July 29, 2015

Colorado Court of Appeals: Ineffective Assistance Claims Improperly Asserted in Crim. P. 33 Motion

The Colorado Court of Appeals issued its opinion in People v. Lopez on Thursday, April 23, 2015.

Assault—Menacing—Obstructing a Peace Officer—Jury Instruction—Attempt—Ineffective Assistance of Counsel—Crim.P. 33.

Defendant assaulted his wife and broke her clavicle. A uniformed officer found defendant outside the hospital. When the officer attempted to speak to him about his wife’s injuries, defendant became aggressive and threatening toward the officer. A jury convicted defendant of second-degree assault causing serious bodily injury, menacing by the use of a deadly weapon, and obstructing a peace officer.

On appeal, defendant contended that the evidence was insufficient to establish that he committed the crime of menacing against the police officer. Evidence showed that defendant made a threat and that he placed or attempted to place the first officer in fear of imminent serious bodily injury by telling her he had a knife and approaching her in an aggressive manner. This was sufficient to support a conviction for misdemeanor and felony menacing.

Defendant contended that the record did not contain sufficient evidence to support the conviction for obstructing a peace officer because the officer had not arrested nor intended to arrest defendant at the time. The obstructing statute is not limited to officers making arrests, and there was sufficient evidence that defendant’s conduct violated the obstructing statute even though the first officer did not arrest him.

Defendant also argued that the trial court erred when it instructed the jury on criminal attempt, even though the prosecution had not charged defendant with attempt. Because defendant was charged with menacing, and menacing includes the element of attempt, the court did not err in instructing the jury on the definition of attempt.

Defendant argued that the trial court erred when it denied his motion for a new trial because his trial counsel had been ineffective. Because defendant raised this as a Crim.P. 33 motion instead of a Crim.P. 35(c) motion, the trial court’s decision to deny defendant’s Crim.P. 33 motion without a hearing was reviewed for an abuse of discretion. The Court of Appeals found that the trial court’s rulings were not manifestly arbitrary, unreasonable, or unfair because defendant failed to prove prejudice based on any alleged errors. The judgment was affirmed.

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

Colorado Court of Appeals: Evidence of Defendant’s Gang Membership Admissible to Show Motive

The Colorado Court of Appeals issued its opinion in People v. Clark on Thursday, April 23, 2015.

Murder—Evidence—Gang Membership—Collateral—Fifth Amendment Privilege—Prior Consistent Statement—Jury Instruction—Complicity—Juror Misconduct.

After getting into an altercation at a club on New Year’s Eve, defendant and Daniel Harris fired gunshots aimed at an oversized limousine, which left Darrent Williams, a member of the Denver Broncos football team, dead; two additional people wounded; and fourteen others uninjured but shaken. A jury found defendant guilty of one count of murder (extreme indifference), one count of murder (after deliberation), sixteen counts of attempted first-degree murder, two counts of second-degree assault, sixteen counts of violent crime, and one count of possession of a weapon by a previous offender.

On appeal, defendant argued that the court erred by admitting evidence and testimony regarding his gang membership, as well as expert testimony about gang origin, structure, psychology, hierarchy, and presence in Denver. Because defendant’s gang affiliation had motivated him to participate in the shooting, this evidence was admissible to show motive.

Defendant asserted that the trial court abused its discretion by precluding certain lines of inquiry during his cross-examination of three witnesses. It was not an abuse of discretion to prohibit cross-examination of the factual details underlying other incidents because this information was collateral and inadmissible. Further, defense counsel had already established that the witnesses had been dishonest in the past.

Defendant asserted that the trial court erred in its handling of two witnesses who refused to answer questions based on the Fifth Amendment’s privilege against self-incrimination. It was not an abuse of discretion for the trial court to grant Bragg’s (Harris’s brother) motion to quash the subpoena to testify before subjecting him to questioning in front of the jury. Additionally, it was not error for the court to sustain Harris’s invocation of the Fifth Amendment privilege because it was at least possible that his response could have incriminated him.

Defendant contended that the trial court abused its discretion by admitting the entire videotaped interview of Harris as a prior consistent statement. Because the court gave defense counsel extensive leeway to attack Harris’s credibility with respect to his testimony in this case and his prior interactions with police officers, admission of the entire video was necessary to give the jury the full picture of what he had said to the police.

