July 4, 2015

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.

Colorado Court of Appeals: Eyewitness “Showup” Identification Not Inherently Impermissible

The Colorado Court of Appeals issued its opinion in People v. Theus-Roberts on Thursday, March 26, 2015.

Eyewitness—Identification—Jury Instructions—Witness Credibility—Expert Testimony—Lay Witness—Complicity.

According to the prosecution’s evidence at trial, Theus-Roberts and another man, Parrish, got into a cab and told the driver to take them to a designated location. When they got there, Parrish got out. Theus-Roberts had the driver take him to several other locations before returning to the initial destination approximately an hour later, running up a $90 fare. Theus-Roberts gave the driver $80 in cash, told him he would need to get the rest from his apartment, and walked away. Eventually, a man—identified by the driver at trial as Theus-Roberts—came to the driver’s window, aimed a gun at the driver, demanded and took the $80, and shot the driver in the chest. The driver fled and called 911. A jury convicted Theus-Robert of attempted first-degree murder, first-degree assault, aggravated robbery, second-degree assault, and two crime of violence sentence enhancers.

On appeal, Theus-Roberts contended that the trial court erred by denying his suppression motion and allowing an eyewitness, R.M., to give testimony that was the product of an unduly suggestive out-of-court showup. R.M. lived in a house across the street from where the shooting occurred and looked out her window when she heard a loud noise. She saw a “black male wearing dark clothing and carrying a black bag next to the taxi cab.” The man “walked away from the scene at a quick pace southbound through the alley.” At the scene of the crime, R.M. identified the black bag and thereafter identified Theus-Roberts as the shooter. Under the totality of the circumstances in this case, the identification was not unreliable. Therefore, the trial court did not err by denying the suppression motion.

Theus-Roberts also argued that the trial court erred in refusing to give his three jury instructions that would have provided guidance on evaluating the reliability of eyewitness identification testimony. Here, the jury received the pattern instruction on the credibility of witnesses instruction. Therefore, the trial court did not err in refusing Theus-Roberts’s additional tendered instructions.

Theus-Roberts contended that the trial court erroneously admitted irrelevant and prejudicial expert testimony from a lay witness when it allowed a police officer to testify about gunshot residue (GSR) testing and fingerprint recovery. After a forensic expert testified about the possible explanation for absence of GSR and fingerprint evidence, the police officer who ordered the testing testified as to his experience with this type of evidence. The officer was qualified by his experience and training to testify about GSR and fingerprint testing; his testimony was brief; and it was cumulative of the testimony of experts who had already testified, in detail and without objection, about why GSR or latent fingerprint tests might be negative. Therefore, any error was harmless.

Theus-Roberts further contended that the trial court erred in instructing the jury, over his objection, on complicity. However, the evidence was sufficient to permit the jury to conclude that Parrish was the shooter and that Theus-Roberts intended to—and did—aid and abet Parrish in setting up the crime. Thus, the trial court did not err in instructing the jury on complicity. The judgement was affirmed.

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

Colorado Court of Appeals: Specific Victim or Victims Must Be Named to Support Assault and Manslaughter Charges

The Colorado Court of Appeals issued its opinion in People v. Griego on Thursday, March 26, 2015.

Driving Under the Influence—Attempted Reckless Manslaughter—Attempted Second-Degree Assault—Evidence—Victim.

On December 26, 2005 and October 7, 2006, defendant was observed operating a motor vehicle while intoxicated. On both of these occasions, he was issued a summons for driving while under the influence of alcohol (DUI). Although the investigating officer provided a detailed report to the District Attorney’s Office indicating that it would not be appropriate to file any additional charges in these cases, it nevertheless charged defendant with attempted reckless manslaughter and attempted second-degree assault, both felonies. Over defendant’s objections, the trial court permitted the prosecution to present evidence under CRE 404(b) that defendant had previously been arrested for DUI six times between June 20, 1992 and September 30, 2001, which was the sole basis for the additional charges. He was convicted on both counts.

