January 17, 2017

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.

Tenth Circuit: Confrontation Clause Only Implicated when Statement Admitted to Prove Truth of Matter Asserted

The Tenth Circuit Court of Appeals issued its opinion in United States v. Ibarra-Diaz on Monday, November 9, 2015.

An undercover detective with the Wichita Police Department set up a methamphetamine purchase from Jesus Ibarra-Diaz through a confidential informant (CI). The detective met Ibarra-Diaz and his girlfriend, Ana Valeriano-Trejo, in a shopping mall parking lot and got in their vehicle. Ibarra-Diaz indicated that another accomplice, Ricardo Estrada, would bring the drugs. When Estrada arrived, he recognized the detective and informed Ibarra-Diaz and Valeriano-Trejo that he was a cop. The detective got out of Ibarra-Diaz’s vehicle and confronted Estrada, and Ibarra-Diaz started to drive away, at which point police officers surrounded his vehicle and arrested him and Valeriano-Trejo.

After searching the two vehicles, officers found suspected methamphetamine in the wheel well of the vehicle Estrada was driving. Estrada, who was in a patrol car, voluntarily spoke to officers, telling them that there was over a pound of meth at the house he shared with Ibarra-Diaz and Valeriano-Trejo. Officers obtained a warrant and searched the residence, finding several pertinent items, including approximately one pound of meth in a container in the laundry room. A federal grand jury indicted the three co-defendants on one count of possession with intent to distribute a substance containing 50 grams or more of methamphetamine. Ibarra-Diaz exercised his right to a jury trial. He was convicted and sentenced to 188 months’ imprisonment.

Ibarra-Diaz appealed, raising several contentions of error. First, he argued that the district court violated his Confrontation Clause rights when it erroneously admitted several hearsay statements. Next, he argued he was denied a fair trial when the detective was allowed to present inflammatory testimony. Third, he contended that certain evidence rendered the indictment duplicitous and therefore denied him a fair trial. Finally, he contended there was insufficient evidence to support his conviction. The Tenth Circuit rejected each argument in turn, noting as an initial matter that all of Ibarra-Diaz’s arguments except his sufficiency challenge were raised for the first time on appeal and were subject only to plain error review.

Ibarra-Diaz argued that the district court erred in admitting through the detective’s testimony several statements of the CI or Mr. Estrada. The Tenth Circuit analyzed each in turn, reminding Ibarra-Diaz that a statement is only testimonial when it is admitted to prove the truth of the matter asserted. Ibarra-Diaz first argued it was error for the detective to testify that the narcotics investigation commenced because a CI gave information to the detective. The Tenth Circuit found no error, since the trial court stopped the detective’s testimony before he could reveal what he learned from the CI. Next, Ibarra-Diaz argued the court erred in allowing the detective to testify that the CI was afraid of Ibarra-Diaz. Because the detective’s remark was stricken from the record and the court gave the jury two separate instructions to consider only testimony that was not stricken, there was no error. Third, Ibarra-Diaz argued it was error for the detective to testify that the CI told him Ibarra-Diaz had “some dope” for sale. The Tenth Circuit found no error because the statement in question was not hearsay since it was offered for a different purpose than to prove the truth of the matter asserted. The Tenth Circuit similarly found no Confrontation Clause violations for the fourth and fifth points of error, since the actions in question were not statements. The next statement was also not hearsay because it was offered to explain the detective’s conduct. Ibarra-Diaz’s seventh challenge similarly failed because the detective was not reciting statements. The Tenth Circuit found that the eighth statement was also not offered to prove the truth of the matter asserted.

Ibarra-Diaz’s final Confrontation Clause challenge concerned the detective’s testimony that Estrada told him there was additional methamphetamine at the house. The government conceded that the statement was testimonial and violated the Confrontation Clause, but the Tenth Circuit did not find plain error because the admission did not substantially affect the outcome of the proceeding because even without the statement, overwhelming evidence supported Ibarra-Diaz’s conviction.