Defendant additionally argued that the prosecution violated his due process rights because it knowingly used Harris’s false evidence to obtain his conviction, and the prosecution improperly argued inconsistent factual theories. However, there is no evidence of perjury in the record, and the trial court did not err by allowing the prosecution to present alternative legal theories in this single trial involving this single defendant.

Defendant asserted that certain jurors’ actions occurring during trial constituted juror misconduct. The affidavit tendered by defendant contained hearsay evidence that two jurors had conducted experiments on their own to weigh some of the evidence, and that an alternate juror who was removed from the case had communications with a deliberating juror about the case. Although the affidavit was based on hearsay, the trial court erred by not considering the allegations set forth in the affidavit when it denied defendant’s motion for a new trial without a hearing. Therefore, the case was remanded for an evidentiary hearing on the issue of juror misconduct.

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

Tenth Circuit: Strict Liability Offense Does Not Qualify as Crime of Violence for Sentencing

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

Reginald Gerome Wray pleaded guilty to being a felon in possession of a firearm and was sentenced to 77 months’ imprisonment and three years’ supervised release. On appeal, Mr. Wray disputed that his prior conviction for “sexual assault – 10 years age difference” constitutes a crime of violence to increase his base sentencing level. Mr. Wray argued that under the U.S. Supreme Court’s decision in Begay v. United States, 553 U.S. 137 (2008), his prior conviction should not count as a crime of violence for sentencing purposes.

The Tenth Circuit analyzed U.S.S.G. § 4B1.2 and its application note. The circuit addressed whether Mr. Wray’s offense qualified as a “forcible sex offense” under the language of the application note or if it was conduct that presented a serious risk of potential injury under the residual clause, § 4B1.2(a)(2).

The Tenth Circuit employed a categorical approach in determining whether Mr. Wray’s prior offense was a crime of violence. Analyzing Supreme Court precedent in Begay and Sykes, the Tenth Circuit found that Begay applied to strict liability or negligence crimes, while the Sykes analysis of whether the conduct was purposeful, violent, or aggressive defined the level of risk. Turning to Mr. Wray’s offense, the Tenth Circuit first addressed the government’s argument that all statutory rape offenses are necessarily forcible because minors are not legally able to consent and rejected it. Applying the reasoning of the Fourth Circuit in a similar matter, the Tenth Circuit found that not all sex offenses where there is no legal consent are forcible, and that the absence of legal consent does not preclude the possibility of actual consent. The Tenth Circuit further found that Colorado statutes specifically contemplate non-forcible sex offenses, and Mr. Wray’s offense was not categorically forcible.

Next, the Tenth Circuit evaluated whether Mr. Wray’s offense fell within the residual clause and found that it did not. Following Begay, the Tenth Circuit found that the elements of Mr. Wray’s offense indicated it was a strict liability crime, since the offender need not have knowledge of the victim’s age in order to be culpable. The Tenth Circuit found that because the crime at issue was a strict liability offense, it fell within the Begay exception and did not qualify as a crime of violence.

The case was remanded for resentencing.

Tenth Circuit: Federal Revocation Proceeding Inappropriate Venue for Collateral Attack on State Court Conviction

The Tenth Circuit Court of Appeals issued its opinion in United States v. Engles on Wednesday, March 4, 2015.

Billy Engles, a registered sex offender, was on federal supervised release for an unrelated offense when he accompanied his then-girlfriend to her daughter’s high school to update emergency contact information. He was at the school for approximately ten minutes. A school employee recognized Engles as a sex offender and reported his visit. Engles was charged with violating Oklahoma’s Zone of Safety Around Schools Statute, which prohibits sex offenders from “loitering” on or around schools. Engles argued in state court that he was not “loitering” because his visit to the school was for a specific purpose and was very short, but he was ultimately convicted. He is appealing his state court conviction.

The federal court revoked Engles’ supervised release based on the state court conviction, and Engles appealed. On appeal, however, Engles did not dispute that his criminal conviction provided an adequate evidentiary basis for revocation of release, but rather argued that the conduct complained of in Oklahoma state court did not constitute “loitering.” The Tenth Circuit characterized Engles’ argument on appeal as a straightforward collateral attack on his state court conviction. Noting that Engles must challenge his conviction in state court rather than through a collateral attack in the revocation proceeding, the Tenth Circuit affirmed the revocation of Engles’ supervised release. In a footnote, the Tenth Circuit added that nothing in its opinion prevented Engles from filing a future motion to vacate his supervised release revocation, should he prevail in his state court appeal.

