May 22, 2013

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Colorado Court of Appeals: Experts’ Testimony Regarding Drug Use, Psychopathy, and Lack of Empathy and Remorse Were Relevant and Properly Offered

June 11, 2012 by Leave a Comment

The Colorado Court of Appeals issued its opinion in People v. Herdman on June 7, 2012.

Sexual Assault—Expert Testimony—Mental Condition—Involuntary Intoxication—Relevance—Lay Witness Testimony—Hearsay—Deadly Weapon.

Defendant Robert Herdman appealed his judgment of conviction for sexual assault, second-degree kidnapping, and a crime of violence sentence enhancer. The judgment was affirmed and the case was remanded with directions.

Herdman contended that the trial court reversibly erred in admitting testimony of the prosecution’s experts. The prosecution called the bond examiner, the competency examiner, and the sanity examiner to testify regarding the cause of Herdman’s psychological problems and mental state. Pursuant to CRS § 16-8-107(1.5)(a), the prosecution is allowed to introduce evidence developed in the course of a court-ordered examination to rebut mental condition evidence introduced by a defendant to show incapacity to form a culpable mental state. Here, the experts’ testimony regarding Herdman’s cocaine use, psychopathy, narcissism, malingering, and lack of empathy and remorse were relevant, were properly offered to rebut his claim of involuntary intoxication, and were not offered to prove bad character. Further, the admission of this testimony did not violate Herdman’s privilege against self-incrimination.

Herdman next contended that the court reversibly erred in allowing the bond examiner to testify, because the bond examiner’s testimony was irrelevant and highly prejudicial, and amounted to evidence of Herdman’s bad character. However, the bond examiner’s testimony did not pertain to Herdman’s state of mind at the time of the offense. Therefore, any error was harmless.

Herdman contended that the trial court reversibly erred in allowing Sergeant Gallegos to testify that (1) Herdman did not serve in Iraq; (2) he did not have post-traumatic stress disorder; and (3) his behavior after his return from overseas was “rebellious.” Although the testimony about Herman’s service in Iraq was inadmissible hearsay, any error was harmless, and the remainder of the testimony was proper.

Herdman argued that the evidence presented was insufficient to support his convictions for sexual assault and the crime of violence sentence enhancer, because there was no evidence that he used a deadly weapon to cause submission of the victim. The prosecution presented evidence that Herdman showed the victim his knife, threatened to cut her if she did not do as he said, ordered her to an apartment, put the knife beside the bed where she could see it, and then sexually assaulted her. Such evidence was more than sufficient to allow a reasonable jury to conclude that Herdman used, possessed, or threatened to use a deadly weapon and that he then used the weapon to cause the victim’s submission to the sexual assault.

Herdman also argued that his sexual assault conviction must merge into his kidnapping conviction because the former is a lesser-included offense of the latter. A sentence enhancer is not a substantive element of an offense for purposes of double jeopardy analysis. Accordingly, Herdman’s double jeopardy argument failed. The judgment was affirmed and the case was remanded to the trial court to correct the mittimus.

Summary and full case available here.

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Tenth Circuit: Court Made Adequate Finding of Reliability with Respect to Expert’s Testimony

June 7, 2012 by Leave a Comment

The Tenth Circuit Court of Appeals published its opinion in United States v. Avitia-Guillen on Wednesday, June 6, 2012.

The Tenth Circuit affirmed the district court’s decision. Petitioner, a citizen of Mexico, “lawfully entered the United States in 1955. He obtained permanent resident status in 1988 but was deported in June 1996 after being convicted of an aggravated felony. Immigration and Customs Enforcement discovered [Petitioner] in Denver, Colorado, in May 2011. A grand jury indicted [Petitioner] with one count of being found in the United States after deportation . . . . At trial, the Government called a fingerprint examiner with the Colorado Bureau of Investigation (CBI) . . . to testify that [Petitioner]’s fingerprints matched those on his 1996 deportation records.” Petitioner’s counsel objected to [the witness'] qualifications, but the district court overruled him. After being found guilty, Petitioner argued on appeal that the district court failed to make adequate findings of reliability with respect to the expert’s testimony.

On appeal, Petitioner did not renew his objection to the witness’ qualifications as an expert witness, and he did not challenge the scientific reliability of fingerprint identification. Instead, he argued the district court erred “by failing to create an adequate record demonstrating that it satisfied its gatekeeping obligations.” The Court determined that to “adequately demonstrate by specific findings on the record that [the district court] has performed its duty as gatekeeper,” a court must make at least “some kind of reliability determination. . . . The key inquiry is whether the appellate court can determine whether the district court ‘properly applied the relevant law.’ . . . The district court gave ample evidence it was applying the Rule 702 standard. The court said [the expert] was qualified to testify as a fingerprint examiner based on her ‘training, education, background and experience.’ . . . So the record is sufficient to demonstrate the district court applied the relevant law. . . . . These findings adequately demonstrate the district court did, in fact, ‘perform[] its duty as gatekeeper.’”

