June 24, 2017

Colorado Court of Appeals: At-Risk Status of Victim Need Not Be Known to Defendant to Apply

The Colorado Court of Appeals issued its opinion in People v. Nardine on Thursday, June 2, 2016.

C.R.S. § 18-6.5-103(7)(c)—Mens Rea Element—At-Risk Juvenile—Prosecutorial Misconduct—Character Evidence—Other Acts Evidence.

Nardine was convicted of unlawful sexual conduct on an at-risk juvenile.

On appeal, Nardine contended that C.R.S. § 18-6.5-103(7)(c) has an implied mens rea element that requires the prosecution to prove that a defendant knew of the victim’s at-risk status. He thus argued that the evidence was insufficient to convict him and the trial court erroneously instructed the jury by submitting a special interrogatory that did not include a mens rea for the at-risk element. The court of appeals disagreed with his interpretation of the statute. A defendant need not know that the victim is “at-risk” in order to be convicted of unlawful sexual contact on an at-risk juvenile. Consequently, Nardine’s challenges to the sufficiency of the evidence and the special interrogatory were rejected.

Nardine also contended that numerous instances of prosecutorial misconduct during closing argument, in their totality, rose to the level of plain error and required reversal of his conviction. Under the circumstances of this case, the prosecutor improperly (1) characterized the defense theory as a disingenuous scheme commonly perpetuated by defense attorneys to take advantage of victims with mental illness to obtain wrongful acquittals; (2) appealed to the jurors’ religious beliefs and “lambasted” the defense theory by characterizing it as an attack on these beliefs; (3) argued that defense counsel did not believe his own client; (4) argued facts outside the record; and (5) vouched for witness credibility. Because the misconduct so undermined the fundamental fairness of the trial as to cast serious doubt on the reliability of the verdict, reversal was required.

Additionally, Nardine contended that the trial court should have excluded CRE 404(a) character evidence that he was “a sexual predator” and “not a very good person,” and CRE 404(b) evidence of specific other acts of sexual misconduct. The witness statements about Nardine being “not a good person” and a “sexual predator” were inadmissible under CRE 404(a). Evidence of other acts of sexual misconduct against others, however, was permissible to show that Nardine had a similar intent, motive, common plan, scheme, and method of operation.

The judgment was reversed and the case was remanded.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Aggravated Sentence Upheld Where Jury Would Have Found Supporting Facts

The Colorado Court of Appeals issued its opinion in People v. Mountjoy on Thursday, June 2, 2016.

Consecutive Sentencing—Aggravated Range—Jury—Evidence.

Defendant was convicted of manslaughter, illegal discharge of a firearm (reckless), and tampering with physical evidence. The trial court imposed a sentence in the aggravated range on each count, to be served consecutively.

On appeal, defendant first contended that each of his aggravated range sentences violated Apprendi v. New Jersey and Blakely v. Washington. Answering a novel question, the court of appeals determined that if a trial court sentences in the aggravated range based on facts not found by a jury, the sentence may be affirmed based on harmless error if the record shows beyond a reasonable doubt that a reasonable jury would have found those facts had the jury been requested to do so by special interrogatory. Based on the overwhelming evidence of guilt in this case, a jury would have found the facts on which the trial court relied in imposing aggravated range sentences, and therefore any error was harmless beyond a reasonable doubt.

Defendant also contended that the trial court abused its discretion in sentencing him consecutively on each conviction. A trial court may impose either concurrent or consecutive sentences where a defendant is convicted of multiple offenses. But when two or more offenses are supported by identical evidence, the sentences must run concurrently. Here, separate acts supported defendant’s convictions for manslaughter and illegal discharge of a weapon. Further, the facts supporting the tampering with evidence conviction did not involve the same acts as either the illegal discharge or manslaughter convictions. Because the record shows that each conviction was supported by distinct evidence, the trial court did not abuse its discretion in imposing consecutive sentences.

The sentences were affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Community Corrections Resident Has Little to No Expectation of Privacy

The Colorado Court of Appeals issued its opinion in People v. Triplett on Thursday, June 2, 2016.