On appeal, defendant contended that the prosecution failed to present sufficient evidence to show that “another person” was put in danger by his behavior in either incident. The manslaughter and second-degree assault statutes both require a substantial risk to “another person” and the likelihood that “another person” will die or receive serious bodily injury. To secure a conviction under CRS §§ 18-3-104 and -203, therefore, the prosecution must establish that the defendant’s behavior placed a discernible person at substantial risk for likely death or serious bodily injury. It is insufficient merely to establish that the defendant placed any and all members of the public in his or her vicinity at risk. Here, there is no evidence in the record from which a reasonable jury could find that defendant’s driving on either date jeopardized or threatened any oncoming traffic or individuals. Accordingly, the trial court erred in denying defendant’s motion for a judgment of acquittal as to both counts.

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

Colorado Supreme Court: Totality of Circumstances Illustrates Miranda Waiver Knowing and Intelligent

The Colorado Supreme Court issued its opinion in People v. Thames on Monday, March 23, 2015.

Suppression Order—Knowing and Intelligent Waiver of Miranda rights—Totality of the Circumstances.

This interlocutory appeal challenged the trial court’s order suppressing statements defendant made during custodial interrogation. Investigators gave defendant an oral Miranda advisement during the interrogation. Defendant confirmed that he understood his Miranda rights and signed a written waiver form before making certain statements that the prosecution wanted to use in its case-in-chief. The trial court concluded that defendant did not knowingly and intelligently waive his Miranda rights after a speech language pathologist and audiologist testified that defendant had trouble understanding spoken paragraphs regarding abstract concepts. Under the totality of the circumstances, the Supreme Court reversed the trial court’s suppression order, holding that defendant knowingly and intelligently waived his Miranda rights.

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

Colorado Supreme Court: Nothing in Record Showed Defendant Could Read English Therefore Both Miranda Advisements Deficient

The Colorado Supreme Court issued its opinion in People v. Carrion on Monday, March 16, 2015.

Suppression Order—Inadequate Oral Miranda Advisement—Findings of Fact—Insufficient Evidence Native Spanish Speaker Could Read Written Miranda Advisement in English.

During a custodial interrogation, investigators provided Carrion, a native Spanish speaker, a written Miranda advisement in English. The Supreme Court held that the trial court’s factual findings were supported by the record and were not clearly erroneous. The trial court found that Carrion had difficulty with the English language and that there was insufficient evidence before the court that Carrion could read English. Accordingly, the trial court suppressed statements Carrion made during the custodial interrogation. Because the trial court’s factual findings were supported by the record, the Court affirmed the trial court’s suppression order.

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

Colorado Court of Appeals: Statute with “Other Apparatus” Category Not Unconstitutionally Vague As Applied to Gym Lockers

The Colorado Court of Appeals issued its opinion in People v. Nerud on Thursday, March 12, 2015.

Third-Degree Burglary Statute—Vagueness Challenge—Sufficiency of the Evidence—Jury Instructions—Closing Argument.

Nerud stole money and a backpack from three lockers at a 24 Hour Fitness Center on three occasions. He was apprehended on the third theft and eventually admitted to all three thefts, but denied breaking any locks to enter the lockers. He claimed he rummaged through belongings in unlocked lockers until he found money to take. Nerud was charged with two counts of third-degree burglary related to the first two incidents and three counts of theft. The jury found him guilty on all counts.

On appeal, Nerud argued that the third-degree burglary statute, CRS § 18-4-204(1), is unconstitutionally vague on its face and as applied to him because it prohibits entering or breaking into “other apparatus or equipment.” The Court of Appeals reviewed the case law interpreting the phrase and held the statute is not vague on its face because “other apparatus and equipment” is limited to containers with the same characteristics as the other items listed in the statute (specifically, containers designed and used for the safekeeping of money or valuables). The Court found the lockers were clearly “other apparatus and equipment” because they were used to safeguard personal valuable items while members worked out in the gym and a person of ordinary intelligence would not have to guess at this meaning. Thus, the statute was not unconstitutionally vague as applied.

Nerud argued that the evidence presented was insufficient to prove the lockers were “other apparatus or equipment” that were locked. The Court found copious evidence in the record to support the findings of the jury; the testimony of the victims alone was sufficient.

Nerud argued that the jury instruction on “other apparatus or equipment” was improper. The Court disagreed, finding that the jury instruction correctly defined the phrase.

Nerud argued that the jury instruction on the inference that may be drawn from a defendant’s unexplained, exclusive possession of stolen property was error. The Court found any error harmless; Nerud conceded the theft but only contested whether the lockers he had stolen from were locked.