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Colorado Court of Appeals: Multiple Errors in Trial Court for Consolidated Workers’ Compensation/Medical Malpractice Actions

May 29, 2012 by Leave a Comment

The Colorado Court of Appeals issued its opinion in Schuessler v. Wolter on May 24, 2012.

Medical Malpractice—Workers’ Compensation Benefits—Jury Instruction—Negligence—Exclusion of Expert—Fair Debatability—Economic and Noneconomic Damages—Designated Nonparty—Comparative Fault—Prejudgment Interest—Subrogation Rights.

In these bad-faith cases, defendants James Wolter, MD and Pinnacol Assurance appealed the judgments entered on jury verdicts in favor of plaintiff Michael Schuessler, who cross-appealed certain trial court rulings. The judgment against Dr. Wolter was reversed and the case was remanded for a new trial as to him. The judgment against Pinnacol was affirmed in part and reversed in part, and the case was remanded for further proceedings.

Schuessler was injured on the job and filed a workers’ compensation claim with R. Merrill, Inc. (Merrill), his putative employer. Pinnacol, which provided workers’ compensation insurance coverage for Merrill, denied the claim. Dr. Wolter, a neurosurgeon, performed surgery on Schuessler for his injuries. The surgery caused damage to his spinal cord. Schuessler commenced a medical malpractice action against Dr. Wolter. Schuessler also filed a common law bad-faith breach of insurance contract action against Pinnacol, contending that it had wrongly denied him workers’ compensation benefits. The cases were consolidated, and a jury awarded damages to Schuessler against Pinnacol and Dr. Wolter.

On appeal, Dr. Wolter contended that the trial court erred in rejecting its proposed jury instruction, arguing that a physician does not guarantee or promise a successful outcome simply by treating or agreeing to treat a patient, and an unsuccessful outcome does not, by itself, mean the physician was negligent. Dr. Wolter’s expert specifically stated that the outcome could occur without negligence. Because the proffered instruction accurately stated the law and no other instruction informed the jury that Dr. Wolter could not be held liable merely because of a bad outcome, it was reversible error for the court to reject it.

Pinnacol asserted that the trial court erred in denying its motion for directed verdict or judgment notwithstanding the verdict. The defense of fair debatability is not in itself a complete defense to a bad-faith claim. Here, the reasonableness of Pinnacol’s conduct was disputed, and a reasonable person could reach the same conclusion as the jury. Accordingly, the trial court did not err in denying the motion.

Pinnacol also argued that the jury awarded excessive and duplicative economic and noneconomic damages to Schuessler, warranting a new trial. However, there was sufficient evidence in the record to support the award of economic damages. Additionally, there was support on record for the noneconomic damages award, and the amount awarded was not so grossly and manifestly excessive as to indicate that it was based on passion or prejudice.

Pinnacol further contended that the damages award was affected by the trial court’s erroneous failure to admit an exhibit it tendered at trial. Pinnacol’s exhibit depicted the amount and duration of its payments to Schuessler in chart form. Because the information contained in the exhibit was covered by other evidence introduced, the trial court abused its discretion in rejecting the exhibit.

Pinnacol asserted that the jury awarded duplicative damages because it awarded Schuessler the same amount of noneconomic damages that it awarded against Dr. Wolter. However, Pinnacol failed to overcome the presumptions that the jury followed the instruction not to award duplicative damages.

Pinnacol contended that the trial court erred in allowing Schuessler’s bad-faith insurance expert to testify at trial. There is no per se requirement that an expert should be excluded unless he or she has adjusted a workers’ compensation claim in Colorado, and Schuessler’s expert was otherwise qualified as an expert. Therefore, the court did not err in allowing this expert’s testimony.

Pinnacol asserted that the trial court erred in rejecting its tendered instruction concerning the liability of a designated nonparty. Pinnacol designated Merrill a nonparty at fault, but Pinnacol failed to establish that Merrill, as Schuessler’s employer, had a legal duty to Schuessler to maintain and immediately produce employment records such that a violation of that duty would give rise to a claim against it by Schuessler.

Pinnacol argued that the trial court erroneously rejected its instruction on the comparative fault of Schuessler. Pinnacol’s assertions that Schuessler was comparatively at fault because he asked for a postponement of the workers’ compensation hearing, failed to attend an appointment with a second doctor, and initially delayed several weeks before going to the doctor after the injury were insufficient to warrant an instruction.