Residential Community Corrections Facility—Search—Reasonable Expectation of Privacy—Fourth Amendment—Fifth Amendment—Voluntary Statements.

Triplett was serving a sentence at a residential community corrections facility. A community justice officer conducted an unscheduled search of Triplett’s clothing while he was showering and discovered a vial of drugs. Triplett was convicted of possession of a controlled substance.

On appeal, Triplett contended that the trial court erred in denying his motion to suppress  (1) the drugs found in his clothing, because this find resulted from an unconstitutional search, and (2) his statements to the police officer who questioned him about the drugs, because the statements should have been suppressed as “fruit of the poisonous tree” and were involuntary. The court of appeals found that the search was proper because, as an inmate, Triplett had no reasonable expectation of privacy in his clothing while at the residential community corrections facility, and the search was reasonable under the Fourth Amendment. Because the search was reasonable, Triplett’s argument that the statements he made to the police officer were fruit of the poisonous tree failed.

Alternatively, Triplett contended that his statements to the police officer should have been suppressed under the Fifth Amendment as involuntary under the totality of the circumstances. The court disagreed, finding the statements were voluntary and admissible.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Substantial Nexus Must Exist Between Confinement and Charge for PSCC

The Colorado Court of Appeals issued its opinion in People v. Fransua on Thursday, May 19, 2016.

Calculation of Presentence Confinement Credit.

On October 25, 2013, Fransua was arrested and charged with first degree criminal trespass of a dwelling, second degree burglary, third degree assault, and harassment (the 2013 charges). He was released on bond on December 5, 2013. On March 1, 2014, Fransua was arrested for violating his bond conditions and trespass (the 2014 charges).

Fransua ultimately pleaded guilty to attempted burglary in the 2013 case in exchange for dismissal of all the other 2013 and 2014 charges. On June 16, 2014, he was sentenced to five years in community corrections. He served this sentence until September 23, 2014, when he walked away from the community corrections facility. He was arrested on October 19, 2014. On November 10, 2014, he was resentenced to five years in the custody of the Department of Corrections.

At resentencing, the court stated Fransua was entitled to presentence confinement credit (PSCC) for time served only on the case that he was sentenced on. The court found this amounted to 162 days, declining to award credit for the 108 days served from March 1, 2014 to June 16, 2014.

On appeal, Fransua argued the failure to award credit him for the 108 days was error. The Court of Appeals stated that a defendant is entitled to PSCC if the period of confinement was attributable to the sentence imposed.        Applying this test, the Court found that Fransua’s confinement from March 1, 2014 to June 16, 2014 was on charges that were independent and distinct from the 2013 burglary charge and there was no substantial nexus between these charges and the sentence imposed. Therefore, the district court was correct in not giving him PSCC for that time.

Fransua also argued that the district court miscalculated the time for which he did receive credit. The Court agreed, finding that he should have been credited 164 days, not 162, because the district court failed to count the first days of his 2013 and second 2014 jail confinements.

The order was affirmed in part and reversed in part, and the case was remanded.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Reversal Required if Alternate Juror Present During Deliberations

The Colorado Court of Appeals issued its opinion in People v. Riley on Thursday, May 19, 2016.

D.M. saw a man masturbating in the alley behind her house. She saw him again in a different location when she went to pick up her daughter from preschool, and stopped at the Weld County Sheriff’s Office to report the incident. When she returned home, he was still masturbating outside her house, so she called 911. Defendant was arrested and put in the back of the patrol car with handcuffs fastened in front of him. While transporting him, the deputy heard the sound of clanking metal and pulled over. She lifted up defendant’s shirt and saw flesh in the open V in the crotch of his pants.

Defendant was charged with and convicted of indecent exposure (third or subsequent offense) and two counts of public indecency. He appealed, asserting numerous contentions of error. The court of appeals first found that by requesting the lesser non-included offense of public indecency, defense counsel invited error and could not complain that the evidence was insufficient to support the charge. The court of appeals found that defense counsel’s strategic request precluded a contrary argument on appeal.

