March 1, 2015

Colorado Court of Appeals: DNA Test Unlikely to Prove Defendant’s Factual Innocence

c

DNA Evidence—Testing—Due Process—Destruction of Evidence.

This appeal stemmed from defendant’s 1988 conviction for kidnapping and sexual assault. On direct appeal, it was determined that the trial court had not abused its discretion in denying defendant’s request for DNA testing because “defendant was seen committing the offense by a police officer and was identified by the victim,” making “the utility of DNA testing . . . speculative at best.” Defendant thereafter filed a Crim.P. 35(c) motion requesting post-conviction testing of DNA. The prosecution conducted DNA testing on the victim’s underwear and did not find any traces of semen and saliva. Defendant then requested his own DNA testing, but the evidence had been destroyed.

On appeal, defendant requested a remedy for the negligent destruction of the underwear. However, defendant was not entitled to testing of the underwear under CRS § 18-1-413 in the first instance because he failed to establish by a preponderance of the evidence that favorable results of DNA testing would demonstrate his actual innocence. Therefore, the trial court did not err and defendant was not entitled to relief under CRS § 18-1-414(2)(b). The trial court’s determination that the destruction of the evidence did not violate defendant’s due process rights was affirmed.

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

Colorado Court of Appeals: Speedy Trial Act Implicated when Charges Filed, Dropped, Then Filed Again

The Colorado Court of Appeals issued its opinion in People v. Nelson on Thursday, December 4, 2014.

Rental Vehicle—Speedy Trial—Jury Instructions—Affirmative Defense—Consent—Mistake of Fact.

Defendant rented a vehicle from Mesa Motors, Inc. (Mesa). After using the vehicle for about two months, defendant told Mesa’s owner he wanted to buy the vehicle and agreed to pay any accrued rental charges up to the date of purchase; however, defendant did not pay the purchase price or the unpaid rental charges. Mesa’s owner went to the address defendant had provided him and discovered that defendant no longer lived there. He reported the vehicle stolen and left a message with defendant to that effect, at which point defendant surrendered the vehicle. A jury found defendant guilty of aggravated motor vehicle theft.

On appeal, defendant contended that his statutory right to a speedy trial was violated. The prosecutor dismissed the original charges against defendant and later refiled them. The district court found, with record support, that the prosecutor had not dismissed the charges and refiled them to avoid the statutory six-month deadline. Because defendant’s trial began within six months after he pleaded not guilty to the refiled charges, there was no violation of his statutory right to a speedy trial.

Defendant also contended that his right to a speedy trial under both the U.S. and Colorado Constitutions was violated. The period during which defendant originally faced the charges must be included in considering his constitutional speedy trial claim. Adding the period from the initial filing of the charges to the dismissal of the charges (229 days) to the period from the refiling of the charges to the beginning of trial (189 days) equals more than one year, a presumptively prejudicial length of time. However, because defendant failed to establish any significant prejudice by the delay, he was not denied his constitutional right to a speedy trial.

Defendant further argued that the court erred in denying his two jury instructions on purported affirmative defenses: consent and mistake of fact. Though consent and mistake of fact can be affirmative defenses (depending on the elements of the charged crime), they were not affirmative defenses in this case because defendant denied committing the crime. Therefore, although defendant was free to argue that the evidence of consent and mistake of fact showed that he had not deceived the victim, he was not entitled to separate instructions on those defenses characterizing them as affirmative defenses, which the prosecution was required to disprove beyond a reasonable doubt. The judgment was affirmed.

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

Colorado Court of Appeals: Academic Theories Addressed in Research Studies Do Not Constitute Evidence

The Colorado Court of Appeals issued its opinion in People v. Bonan on Thursday, November 21, 2014.

Sexual Assault—Post-Conviction Relief—Crim.P. 35(c)—Scientific Research—New Evidence.

In 1988, Bonan was charged with four counts of sexual assault on a child—position of trust, and four counts of second-degree assault on a child. The charges stemmed from allegations by Bonan’s ex-girlfriend’s three young children that he had sexually assaulted them while living with them from July to November 1986. A jury convicted defendant as charged.