Pinnacol asserted that the trial court’s award of costs should be reversed or reduced. The award of fees, which should be attributable only to the case against Dr. Wolter, should not be assessed against Pinnacol. The case was remanded to reverse this portion of the cost award.

Pinnacol also contended that the trial court improperly awarded prejudgment interest. Because Schuessler’s economic damages did not result from a personal injury inflicted by Pinnacol, the case was remanded for the court to properly compute the prejudgment interest on Schuessler’s economic damages based on the wrongful withholding statute, CRS § 5-12-102(1)(a).

Pinnacol argued that the trial court improperly ruled that it had waived its right to make a subrogation claim against Schuessler’s recovery from Wolter. Waiver is the intentional relinquishment of a known right. Here, Pinnacol did not waive its subrogation rights. Accordingly, on remand, Pinnacol may assert its subrogation rights.

Summary and full case available here.

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Colorado Court of Appeals: Insufficient Evidence Supporting Conviction for Internet Luring and Sexual Exploitation of Child; Sufficient Evidence for Solicitation

April 16, 2012 by Leave a Comment

The Colorado Court of Appeals issued its opinion in People v. Douglas on April 12, 2012.

Attempted Sexual Assaulton a Child—Enticement and Solicitation—Internet Luring and Sexual Exploitation—Evidence—Intent and Motive—Expert or Lay Witness Testimony—Prosecutorial Misconduct—Consecutive Sentences.

Defendant appealed the judgment of conviction entered on jury verdicts finding him guilty of attempted sexual assault on a child, enticement of a child, Internet luring of a child, Internet sexual exploitation of a child, and solicitation to commit sexual assault on a child by one in a position of trust. He also appealed his sentence. The judgment was affirmed in part and vacated in part, and the sentence was affirmed.

Defendant and “Marsha” (mother), who actually was an undercover officer, communicated over the Internet and telephone and via text message regarding defendant’s desire to come to Colorado to establish a sexual relationship with her and her 9-year-old daughter. Defendant arranged to travel to Colorado, and he was arrested when he arrived.

Defendant contended that the convictions for (1) Internet luring of a child; (2) Internet sexual exploitation of a child; (3) enticement of a child; and (4) solicitation must be vacated because the prosecution failed to present sufficient evidence to prove the elements of each offense beyond a reasonable doubt. There was insufficient evidence supporting defendant’s convictions for Internet luring of a child and Internet sexual exploitation of a child because there was no evidence that defendant himself committed the crimes or that he acted as an accomplice to a principal who committed the crimes. As to the solicitation charge, the prosecution was not required to prove that defendant communicated directly with the child; communication with mother as an adult intermediary was sufficient. Further, one may be guilty of enticement by inviting or persuading a child to enter a room within the child’s home with the proscribed intent. Finally, there was sufficient evidence to find defendant guilty of solicitation under the theory that he attempted to persuade mother to act as his accomplice in his commission of sexual assault on a child by one in a position of trust.

Defendant also contended that the trial court erred in admitting evidence of other similar acts and alleged child pornography. This evidence, however, was properly admitted to show intent and motive.

Defendant also argued that the trial court erred in permitting the undercover officer to present expert testimony in the guise of lay witness testimony. The undercover officer’s interpretation of her conversations with defendant did not depend on her specialized skills and training as a police officer. Therefore, any error was harmless.

Defendant further contended that prosecutorial misconduct required reversal. The court instructed the jury not to consider the prosecution’s characterization of the photographs as “child pornography,” and the jury was permitted to see the actual photos to make this determination themselves. Additionally, the prosecutor’s use of the term “grooming” was not improper. Therefore, any error on these issues was harmless.

Defendant also contended that the court erred in imposing consecutive sentences on the enticement and solicitation counts. The court did not abuse its discretion in imposing consecutive sentences in this matter. First, the evidence supporting each count was not identical. Second, the two crimes did not “arise out of the same incident,” because the communications between defendant and mother took place over a period of ten days. Finally, the attempted conviction is not a lesser-included offense of the solicitation conviction.

Summary and full case available here.

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Colorado Court of Appeals: Sufficient Evidence to Prove Conviction for Solicitation and Conspiracy to Commit Assault

April 16, 2012 by Leave a Comment

The Colorado Court of Appeals issued its opinion in People v. Davis on April 12, 2012.

Colorado Organized Crime Control Act—Conspiracy—Assault—Solicitation—Evidence—Statute of Limitations—ExpertTestimony—Habitual Offender—Consecutive Sentence.

Defendant appealed his judgment of conviction entered on a jury verdict finding him guilty of violating the Colorado Organized Crime Control Act (COCCA), conspiracy to commit assault in the second degree, assault in the second degree, and two counts of solicitation of second-degree assault. He also appealed his conviction as a habitual criminal and his 108-year sentence. Defendant’s convictions were affirmed, the sentence was affirmed in part and vacated in part, and the case was remanded to the trial court.