Ibarra-Diaz argued that some of the detective’s testimony was inflammatory and unduly prejudiced the jury. Ibarra-Diaz argued the statements unfairly painted a picture of him as a dangerous drug dealer. The Tenth Circuit elected to consider Ibarra-Diaz’s arguments as FRE 403 challenges, and found that the testimony was mostly irrelevant and its probative value was outweighed by the danger of confusing the issues or misleading the jury. However, the Tenth Circuit found that even if the district court erred, the error was not clear or obvious, and any error did not substantially prejudice Ibarra-Diaz. The Tenth Circuit noted that the evidence tended to show that the detective was afraid of Mr. Estrada, not Ibarra-Diaz, and the testimony had no effect on Ibarra-Diaz’s substantial rights.

The Tenth Circuit then turned to Ibarra-Diaz’s contention that he was deprived of a unanimous jury verdict by a duplicitous indictment. Ibarra-Diaz acknowledged that the indictment was not duplicitous on its face, but argued that the presentation of the two separate bundles of methamphetamine, taken from the vehicle and the house, rendered the indictment duplicitous because there were two factual presentations for the same offense. The Tenth Circuit declined to consider the issue, which was raised for the first time on appeal.

Finally, Ibarra-Diaz challenged the sufficiency of the evidence. At trial, the prosecution advanced two theories of Ibarra-Diaz’s guilt: as a complicitor and as a principal. Ibarra-Diaz confined his sufficiency challenge to the aiding and abetting theory, notably not challenging the theory of him as principal. The Tenth Circuit found this fatal to his arguments. Because there was more than enough evidence to support Ibarra-Diaz’s convictions as a principal, there was no need to address the aiding-and-abetting theory. However, the Tenth Circuit found ample evidence to support the complicitor theory as well.

The Tenth Circuit affirmed the district court.

Colorado Court of Appeals: Community Corrections Sentence Subject to Blakely

The Colorado Court of Appeals issued its opinion in People v. Sandoval on Thursday, February 11, 2016.

Alfred Gabriel Sandoval went to the victim’s apartment to collect a drug debt and shot the victim in the knee. He was charged with first degree assault and possession of a weapon by a previous offender. He entered into a plea agreement with the prosecution where he agreed to plead guilty to felony menacing in exchange for the original charges being dropped. The People notified Sandoval of possible penalties, including DOC confinement of 1 to 3 years with a possible aggravation of 6 years, but stipulated that he would receive a non-DOC sentence. He was ultimately sentenced to 6 years of community corrections, and the judge remarked that he aggravated the sentence based on Sandoval’s conduct in “knee-capping” the victim. Defendant appealed, arguing the aggravated sentence violated Blakely v. Washington, 542 U.S. 296 (2004), which requires that aggravating circumstances be proved beyond a reasonable doubt.

The Colorado Court of Appeals analyzed the transcript and determined that the sentencing judge did not find facts beyond a reasonable doubt to support the aggravated sentence. The court of appeals noted that a community corrections sentence is subject to Blakely just like a DOC sentence. Because the sentencing judge increased Defendant’s penalty beyond the statutory maximum without finding facts beyond a reasonable doubt to support the aggravation, the court of appeals vacated the sentence and remanded for resentencing. Although Defendant argued that the court of appeals should impose the statutory sentence, the court declined to do so, noting that on remand the sentencing court could find the requisite facts to support the aggravated sentence.

The sentence was vacated and the case was remanded for resentencing consistent with the opinion.

Colorado Supreme Court: Felony Murder Charge Cannot Stand Where Acquitted of Predicate Offense

The Colorado Supreme Court issued its opinion in Doubleday v. People on Monday, January 11, 2016.

Felony Murder—Affirmative Defenses—Duress.

A jury found John Andrew Doubleday guilty of felony murder, despite finding him not guilty, based on the affirmative defense of duress, of the charged predicate offense. Under the plain language of CRS § 18-3-102(1)(b), to be convicted of felony murder, a defendant must have committed or attempted to commit one of the enumerated predicate offenses. The question presented in this case is whether Doubleday can be said to have committed the charged predicate offense of attempted aggravated robbery when he was acquitted of that offense based on the affirmative defense of duress. The Supreme Court concluded that to establish that a defendant committed a predicate offense within the meaning of the felony murder statute, the prosecution must prove beyond a reasonable doubt all of the elements of the predicate offense, including the inapplicability of any properly asserted affirmative defense to the predicate offense. Because the prosecution did not meet this burden here, Doubleday’s felony murder conviction cannot stand.