Next, defendant argued that the trial court erred by failing to instruct the jury on the definition of “public place.” The court of appeals found that defense counsel waived any objection by agreeing to the jury instructions. The court also disagreed with defendant’s argument that the prosecutor committed misconduct by referring to the victim’s honesty. The court did not find the prosecutor’s remarks improper.

Defendant next contended that the alternate juror was present for deliberations and therefore he was entitled to a new trial. The court of appeals found the record inconclusive as to whether the alternate was present during deliberations, and remanded for an evidentiary hearing to determine whether the alternate was present. If the alternate was present, the court of appeals instructed the trial court to vacate the convictions and hold a new trial. If the alternate was not present, there was no error.

Colorado Court of Appeals: Amendment of Restitution Award Not “Ministerial” Because it Affects Sentence

The Colorado Court of Appeals issued its opinion in People v. McLain on Thursday, May 19, 2016.

Defendant pleaded guilty to one count of theft and was sentenced to five years in community corrections. The prosecution requested restitution in the amount of $1,000 for the victim and $2,852.98 for the victim’s insurance company, to which the defendant did not object. The court granted the prosecution’s restitution request. Ten months later, the prosecution filed a Crim. P. 36 amended motion to impose restitution, maintaining she had made a clerical error and had neglected to request the $8,159.91 in losses sustained by the victim. The court granted the prosecution’s motion without waiting for a response from defendant. Five days later, Defendant filed an objection to the prosecutor’s request for additional restitution, arguing the request was untimely under the restitution statute and Crim. P. 36 did not apply. After a short hearing, the court determined it could correct the prosecution’s “ministerial error” and amended the restitution order.

On appeal, Defendant argued the court could not amend a final order of restitution to increase his obligation. The court of appeals agreed. The court noted that restitution is part of a sentence, and once a sentence is imposed and the defendant begins serving it, an increase in restitution violates the prohibition against double jeopardy. Although the prosecution argued that it had reserved the right to increase the restitution amount, the court of appeals disagreed, finding instead that the prosecution had proposed a concrete figure without any reservation and the figure was accepted by the district court. The court of appeals further found that Crim. P. 36 could not be applied in this case since the restitution increase amended the sentence itself.

The court vacated the judgment and remanded with directions to reinstate the original restitution award.

Colorado Court of Appeals: Defendant Has No Right to Access Witness’s Competency Evaluation

The Colorado Court of Appeals issued its opinion in People v. Zapata on Thursday, May 19, 2016.

Defendant’s ex-girlfriend claimed the owner of the convenience store at which she worked had sexually harassed her, including grabbing her crotch, buttocks, and breasts. Defendant and his friend of six months, Murillo, went to the convenience store late one night, and Murillo quickly walked behind the counter and stabbed the owner’s son with a knife. A high-quality surveillance video showed the ensuing struggle, with Defendant watching from the other side of the counter. When the owner’s son began hitting Murillo on the head with a hammer, he pleaded with Defendant for help, and Defendant turned and ran.

Defendant was charged with conspiracy to commit first degree murder, attempted first degree murder, and first degree assault. Murillo, who suffered permanent brain damage as a result of the incident, was charged separately. He pleaded guilty in his case and testified at Defendant’s trial, remarking that he was testifying against Defendant because Defendant had left him at the store to die. The jury found Defendant guilty of attempted second degree murder and first degree assault.

He appealed, contending the district court erred by not requiring the prosecution to disclose statements Murillo made during competency evaluations in his separate trial and by admitting res gestae evidence of defendant’s controlling and threatening behavior with his ex-girlfriend. The court of appeals found no error. As to the competency evaluations, the district court ruled that Defendant was not entitled to them as a matter of law, and the court of appeals agreed. The court noted that Murillo had a valid privilege that he did not waive. The court further found that Defendant’s Confrontation Clause rights did not trump Murillo’s privilege.

The court of appeals also found that if there was error in admitting the res gestae evidence regarding Defendant’s controlling behavior, it was harmless. The court noted that even without the res gestae evidence, the prosecution’s evidence in the case was strong and the defense theory was weak, therefore even if the evidence was erroneously admitted, any error was harmless.