Defendant contended there was insufficient evidence to support his convictions arising from the assault on C.H. and his conviction for soliciting T.M. Because the evidence, including testimony about defendant’s role as the leader of the 211 gang and defendant’s encoded note to T.M. ordering the assault on C.H., supported a finding that defendant ordered the assault on C.H., it was sufficient to establish that defendant intentionally persuaded his fellow gang members to assault C.H. Therefore, the evidence was sufficient to support his conviction for solicitation. Additionally, there was sufficient evidence to prove that defendant conspired with other 211 Crew members to commit second-degree assault on C.H.

Defendant contended that a criminal act that can no longer form the basis of a criminal count because its statute of limitations has expired cannot be used as evidence to support a COCCA conviction. To establish a COCCA violation, the prosecution must show that two or more acts of racketeering activity occurred within a ten-year period. As long as one predicate act of racketeering activity falls within the relevant statute of limitations, other predicate acts occurring within the ten-year period before that act was committed may be used to establish a COCCA violation, even if the earlier acts would be time-barred if separately prosecuted. Here, the prosecution presented four predicate acts that also gave rise to separate counts (namely, the three acts involving the assault on C.H. and the solicitation of T.M). Because there was sufficient evidence to support defendant’s convictions for these acts, there is sufficient evidence to support defendant’s COCCA conviction. Additionally, evidence of the nine predicate acts occurring outside the limitations period established elements of defendant’s COCCA violation and were properly admitted.

Defendant contended that the trial court erred by qualifying a Denver police detective as an expert. At trial, the prosecution designated the detective as an expert witness with specialized knowledge of 211 Crew hierarchy, communication methods, and ideology. At the pretrial hearing, the trial court found that the detective possessed specialized knowledge that was relevant and that would be helpful to the jury. Furthermore, any doubts about the accuracy of the detective’s interpretation of the code, or his lack of experience cracking coded messages, go to the weight of his testimony, not its admissibility. Therefore, the trial court did not abuse its discretion by qualifying the detective as an expert on the 211 Crew.

Defendant also contended that his convictions should be reversed because his co-defendants’ testimony that they had pleaded guilty to COCCA violations was offered as substantive evidence of his guilt. It is proper, however, to use this type of evidence to impeach the credibility of a co-defendant. Therefore, there was no error.

Defendant contended that the trial court erred in determining that he was a habitual offender. Defendant argued that (1) the trial court accepted evidence of his prior convictions in the form of “pen packs” in violation of his right to confrontation; and (2) his right to a jury trial was violated because the trial court rather than a jury determined his guilt. Defendant, however, failed to object to either the admission of the pen packs or the lack of a jury trial. Therefore, the Court of Appeals reviewed only for plain error, and found none.

Defendant further contended and the People agreed that the trial court erred by concluding that it was required by law to order that defendant’s COCCA sentence be served consecutively to the sentences he already was serving. There was no requirement for consecutive sentencing under these circumstances. Therefore, defendant’s COCCA sentence was vacated and the case was remanded to the trial court to determine, in its discretion, whether that sentence should run consecutively to or concurrently with the sentences for the three crimes to which he pleaded guilty in 1995.

Summary and full case available here.

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Report from the ABA House of Delegates Meetings at the 2012 Midyear Meeting in New Orleans

March 15, 2012 by Leave a Comment

I have the privilege of serving the Denver Bar Association as a delegate to the American Bar Association (“ABA”) House of Delegates.  The ABA House of Delegates met at the ABA’s midyear meeting held in New Orleans, Louisiana, on February 6, 2012.  This Article summarizes the House of Delegates events at the midyear meeting and the action taken by the House.

The Midyear Meeting was very well-attended.  It had the best reported attendance on record.  The ABA sponsored numerous programs on issues such as the Ethics 20/20 commission, the state court funding crisis, and efforts to improve access to justice.  There were many important issues addressed by the House of Delegates at the midyear meeting.  This Article summarizes a few of them.

Ethics 20/20 Commission’s White Papers and Proposals Relating to the Ethics of Litigation Financing, Non-Lawyer Ownership of Law Firms, Outsourcing, and the Use of Technology of Mobile Devices

Before the House of Delegates convened, the Ethics 20/20 Commission sent information around to the delegates regarding the work of the Commission and its proposals.  Specifically, the Commission informed the delegates of its plan to bifurcate its presentation of proposals to help facilitate the House of Delegates’ consideration of the Commission’s recommendations.  The decision to bifurcate the presentation of proposals foretells a concern that some of the Commission’s proposals will be controversial and will generate much discussion and debate.