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

Colorado Court of Appeals: Restitution Award Appropriate When Based on Amount Actually Paid by CVCB

The Colorado Court of Appeals issued its opinion in People v. Bohn on Thursday, December 31, 2015.

Assault—Restitution—Lost Wages—Future Wages.

Defendant’s neighbor attempted to stop defendant from assaulting two people. Defendant pushed the neighbor down a flight of stairs, causing a broken bone in the neighbor’s foot. After defendant pleaded guilty to second-degree assault and third-degree assault, the prosecution moved for $9,985 in restitution to be paid to the Crime Victim Compensation Board (CVCB), which the court granted. The documentation attached to the motion showed that the CVCB had paid the neighbor $3,185 for the neighbor’s medical bills and $6,800 to the neighbor for his lost wages.

On appeal, defendant contended that the district court erred by ordering restitution based in part on the CVCB’s payment to a crime victim for lost wages when, at the time the CVCB paid the claim, at least a portion of the payment was for wages that the crime victim expected to lose in the future. A district court may order restitution to reimburse a CVCB for payments it made to a crime victim for lost wages, some of which covered post-payment periods, so long as the wages at issue were based on work actually missed before the restitution order was entered. Here, the district court did not abuse its discretion in ruling that the prosecution proved the neighbor’s lost wages by a preponderance of the evidence. The documentation that the prosecution submitted—a lost wage form from the neighbor’s employer and a letter from the orthopedic practice—was sufficient to show that, before the restitution hearing and the court’s order of restitution, the neighbor actually lost the wages that the CVCB reimbursed. The order was affirmed.

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

Colorado Court of Appeals: One-on-One “Show Up” Identification In Court Not Definitively Error

The Colorado Court of Appeals issued its opinion in People v. Garner on Thursday, December 17, 2015.

Due Process—In-Court Identification—Prosecutorial Misconduct—Evidence—Prejudicial.

C.A.D. and his brothers R.A.D. and A.A.D. were celebrating C.A.D.’s birthday at a bar. Before the group left, R.A.D. went to the bathroom. On his way back from the bathroom, someone from defendant’s group pushed R.A.D. into a table. During the ensuing chaos, defendant fired a shot at R.A.D., grazing his wrist. Defendant then turned, shot, and injured both C.A.D. and A.A.D. Defendant was convicted of two counts of attempted reckless manslaughter, one count of first-degree assault, and one count of reckless second-degree assault.

On appeal, defendant contended that his right to due process and the requirements of various rules of evidence were violated when the court allowed the brothers to make impermissibly suggestive in-court identifications after failing to make a pretrial identification. While the inability of a witness to identify the defendant in a photographic lineup is relevant and certainly grist for cross-examination, it does not, as a matter of law, preclude the victim from making an identification upon seeing the defendant in court. Instead, the previous inability to identify goes to the weight of his identification testimony rather than to its admissibility. Therefore, the trial court did not err in admitting the evidence.

Defendant contended that numerous instances of prosecutorial misconduct violated his right to a fair trial. There was only one instance of prosecutorial misconduct, which occurred when the prosecutor improperly used the word “lie” when hypothecating about the veracity of the three brothers as witnesses during rebuttal closing argument. However, viewing the comments in context and in light of all of the evidence, the prosecutor’s single use of the word “lie” was not so flagrantly, glaringly, or tremendously improper as to rise to the level of plain error.

Defendant also argued that the trial court committed reversible error in admitting as evidence a report containing the data extracted from a cell phone found at the crime scene. The cell phone belonged to defendant’s friend, Velasquez, who was also present the evening of the shooting. The evidence included photos of defendant and Velasquez making hand gestures that could be interpreted as gang signs and text messages that were violent in nature. The photos and text messages on the phone, however, were not prejudicial enough to conclude that the trial court abused its discretion in admitting this evidence. The judgment was affirmed.

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