Colorado Court of Appeals: Specific Statutory Medical Marijuana Registry Offenses Not Exclusive Means of Prosecution for Violations

The Colorado Court of Appeals issued its opinion in People v. Montante on Thursday, April 9, 2015.

Physician—Medical Marijuana—Attempt to Influence a Public Servant—Lesser Non-Included Offense—Jury Instructions—Unconstitutionally Vague—First Amendment—Motion to Suppress—Expert Witness.

Defendant worked as a contract physician at a medical marijuana clinic. Defendant issued “Nick Moser,” an undercover police detective, a Physician Certification stating that Moser suffered from a debilitating medical condition and might benefit from the medical use of marijuana despite the fact that Moser did not suffer from any medical conditions. Defendant was charged and convicted of attempt to influence a public servant.

On appeal, defendant argued that the trial court erred in denying his pretrial motion to dismiss the charge because the legislature proscribed and directed punishment for his conduct in the specific medical marijuana registry fraud statute. Although the statute could apply to a physician’s recommending medical marijuana in a Physician Certification, it does not preclude prosecution for defendant’s conduct under the attempt to influence a public servant statute.

Defendant argued that the trial court erred in denying his request for a lesser non-included offense jury instruction on medical marijuana registry fraud under CRS § 18-18-406.3(2)(a). There was no evidentiary basis on which the jury rationally could have convicted defendant of medical marijuana registry fraud but acquitted him of attempt to influence a public servant. Consequently, the jury could not rationally have convicted defendant of the lesser offense and acquitted him of the greater. Accordingly, the trial court did not err in rejecting defendant’s tendered instruction.

Defendant argued that the attempt to influence a public servant statute is unconstitutional because it is vague as applied to him and violates his free speech rights under the First Amendment. The statute was sufficiently clear that it prohibited defendant’s alleged conduct. Furthermore, false representations such as those made by defendant are not protected by the First Amendment.

Defendant argued that the trial court erred in denying his motion to suppress because the trial court incorrectly concluded that he was not in custody at the time the statements were made. The interview took place at defendant’s clinic, he was not coerced, and the statements were made voluntarily. Therefore, defendant was not in custody when the interview took place and Miranda warnings were not required.

Defendant argued that the trial court erred in admitting the prosecution’s expert testimony on general medical assessments, examinations of patients, and establishing a bona fide physician-patient relationship. The physician was qualified as an expert, and his testimony could have assisted the jury in determining whether defendant’s representations were false. Therefore, the trial court did not abuse its discretion in determining that the testimony met the requirements of CRE 702 and was not excludable under CRE 403. The judgment was affirmed.

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

Colorado Court of Appeals: Admission of Voice Exemplar Did Not Violate Right Against Self-Incrimination

The Colorado Court of Appeals issued its opinion in People v. Ortega on Thursday, April 9, 2015.

Voice Identification—Self-Incrimination—Physical Evidence—Due Process—CRE 403—Prosecutorial Misconduct.

While at a public park, an undercover police officer who was wearing a wire bought marijuana from a man who was later identified as Ortega. At trial, the prosecutor moved to have Ortega read a statement to allow the jury the opportunity to match his voice with the person speaking on the recording of the drug deal.

On appeal, Ortega argued that the voice identification procedure violated his right against self-incrimination, the right to due process, and CRE 403. The voice exemplar provided by defendant was physical evidence and not testimonial. Therefore, the procedure did not violate Ortega’s right against self-incrimination. Additionally, although the jurors had not seen or heard Ortega before trial, they listened to the officer’s and detective’s testimony describing their out-of-court identifications of Ortega. This testimony gave them “an independent basis” for identifying Ortega as the seller. Therefore, the totality of the circumstances indicates that the identification procedure did not violate Ortega’s right to due process. Finally, the trial court’s determination that the voice exemplar posed a minimal risk of unfair prejudice was not “manifestly arbitrary, unreasonable, or unfair.”

Ortega also argued that the prosecutor’s comments during closing argument appealed to the jurors’ fears and concerns for public safety, thus denying him a fair trial. The prosecutor’s comments were an improper attempt to persuade the jurors to convict defendant “in order to combat evil for the community.” However, because the comment was an isolated incident in an otherwise proper closing argument, the error was harmless.

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

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.