Nerud further argued that the prosecutor in his closing argument improperly offered personal opinions about witness credibility and drug paraphernalia found in Nerud’s backpack. The Court found no reversible error. It first noted no contemporaneous objection and therefore a plain error standard of review applied, and then reviewed the objected to statements and found no plain error. The judgment was affirmed.

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

Tenth Circuit: Drug Quantity Increase that Alters Guidelines Range Not Impermissible Under Alleyne

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

Timothy Cassius was arrested in June 2006 while carrying a briefcase that contained crack cocaine, digital scales, and a semi-automatic handgun. At trial, the government put forth evidence that the cocaine in the briefcase totaled 20.869 grams. Defendant was classified as a career offender and sentenced to 25 years in prison. He moved to vacate his sentence, contending new case law proved he had been wrongly classified as a career offender. The government conceded this point and the court ordered resentencing. The district court held an evidentiary hearing to determine the amount of crack cocaine attributable to defendant and found him responsible for 450.462 grams. Four days later, the Supreme Court issued Alleyne v. United States, 133 S. Ct. 2151 (2013), and Cassius objected, arguing the district court was violating Alleyne by utilizing the larger crack amount to drastically increase his sentence. The court disagreed and sentenced him to 204 months. Defendant appealed.

Defendant argued on appeal the district court committed procedural error in calculating the applicable Guidelines range. Defendant contended quantity is an element of drug violations and must be found by a jury beyond a reasonable doubt. The Tenth Circuit did not reach this argument because Defendant’s sentence was within the range for the drug quantity found by the jury. The Tenth Circuit further found Alleyne supported this position because the Supreme Court found in that case that the district court had altered the defendant’s statutory sentencing range based on a finding not found by the jury. The Court in Alleyne dictated that its finding does not mean any fact that influences judicial decision must be found by a jury, but rather only those that aggravate the legally prescribed punishment.

The district court’s sentence was affirmed.

Tenth Circuit: Fourth Amendment Does Not Require Judge’s Signature on Search Warrant

The Tenth Circuit Court of Appeals issued its opinion in United States v. Cruz on Monday, December 22, 2014.

Raul Cruz was convicted by a jury of knowingly and intentionally possessing methamphetamine with intent to distribute and sentenced to 63 months’ imprisonment. His conviction and sentence were affirmed on direct appeal. Cruz subsequently filed a motion to vacate, set aside, or correct his sentence, alleging his trial counsel was ineffective for failing to move to suppress evidence uncovered during the search of his residence pursuant to an unsigned search warrant. The district court denied relief on this assertion, and Cruz appealed.

The Tenth Circuit found, upon examination of the record, that the affidavit and warrant had been presented to a New Mexico district judge on March 26th, 2010. The judge signed the signature lines on the affidavit but neglected to sign the warrant at that time. Officers executed the warrant on March 29, 2010, and found methamphetamine, horse steroids, cash, and false identification. Officers found no evidence of drug use in the home or by Cruz. Cruz admitted to possession of the drugs but not intent to distribute. Approximately a month later, the judge signed the warrant, dated it March 26, 2010, and wrote “Nunc Pro Tunc on this April 23, 2010″ below the date line.

Cruz asserted that his counsel should have moved to suppress the evidence seized during the search of his residence, as well as his subsequent statements to police about the fruits of the search, because the unsigned warrant was not “issued” by a judge. Cruz claims that such motion would have been meritorious and would ultimately have led either to dismissal of the charges against him or his acquittal at trial. The Tenth Circuit disagreed, finding instead that nothing in the text of the Fourth Amendment conditions the validity of a warrant on its being signed. The First Circuit recently dealt with surprisingly similar facts and rejected the defendant’s argument, concluding that nothing in the Fourth Amendment required the judge who made the probable cause determination to also sign the warrant. The Tenth Circuit exhaustingly examined the meaning of the term “issue” under the Fourth Amendment, and found no reason to impose conditions on a validity of a warrant that were not set forth by the Fourth Amendment itself. The Tenth Circuit therefore concluded that there was no support for an inference that Cruz’s counsel’s motion to suppress would have been meritorious, and found no deficient performance of his counsel.

The district court’s judgment was affirmed.

Colorado Supreme Court: Error for Trial Court to Take Judicial Notice of Defendant’s Absence in Court

The Colorado Supreme Court issued its opinion in Doyle v. People on Tuesday, February 17, 2015.

