Tenth Circuit therefore vacated the district court’s decision for lack of jurisdiction.

The Tenth Circuit dismissed the appeal and vacated the district court’s order.

Colorado Supreme Court: Reasonable Suspicion Analysis Requires Examination of Totality of Circumstances

The Colorado Supreme Court issued its opinion in People v. Chavez-Barragan on Monday, February 29, 2016.

Fourth Amendment—Reasonable Suspicion—Traffic Stops.

The Supreme Court held that an assessment of whether a motorist’s driving gave rise to a reasonable suspicion of a violation of CRS § 42-4-1007(1)(a), which requires a vehicle to be driven entirely within a single lane “as nearly as practicable,” requires consideration of the totality of the circumstances. The Court reversed the trial court’s suppression order, which concluded the officer lacked an objectively reasonable basis to stop defendant. Defendant’s semi-truck crossed the line separating the right lane from the shoulder twice. The Court concluded that, under the circumstances, defendant’s driving gave rise to a reasonable suspicion that the statute had been violated. Therefore, the initial stop was reasonable.

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