In February 2006, Bonan filed a motion for post-conviction relief under Crim.P. 35(c), asserting that recent scientific research has produced an undisputed body of facts that renders the state’s expert opinion testimony foundationless and contradicts the state’s experts’ proposition that they were capable of determining whether a child’s report is accurate. The motion characterized the research as newly discovered evidence. This motion was denied. Bonan filed another motion in 2011, asserting a newly discovered evidence claim similar to his 2006 motion, which was denied as successive and time barred.

On appeal, Bonan contended that the trial court erred in denying his post-conviction motion as untimely. Bonan’s motion was untimely because he did not assert justifiable excuse or excusable neglect in his motion. Further, because academic theories addressed in research studies do not constitute evidence, and therefore cannot constitute new evidence, Bonan had no justifiable excuse or excusable neglect for the late filing of his Crim.P. 35(c) motion.

Bonan further contended that the trial court erred in denying his post-conviction motion as successive. Absent application to the testimony used to convict him, the theories addressed in the academic studies Bonan identifies are not probative of his innocence and therefore do not constitute new evidence under Crim.P. 35(c). Accordingly, the trial court did not err in denying Bonan’s post-conviction motion as successive. The order was affirmed.

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

Tenth Circuit: Guilty Plea Does Not Waive Defendant’s Right to Contest Evidence Admission for Other Purposes

The Tenth Circuit Court of Appeals issued its opinion in United States v. Farmer on Wednesday, November 5, 2014.

Joseph Farmer was pulled over on I-40 in Oklahoma in June 2012. The officer who stopped him smelled marijuana and asked to search the car. During the search, the officer found a loaded .357 revolver under the front edge of the driver’s seat. Based on these facts, a jury convicted Farmer of being a felon in possession of a firearm, and he was sentenced to 60 months’ imprisonment followed by three years’ supervised release. Farmer appealed, contending the evidence of his 2010 firearm possession should have been suppressed because the evidence was obtained in an unlawful search.

The Tenth Circuit examined the prior firearm possession charge, and determined that although Farmer had pled guilty to the possession charge, thereby waiving his right to appeal that charge, he did not waive the right to assert that the search was unlawful for other purposes. The Tenth Circuit found that it was error for the district court to rule that Farmer had waived his right to challenge the search by pleading guilty. However, it found that the error was harmless beyond a reasonable doubt. Farmer’s defense at trial was that he did not know that the firearm was in the car. The government presented evidence that Farmer tried to distract the officer while he was searching the driver’s side of the car, muttered about the gun while the officer was searching, and tried to get his passenger to claim the gun as hers. These facts overwhelmingly support the conviction, regardless of the evidence of the prior conviction.

Farmer also argued the prosecutor’s closing remarks deprived him of a fair trial. During closing, the prosecutor made statements that the deputy had nothing to gain by planting a gun in Farmer’s car, which Farmer argued impermissibly vouched for the officer’s credibility. The Tenth Circuit disagreed, finding instead that the prosecutor was addressing the defense’s argument that the officer had planted the gun. The Tenth Circuit found that the prosecutor’s other remarks were harmless beyond a reasonable doubt.

The Tenth Circuit affirmed Farmer’s conviction.

Tenth Circuit: States Have Wide Latitude to Determine Which Offenses are Serious for ACCA Purposes

The Tenth Circuit Court of Appeals issued its opinion in United States v. Titley on Tuesday, November 4, 2014.

John Ervin Titley pled guilty to being a felon in possession of a firearm. He was sentenced, and his sentence was enhanced due to the provisions of the Armed Career Criminal Act (ACCA), due to his three prior felony convictions. Although Mr. Titley agrees his Missouri armed robbery conviction qualifies for ACCA purposes, he argues that his convictions for possession of marijuana with intent to distribute in Arkansas and unlawful possession of marijuana with intent to distribute in Oklahoma should not qualify because in 19 other states and the District of Columbia those crimes would not have constituted “serious drug offenses.” Mr. Titley argued this violates the Equal Protection clause.