The judgment of conviction was affirmed.

Tenth Circuit: Article III “In Custody” Requirement Treats Consecutive Sentences as One Continuous Stream

The Tenth Circuit Court of Appeals issued its opinion in Hagos v. Raemisch on Tuesday, December 29, 2015.

Abraham Hagos is incarcerated in Colorado state prison for multiple convictions stemming from two prosecutions. In the first case, he was convicted of first-degree murder, attempted first-degree murder, conspiracy to commit first-degree murder, and two counts of retaliation against a witness (the murder case). In the second, he was convicted of first-degree kidnapping, first-degree burglary, felony menacing, and conspiracy (the kidnapping case). He is serving two consecutive life sentences, one from each case. Hagos appealed his convictions in the kidnapping case, which were affirmed on direct appeal by the Colorado Court of Appeals. The Colorado and United States supreme courts denied certiorari. Hagos then sought state post-conviction relief, which was denied by the district court, court of appeals, and supreme court. He then filed a federal § 2254 petition, which the district court dismissed, concluding it did not satisfy the Article III case or controversy requirement. The district court issued a COA on this issue.

Hagos also appealed his convictions in the murder case. The Colorado Court of Appeals affirmed on direct appeal, and the Colorado and United States supreme courts again denied certiorari. Hagos filed a § 2254 petition in the murder case, which the district court denied. The Tenth Circuit dismissed the matter after denying Hagos’ request for a COA. Hagos then filed a post-conviction motion in state court, which is still pending.

Hagos’ § 2254 petition was pending in the Tenth Circuit when he filed his § 2254 petition in the kidnapping case. The district court sua sponte ordered Hagos to show cause why the kidnapping case proceedings should not be stayed pending the outcome of the murder case proceedings. The court evaluated the “in custody” requirement for habeas relief and decided that even if it invalidated the kidnapping convictions, Hagos would remain incarcerated for life due to the murder convictions. The district court concluded that if granting habeas relief in Hagos’ kidnapping case would not reduce his confinement, the Article III case or controversy requirement was not satisfied. The district court disagreed with Hagos’ arguments against the stay and enforced it during the pendency of the proceedings in the murder case. After the Tenth Circuit dismissed Hagos’ petition and the U.S. Supreme Court denied certiorari, the district court dismissed Hagos’ § 2254 petition in the kidnapping case for the same reasons it outlined in its stay order.

The Tenth Circuit conducted a de novo review of the district court’s dismissal of Hagos’ § 2254 petition. The Tenth Circuit first noted that Hagos is “in custody” for Article III purposes because his two life sentences run consecutively, following Supreme Court precedent that explains that consecutive sentences are to be treated as a continuous stream. The Tenth Circuit found the district court’s reliance on a different case misplaced, since that ruling only affected expired concurrent sentences. The Tenth Circuit further explained that Hagos’ petition satisfied the case or controversy requirement because even though providing habeas relief in the kidnapping case would not affect the duration of his sentence, it could affect his prisoner level and availability of certain prison programs.

The Tenth Circuit reversed and remanded for consideration of Hagos’ § 2254 petition.

Colorado Supreme Court: Privilege Against Self-Incrimination Precludes Revocation of Probation

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

Fifth Amendment—Probation Revocation.

The Supreme Court concluded that on the facts presented here, defendant’s Fifth Amendment privilege against self-incrimination precluded the district court from revoking his sex offender intensive supervision probation based on his refusal to answer a polygraph examiner’s question regarding his use or viewing of child pornography while he was on probation. On the record before the Court, however, the Court was unable to determine whether defendant’s privilege against self-incrimination precluded the district court from revoking defendant’s probation based on his refusal to answer questions concerning any post-trial sexual fantasies involving minors that he might have had within the six months immediately preceding the polygraph examination. Accordingly, the Court made its rule to show cause absolute and remanded the case to the district court with directions that the court conduct further proceedings as more fully set forth in this opinion.

Summary provided courtesy of The Colorado Lawyer.

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.