Indeed, from the preview that the Commission has provided, some of the issues that the Commission will put before the House will generate much discussion.  The Commission has produced white papers that discuss many of the complex ethical issues that cannot effectively be addressed through changes to Model Rules.  Specifically, one of the Commission’s white papers discusses ethical issues involved with litigation financing, including issues regarding conflicts of interest, a lawyer’s duty of confidentiality, the attorney-client privilege, and rules regulating the exercise of the lawyer’s independent judgment.  The Commission’ white paper can be found by clicking here.

The Commission also is working on proposals relating to alternative business structures for law firms, outsourcing of legal services and confidentiality-related ethics issues arising from lawyers’ use of technology. Additionally, the Commission also is working on a model rule relating to lawyers’ obligations to retain client files.  An issues paper regarding alternative business structures for law firms – including non-lawyer ownership of law firms – has been distributed by the Commission.  It can be found by clicking here.

During the House of Delegates meeting, Former ABA President Carolyn B. Lamm addressed the House about the Commission’s progress.  President Lamm explained that numerous various roundtable sessions and meetings have been held around the country.  She explained that formal recommendations will be presented at the annual meeting in 2012 and at the midyear meeting in 2013.  President Lamm explained that one of the Commission’s more controversial issues is whether non-lawyers should be allowed under legal ethics rules to have a limited ownership interest in law firms in the United States.  This issue has been discussed extensively in Colorado previously.

President Lamm explained that the Commission is considering other issues relating to the need to balance the convenience and efficiencies inherent in a lawyer’s use of new technologies, while also preserving the lawyer-client relationship, confidentiality, competence and the values of the profession.  President Lamm explained that the Commission plans in presenting proposals on each of these issues for consideration by the House of Delegates.  All interested members of the Bar should get in touch with me or other Colorado delegates to discuss any concerns about any of the issues that are being considered by the Ethics 20/20 Commission, or the proposals that are likely coming from the Commission.

Summary of the House of Delegates

After the House of Delegates convened on February 6, 2012, the Delegates were greeted by Mitchell Landrieu, the Mayor of New Orleans, who also is a lawyer.  Mayor Landrieu talked about the challenges that the city has been through in recent years, with Hurricanes Katrina and Rita, and the BP oil spill.  Mayor Landrieu quipped that the city is “waiting for locusts now.”  Mayor Landrieu’s speech was interesting and insightful, explaining that New Orleans is truly resilient and has become the “a laboratory for innovation and change,” because of the disasters it has suffered.  Mayor Landrieu’s speech was an excellent way to kick-off the work of the House.

After the Mayor’s speech and some other introductory actions, the House got to work debating and voting on resolutions before the House.  The House adopted a number of important resolutions, including:

  • Resolution 101A, which adopted the black letter ABA Criminal Justice Standards on Law Enforcement Access to Third Party which provide a framework through which legislatures, courts acting in their supervisory capacity and administrative agencies can balance the needs of law enforcement and the interests of privacy, freedom of expression and social participation.
  • Resolution 101B, which urged governments at various levels to require laboratories producing reports for use in criminal trials to adopt pretrial discovery procedures requiring comprehensive and comprehensible laboratory and forensic science reports, and listed relevant factors to be included in such reports.
  • Resolution 101C, which urged trial judges who have decided to admit expert testimony to consider a number of factors in determining the manner in which that evidence should be presented to the jury, and also provided guidance about how to instruct the jury in its evaluation of expert scientific testimony in criminal and delinquency proceedings.
  • Resolution 101F, which supported legislation, policies and practices that allow equal and uniform access to therapeutic courts and problem-solving sentencing alternatives, such as drug treatment and anger management counseling, regardless of the custody or detention status of the individual.
  • Resolution 113, which called for adoption as ABA policy uniform standards for language access in courts.  The policy provides clear guidance to courts in designing, implementing, and enforcing a comprehensive system of language access services that is suited to the need in the communities they serve.
  • Resolution 102B, which approved the Uniform Electronic Legal Material Act promulgated by the National Conference of Commissioners on Uniform State Laws in 2011, as an appropriate Act for those states desiring to adopt the specific substantive law suggested therein.  The Uniform Act provides rules for the authentication and preservation of electronic legal material.
  • Resolution 108, which urged state and territorial bar admission authorities to adopt rules and procedures to accommodate the unique needs of military spouse attorneys who move frequently in support of the nation’s defenses.
  • Resolution 111, which urged entities that administer a law school admission test to provide appropriate accommodations for a test taker with a disability to best ensure the exam reflects what the test is designed to measure and not the test taker’s disability.
  • Resolution 302, which supported the principle that “private” lawyers representing governmental entities are entitled to claim the same qualified immunity provided “government” lawyers when they are acting “under color of state law.”  This issue is particularly important given that there is a pending case before the United States Supreme Court considering this question.  See Filarsky v. Delia, U.S. No. 10-1018, argued 1/17/2012.