The Tenth Circuit, applying rational basis review, analyzed whether the challenged ACCA provision is rationally related to a legitimate government purpose, and found that it was. ACCA’s purpose is to incapacitate repeat offenders who possess firearms and deter such conduct in others. Mr. Titley does not challenge the purpose, but instead argues ACCA violates equal protection because it does not apply uniformly to similarly situated defendants. The Tenth Circuit found that Congress afforded the states wide latitude in determining which crimes they regarded as serious. Rational basis does not require uniformity.

The sentence was affirmed.

Colorado Supreme Court: “Actual Notice” Means “Actual Knowledge” Under UMDDA

The Colorado Supreme Court issued its opinion in People v. McKimmy on Monday, October 27, 2014.

Uniform Mandatory Disposition of Detainers Act—Actual Notice.

The Supreme Court clarified the process for invoking one’s rights under the Uniform Mandatory Disposition of Detainers Act (UMDDA or Act), CRS §§ 16-14-101 to -108. Even when prisoners do not strictly comply with the UMDDA’s requirements, the Court previously determined that they invoke their rights under the Act if (1) their request substantially complies with the Act’s requirements, and (2) the prosecution receives “actual notice” of their request.

Here, the Court held that, for purposes of substantial compliance under the UMDDA, “actual notice” means “actual knowledge.” Therefore, the Court reversed the judgment of the court of appeals and remanded the case with instructions to return the case to the trial court for further fact-finding. Specifically, the trial court should determine: (1) when the prosecution gained actual knowledge of defendant’s UMDDA requests in each of his cases, at which point defendant would have effectively invoked his rights under the Act; and (2) whether any UMDDA violations subsequently occurred.

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

Colorado Court of Appeals: Improper Jury Instruction Amounted to Directed Verdict for Prosecution

The Colorado Court of Appeals issued its opinion in People v. Bertrand on Thursday, October 23, 2014.

Sexual Assault—Evidence—CRS §18-3-402(1)(b)—Asleep—Jury Instruction.

Defendant is the cousin of K.B., the alleged victim. K.B. suffered from developmental disabilities, and lived with her parents because she was unable to care for herself. On several occasions while defendant lived with K.B. and her family, defendant got into bed with K.B. and had sexual intercourse with her. K.B. later told her mother that defendant had had sex with her, but that she did not want to have sex with him. The family made a report to police, and a jury ultimately convicted defendant of two counts of sexual assault.

On appeal, defendant contended that there was insufficient evidence to show that K.B. was incapable of appraising the nature of her conduct as required by CRS § 18-3-402(1)(b). K.B. suffered from cognitive difficulties, and she took medication before bedtime that made her groggy and sleepy. The jury could have reasonably inferred from this evidence that she was incapable of appraising the nature of her conduct when defendant was having sex with her. The jury could also have reasonably concluded that defendant knew that K.B. was unable to appraise the nature of her conduct. Therefore, the evidence was sufficient to sustain defendant’s conviction under CRS § 18-3-402(1)(b).

Defendant also contended that one of the jury instructions improperly directed a verdict in favor of the prosecution. The jury instruction stated that “[a] person is incapable of appraising the nature of her conduct when she is asleep or partially asleep during an assault.” The instruction should have stated that a person “may be” incapable.Because the error was not harmless, the conviction was reversed and the case was remanded for a new trial.

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

Colorado Court of Appeals: Two Convictions for Same Incident Violated Rights Against Double Jeopardy

The Colorado Court of Appeals issued its opinion in People v. Frye on Thursday, October 23, 2014.

Miranda Rights—Suppression—Jury Question—Double Jeopardy—Controlled Substances—CRS § 18-8-203(1).

Defendant was arrested on outstanding warrants. While she was being booked into the Jefferson County jail, drugs were found on her person. A jury convicted her of multiple charges related to the drugs.