Colorado Rules of Evidence—Judicial Notice.

Defendant petitioned for review of the court of appeals’ judgment affirming his conviction for violating a condition of his bail bond. At the request of the prosecution, the trial court took judicial notice of the fact that defendant failed to appear in court on a particular day, as mandated by the relevant condition of his bond. The court instructed the jury that although it need not accept this judicially noticed fact as true, a judicially noticed fact is one that the court has determined is not the subject of reasonable dispute and one that the court has accepted as true.

The Supreme Court reversed. The resolution of a factual matter at issue in a prior judicial proceeding does not become an indisputable fact within the contemplation of CRE 201 because it was reflected in a court record. Accordingly, the trial court erred in taking judicial notice that defendant failed to appear in court on a particular day. Because the jury was instructed that this judicially noticed fact was not subject to reasonable dispute and had already been accepted as true by the court, the error was not harmless.

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

Tenth Circuit: Unregistered Firearm Charge Upheld Even Where Defendant Could Not Register Firearm

The Tenth Circuit Court of Appeals issued its opinion in United States v. Berres on Wednesday, January 21, 2015.

Bryan Berres entered a propane company in Oklahoma and set his backpack by the front door. Berres first asked if he could call his wife, then requested employees call an ambulance to take him to the VA hospital. Employees, suspecting Berres needed psychiatric treatment, called the ambulance. Medical personnel asked Berres if he had weapons. He relinquished a knife and said he had a .38 pistol in his bag. Police were called, and when they questioned Berres about the bag, he told police it also contained a flash bang device, electric matches, 8″ leads, and squibs. The propane company was evacuated, and Berres was transported to the hospital.

While at the hospital, an ATF agent from the Drug and Violent Crime Task Force interviewed Berres about the contents of the bag. Berres was “more than willing” to talk with the agent, and relayed that the bag contained a flash bang device, a .38 pistol, about 50 feet of Class C squib, about 70 feet of red paper fuse, two pounds of black powder, and night vision goggles. Berres relayed that he was taking the items to a wooded area to “get the government out of his body.” The agent spoke with the ATF officers at the propane store and they safely opened the backpack, finding a flash bang device, two cans of black powder, six feet of cannon fuse, 36 electric matches, 60 feet of quick match fuse, a .38 pistol, nearly 300 rounds of .38 ammunition, and 30 rounds of .223 ammunition. Berres was subsequently placed on a 72-hour mental health hold by hospital personnel.

Berres was eventually charged with three counts of possession of unregistered firearms, one for the flash bang device (Count 1) and two for combinations of parts from which an explosive device can be readily assembled (Counts 2 and 3). He filed a motion to dismiss, arguing that Count 1 violated his due process rights because it was legally impossible for him to register the flash bang device, and that Counts 2 and 3 were multiplicitous. He also filed a motion to suppress the statements he made to the ATF agent at the hospital. The district court denied his motions but said that he could raise his multiplicity argument again at trial. Berres pled guilty before trial, specifically reserving his right to appeal.

On appeal, Berres argued first that his conviction on Count 1 violated his due process rights because it was legally impossible for him to register the flash bang device as a transferee; flash bang devices must be registered by the maker or transferor and the transferee must be identified as part of the registration process. The Tenth Circuit, however, found that even though Berres could not register the device, it was legally registrable, and therefore the Tenth Circuit upheld his conviction on this count.

Berres next argued that Counts 2 and 3 failed to state an offense, because there is no duty to register an explosive device until it is assembled. The Tenth Circuit disagreed. The Tenth Circuit found that the statutory language “any combination of parts” precluded Berres’ argument. Berres next argued that Counts 2 and 3 were multiplicitous, since he could only make one explosive device from the parts. However, the indictment listed each can of black powder as a single ingredient, so the combinations of black powder canisters, cannon fuse, and electric matches could have been used to make more than one explosive device. The Tenth Circuit found no double jeopardy in the two counts.

Finally, Berres argued that his statements to the agent at the hospital should have been suppressed. The Tenth Circuit examined the circumstances of the interview and found it to be non-custodial. Berres was at the hospital at his own request, he was seated by the door during the interview, and he stated he was “more than willing” to talk with the agent. The Tenth Circuit found no error in allowing Berres’ statements.

The Tenth Circuit affirmed the district court.