A summary of the resolutions adopted by the House can be found by clicking here.  Additionally, I can provide a copy of the resolutions to any interested reader. Contact me if interested.

Statement from President Robinson

In addition to this important work, the House of Delegates heard from Bill Robinson, President of the ABA.  President Robinson explained that the most pressing issue facing the legal system today is under-funding of the courts, which is at a crisis level.  President Robinson urged all ABA members to consider the under-funding crisis to be a threat to our liberty and rule of law.  President Robinson explained the ABA’s efforts to combat this crisis, including its extensive education efforts and its efforts to increase public awareness about the crisis.  Additionally, the ABA has made the crisis the core of the law day events, which will focus on the theme: “No Courts, No Justice, No Freedom.”

Nomination of James Silkenat as President-Elect

Additionally, the nominating committee announced that James Silkenat of New York was nominated to be President-Elect Designee of the ABA.  The House of Delegates will vote on his nomination at the Annual Meeting in Chicago this August.  If elected, Mr. Silkenat will serve a one-year term as President beginning in August, 2013.  All members of the Bar are urged to give any input on Mr. Silkenat to me or any of the other Colorado delegates.

Other Matters

Finally, the House of Delegates also considered other matters.  Those other matters included a report from the ABA’s Executive Director, Jack Rives, and a report from the ABA’s treasurer.  The House also heard from Chief Judge Washington, who is the President of the Conference of Chief Justices.  Chief Judge Washington spoke about language access to the courts.  He also discussed the core focuses of the Conference, which are judicial independence and civics education.

Conclusion

I hope this Article sufficiently highlighted many of the more interesting or important the agenda items considered by the House of Delegates at the midyear meeting in New Orleans.  I appreciate all input that any members of the Denver Bar Association have regarding any of the issues that have been considered, or will be considered, by the ABA House of Delegates.

The American Bar Association is offering a free trial membership in the ABA and in a section of the ABA. Sign up here.

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Tenth Circuit: Knowing Element of Possession of Child Pornography Established Through Defendant’s Actions; Probable Cause Existed for Warrant

March 6, 2012 by Leave a Comment

On Tuesday, March 6, 2012, the Tenth Circuit Court of Appeals issued its opinion in United States v. Hammond.

Defendant was convicted of possession or attempted possession of child pornography as a result of an undercover online investigation. He appealed three aspects of his conviction.

First, defendant argued the evidence was insufficient to support his conviction. Specifically, he argued the government failed to establish that he “knowingly possessed” child pornography as required by 18 U.S.C. § 2252(a)(4)(B), alleging he inadvertently downloaded the specifically charged files to his computer. To “knowingly possess” child pornography, the government was required to prove defendant knew of and also controlled (or had the ability to control) the images that formed the basis of the conviction.

The Court found there was ample evidence for a jury to infer Mr. Haymond knowingly possessed the charged images on his computer because he searched for and downloaded child pornography from LimeWire, a file-sharing program. Defendant also admitted in an interview that was addicted to child pornography and used LimeWire to search for and download such images. Viewing the evidence in the most favorable light, the Court determined a reasonable jury could find the defendant guilty beyond a reasonable doubt of having knowingly possessed the charged images. United States v. Ramos-Arenas, 596 F.3d 783 (10th Cir. 2010).

Defendant also contended the evidence was insufficient to establish he knew the charged images depicted minors engaged in sexually explicit conduct. While defendant was correct that the “knowledge” requirement of the statute requires more than establishing he knowingly possessed them, the jury was presented with sufficient evidence from which to conclude that Mr. Haymond used search terms associated with child pornography to download the charged images. That defendant used such search terms established beyond a reasonable doubt that he knew those images contained child pornography.

In arguing the evidence was insufficient to support his conviction, defendant also argued the images had insufficient connection with interstate commerce as required by the statute. To convict a defendant of possessing child pornography in violation of 18 U.S.C. § 2252(a)(4)(B), “the Government was required to prove the visual depictions had been mailed, shipped or transported in interstate or foreign commerce.” United States v. Sturm, 09-1386, ___ F.3d ___ (10th Cir. Feb. 24, 2012) (en banc). The government “can meet its burden of proving the jurisdictional [interstate commerce] element . . . by introducing evidence from which a reasonable jury could conclude the substance of an image of child pornography was made in a state and/or country other than the one in which the defendant resides.” Id. at 24. Government witness Agent Jackson testified that he discovered the photographs originated in Florida. The 10th Circuit Court concluded the government met its burden.