On appeal, defendant contended that the trial court erred in refusing to suppress her statement that she did not possess any drugs, which she made at the jail before having been advised of her right to remain silent. Although the trial court erred, the error was harmless beyond a reasonable doubt; evidence of defendant’s guilt was overwhelming.

Defendant also contended that the trial court erred in responding to a jury question dealing with an officer’s right to request identification from a passenger during a routine traffic stop. However, there was no reasonable probability that the error contributed to defendant’s conviction, because (1) the evidence of defendant’s guilt was overwhelming; (2) the court instructed the jury that it was not an issue for them to determine; and (3) it did not bolster the officer’s credibility regarding any material issue.

Defendant further contended that one conviction for introducing contraband into a detention facility must be vacated or merged because she could not be convicted twice for introducing two types of drugs at the same time. The search of defendant at the jail revealed methamphetamine, cocaine, and oxycodone. The jury convicted her on two of these counts and acquitted her on one of them, and the trial court imposed concurrent sentences on the two convictions. Because defendant’s entry into the jail occurred at the same time and place, without the influence of any intervening events, her convictions were a violation of her rights against double jeopardy. The case was remanded to vacate one of the convictions.

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

Colorado Court of Appeals: Prosecutor’s Improper Statements Did Not Constitute Error

The Colorado Court of Appeals issued its opinion in People v. Castillo on Thursday, October 23, 2014.

Initial Aggressor—Self Defense—Jury Instructions—Burden of Proof—Prosecutorial Misconduct.

Defendant went to a club in downtown Denver. After leaving the club, he engaged in a confrontation with an unidentified male in a busy parking lot, and police were called. Defendant began driving out of the parking lot, stopped his car, and got a shotgun out of his trunk. He began firing at the unidentified male and shot one of the officers, who had been returning fire at defendant. A jury convicted defendant of two counts of attempted second-degree murder and one count of second-degree assault.

Defendant argued that because no evidence supported an initial aggressor instruction, the trial court erred by instructing the jury that he was not entitled to self-defense if he was the initial aggressor. There was conflicting testimony from witnesses as to whether defendant was the initial aggressor. Based on these facts and because the prosecution needed to make only a minimal showing to support an instruction on an exception to self-defense, the trial court did not err in giving the initial aggressor instruction to the jury. Further, the jury instructions as a whole informed the jury that the prosecution had the burden of proving this exception to self-defense beyond a reasonable doubt.

Defendant argued that the trial court erred by instructing the jury that self-defense is not an affirmative defense if defendant, “with intent to cause bodily injury or death to another person, provoked the use of unlawful physical force by that person.” This instruction should not have been given because there was no evidence to support it. There was no evidence that the error misled the jury, however, so the error was harmless.

Defendant contended that numerous statements made by the prosecutor in closing argument were misleading as to both the facts of this case and the law of self-defense. Some of the prosecutor’s statements regarding the facts and law were improper, but the statements did not constitute reversible error. Moreover, the court instructed the jury that the prosecutor’s arguments were not evidence and that the jury should follow the jury instructions regarding the applicable law. The judgment was affirmed.

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

Colorado Court of Appeals: Applying Novotny to Case Pending on Appeal Not a Retroactive Application

The Colorado Court of Appeals issued its opinion in People v. Maestas on Thursday, October 23, 2014.

Challenge for Cause—Peremptory Challenge—Constitutional Right to Impartial Jury.

A jury found defendant guilty of aggravated robbery, menacing, and eluding police. A division of the Court of Appeals overturned defendant’s conviction and remanded the case for a new trial after determining the trial court had erred by denying one of defendant’s for-cause challenges. The Supreme Court remanded the case to the Court of Appeals for reconsideration in light of its recent decision in People v. Novotny, 2014 CO 18, which held that, where a district court erroneously deprives a defendant of a peremptory challenge, reversal is warranted only where the error was not “harmless under the proper outcome-determinative test.”

The Court first rejected defendant’s contention that applying Novotny retroactively to his case would violate federal and state due process guarantees. Applying Novotny to a case pending on appeal is not a retroactive application of the law and does not offend due process.

The Court agreed with defendant that the trial court abused its discretion by denying his challenges for cause to two prospective jurors, Juror F and Juror H, who indicated they would hold it against defendant if he refused to testify. The trial court denied defendant’s challenges for cause as to Jurors F and H, and defendant used a peremptory challenge to remove Juror H from the jury. Defendant had exhausted his peremptory challenges, so Juror F ultimately served on the jury. Because Juror F, a biased juror, sat on the panel, defendant’s constitutional right to an impartial jury was implicated, and reversal was required. The case was remanded for a new trial.

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

Tenth Circuit: Threatening Intent Required for Conviction Under Interstate Threat Statute

The Tenth Circuit Court of Appeals issued its opinion in United States v. Heineman on Monday, September 15, 2014.

Defendant Aaron Heineman, a white supremacist, sent three emails to a professor at the University of Utah in 2010 and 2011. The third email was a poem that made the professor fear for his safety and that of his family. The professor contacted law enforcement, who traced the email to Heineman. When officers contacted Heineman in writing, he immediately responded, “Is this about the email?” He was charged with one count of sending an interstate threat in the U.S. District Court for the District of Utah. Prior to trial, he requested an instruction that he must have intended his communication to be perceived as a threat in order to be convicted, but his request was denied. He then moved to dismiss the charge, arguing the statute was facially unconstitutional if it did not require proof that he intended the communication to place the hearer in fear of bodily harm or death. The court denied this motion. He reasserted his objections at trial, and the court again rejected them. The court concluded that Defendant had knowingly transmitted a communication that would cause a reasonable person to fear bodily harm or death. Defendant appealed.

The Tenth Circuit reversed the conviction. After a careful analysis of the U.S. Supreme Court’s opinion in Virginia v. Black, 538 U.S. 343 (2003), the Tenth Circuit concluded as an issue of first impression that the defendant must intend the communication to be perceived as a threat, regardless of whether he actually carries out the threat. The Tenth Circuit reversed Defendant’s conviction and remanded for determination of intent.

Tenth Circuit: Sanctions Reversed for Lack of Notice and Hearing

The Tenth Circuit Court of Appeals issued its opinion in United States v. Melot on Friday, September 26, 2014.

Katherine Melot (plaintiff) and her husband Billy owe the government millions of dollars in federal taxes, and Billy is serving a prison sentence for tax crimes. The tax debt led the government to foreclose on the Melots’ properties. The Melots tried to stop the foreclosures using fraudulent methods — namely, by asserting liens on the property in the name of Stephen Byers, an incarcerated and destitute person. The liens and Byers’ motion to intervene in the foreclosure proceedings were signed by Mrs. Melot and they were mailed from the address of a friend of the Melots. The government suspected fraud and, at the hearing on the motion to intervene, presented evidence tending to show the scheme between Melot and Byers.

At the hearing, Mrs. Melot’s counsel requested notice prior to the imposition of any sanctions, and the magistrate noted that the Melots would be noticed on any hearing regarding the contempt. The magistrate certified criminal contempt by the Melots. More than a year later, the district court issued an order addressing the contempt certifications, and, recognizing the costs of prosecuting a criminal contempt matter, declined to order contempt, instead imposing the following sanctions: (1) removal of Mrs. Melot and her children from the property; (2) reimbursement of the government’s costs for the hearing; (3) striking the Melots’ pending motions, responses to motions, and requests for stays; and (4) imposing filing restrictions.

Mrs. Melot appealed the sanctions, arguing the district court violated the Fifth Amendment’s Due Process clause by imposing sanctions without giving the Melots notice and an opportunity to be heard. The Tenth Circuit agreed. Sanctions cannot be imposed without notice that sanctions are being considered by the court and a subsequent opportunity for the defending party to be heard. Although the magistrate had provided notice of the possibility of criminal contempt, there was no notice of the imposition of sanctions. The Tenth Circuit reversed the district court’s sanction order and remanded for further proceedings, noting that the district court was not barred from re-imposing sanctions after proper notice and hearing.