Second, defendant argued the district court erred in denying his motion to suppress evidence obtained as a result of a search of his home. The Court concluded that, under the totality of the circumstances presented in the affidavit, probable cause existed to issue the warrant based on the affidavit of the investigator who conducted the online investigation.

Lastly, defendant argued Dr. Passmore should not have been permitted to testify as an expert under Daubert. During trial, Dr. Passmore, a board-certified pediatrician, testified about the ages of the children depicted in the charged images. Because the government provided sufficiently strong evidence to convict defendant without the testimony of Dr. Passmore, the Court did not decide this issue.

Affirmed on all three points.

 

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Colorado Supreme Court: Trial Court Must Rigorously Analyze the Evidence when Deciding to Certify a Class; Declined to Adopt Specific Burden of Proof

November 2, 2011 by Leave a Comment

The Colorado Supreme Court issued its opinion in Jackson v. Unocal Corp. on October 31, 2011.

Civil Procedure—Class Actions—Burden of Proof—Expert Disputes.

In the lead case in a series of four class action cases, the Supreme Court addressed the standards a trial court must apply when deciding whether to certify a class pursuant to C.R.C.P. 23. The Court declined to adopt a specific burden of proof and therefore reversed the court of appeals’ decision holding that a trial court must apply a preponderance of the evidence standard to C.R.C.P. 23’s class certification requirements. Instead, the Court held that a trial court must rigorously analyze the evidence presented and determine to its satisfaction that each C.R.C.P. 23 requirement is met.

The Court also considered whether a trial court may resolve factual or legal disputes relevant to class certification where those disputes independently overlap with the merits. The Court held that a trial court may consider factual or legal disputes to the extent necessary to satisfy itself that the requirements of C.R.C.P. 23 have been met, but may not resolve factual or legal disputes to screen out or prejudge the merits of the case. The Court extended this holding to expert disputes, such that a trial court may consider expert disputes in determining whether class certification is appropriate, but need not determine which expert will prevail at trial or whether an expert’s testimony ultimately will be admissible at trial.

Summary and full case available here.

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Colorado Court of Appeals: No Privilege Against Self-Incrimination in a Forcible Administration of Medication Hearing

November 1, 2011 by Leave a Comment

The Colorado Court of Appeals issued its opinion in People In the Interest of Strodtman on October 27, 2011.

Forcible Administration of Antipsychotic Medications—Due Process—Automatic Stay.

Respondent Joyce A. Strodtman appealed the magistrate’s order authorizing the Denver Health Medical Center (DHMC) to forcibly administer her antipsychotic medications. The order was affirmed.

Strodtman contended that the magistrate’s order was void for lack of subject matter jurisdiction. The court in which a short-term certification is filed pursuant to CRS § 27-65-107 has original and continuing jurisdiction under CRS § 27-65-111(4) to decide matters concerning forcible administration of medication. Under C.R.M. 6(e)(2)(B), magistrates also possess jurisdiction over these matters. Therefore, the magistrate did not lack jurisdiction to hear and decide Strodtman’s case.

Strodtman also contended that the magistrate violated her due process rights because he failed to conduct a full and fair adversary hearing. When the administration of involuntary antipsychotic medication is at issue, due process requires notice, the right to be present at an adversary hearing, and the right to present and cross-examine witnesses. Here, it was not error for the People to call Strodtman as a witness, because Strodtman had no privilege against self-incrimination in a forcible administration of medication hearing. The court also did not err in qualifying Dr. O’Flaherty, a first-year psychiatry resident at the University of Colorado–Denver, as an expert in medicine, because she had specialized knowledge in treating psychiatric patients. Further, the court did not err in allowing the People’s medical experts to provide hearsay testimony, because it formed the basis of their opinion. In addition, Strodtman did not prove bias merely by showing that the magistrate made a passing comment about the People’s expertise in the matter. Finally, although the magistrate’s comments regarding his personal experience with therapy were inappropriate, the magistrate decided the case based on the proper elements and his personal experience ultimately did not prejudice Strodtman so as to depart from the required impartiality.

Strodtman also argued that the magistrate erred in finding that the People had proved all four elements by clear and convincing evidence. However, the evidence in the record indicates that (1) Strodtman was not competent to participate in treatment decisions because she disagreed with her diagnosis and refused to take medications in the past; (2) Strodtman was not taking medication when she was hospitalized; (3) the medication effectively treated the symptoms that caused her to be hospitalized; (4) without this medication, she would experience significant, long-term deterioration; and (5) Strodtman lacked the capacity to consistently self-medicate, so oral medication taken voluntarily was not an available effective treatment. Strodtman’s need for treatment by antipsychotic injections to keep her from being hospitalized was sufficiently compelling to override Strodtman’s interest in refusing treatment.

Strodtman also argued that the magistrate erred by denying her post-hearing motion seeking an order automatically staying forcible administration pursuant to C.R.C.P. 62. However, a forcible medication administration order is not the type of action contemplated in Rule 62(a). Accordingly, orders for forcible medication administration are not automatically stayed for fourteen days after entry.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on October 27, 2011, can be found here.

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Colorado Court of Appeals: In Premises Liability Case, the Court Appropriately Rejected Insurance Evidence, Proposed Jury Instructions, Expert Witness, and Models

August 22, 2011 by Leave a Comment

The Colorado Court of Appeals issued its opinion in Lombard v. Colorado Outdoor Education Center, Inc. on August 18, 2011.

Premises Liability—Jury Instructions—Evidence—Mistrial—Insurance Coverage—Expert Witness Fees—Copy Costs.

In this premises liability action, plaintiffs Turene Lombard (invitee) and Pueblo School District #60 (school district) appealed from the judgment entered on a jury verdict and the order awarding costs in favor of defendants Colorado Outdoor Education Center, Inc. and Sanborn Western Camps, Inc. (owners).The judgment was affirmed, and the order awarding costs was affirmed in part and vacated in part.

In February 2000, at the request of the school district, invitee, who was a teacher employed by the district, attended an overnight training session at a conference facility and resort owned and operated by owners. Invitee was injured when she fell from a ladder inside her unit while coming down from the unit’s loft area.

Invitee argued initially that the trial court erred in failing to deliver additional instructions to the jury. Two of the proposed instructions by their terms were contrary to law, which provides that violation of a statute or ordinance may be considered merely as “evidence of a failure to exercise reasonable care.” The jury otherwise was adequately and correctly instructed as to the other proposed instruction. Therefore, the trial court did not err in rejecting the proposed instructions.

Invitee next contended that the trial court erred in denying admission of a set of plans for the construction of additional units showing the loft was to be converted to a storage area. The trial court did not abuse its discretion in denying admission of the plans, because this evidence was irrelevant and capable of misleading the jury and confusing the issues.

Invitee also contended that the trial court erred in prohibiting her third endorsed expert witness from testifying on the building code. However, invitee did not demonstrate that this expert’s testimony added anything substantive to the evidence. Because the testimony was cumulative, the trial court did not abuse its discretion in disallowing invitee’s third expert witness.

Invitee next argued that the trial court erred in permitting owners to show to the jury a video recording of a person climbing up and down the ladder to one of the lofts. Whether to allow the use of models or other materials for the purpose of demonstration is a matter within the discretion of the trial court. Therefore, the trial court did not abuse its discretion in admitting the video after the court reviewed it.

Invitee further argued that the trial court erred in denying her motion for a mistrial after owners’ counsel implied during his examination of witnesses and in closing argument that any money judgment would be paid by owners, when, in fact, owners were well insured. Evidence that a party did, or did not, carry liability insurance, is not admissible. Because invitee was not prejudiced by any of the comments, the trial court did not abuse its discretion in denying the motion for a mistrial.

Invitee argued that the award of costs for expert witness fees for witnesses who were not called at trial was error. The trial court did not abuse its discretion to award the costs of experts who were not called to testify when those experts contributed to the cross-examination of invitee’s experts.

Invitee argued that the trial court erred in awarding owners’ costs for copying owners’ client file after the discharge of owners’ first counsel. An attorney is obligated, on termination of the representation, to take reasonable steps to protect the client’s interests, including surrendering the client’s papers and property. Because owners agreed to pay that which they had no other obligation to pay, the order of the trial court awarding the cost of photocopying owners’ client file was vacated.

The school district contended that the trial court erred in awarding costs against it because it is a political subdivision of the state of Colorado and is exempt from an award of costs by C.R.C.P. 54(d). The Court agreed. The judgment was affirmed, and the orders awarding costs for copying owners’ client file on a change of counsel and awarding costs against the school district were vacated. The cost order otherwise was affirmed.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on August 18, 2011, can be found here.

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Colorado Court of Appeals: Sufficient Evidence Presented to Allow Jury to Find that Children Depicted in Pornographic Images Were Real

August 8, 2011 by Leave a Comment

The Colorado Court of Appeals issued its opinion in People v. Brown on August 4, 2011.

Sexual Exploitation of a Child—Photographs—Foundation—Authentication—C.R.E. 403—Expert Testimony—Prosecutorial Misconduct.

Defendant appealed his judgments of conviction entered on jury verdicts finding him guilty of three counts of sexual exploitation of a child. The judgments were affirmed.

After executing a search warrant for defendant’s home, the police seized numerous items, including a laptop computer and an external hard drive. On the laptop and hard drive, the police found a photograph and two videos depicting child pornography.

Defendant contended that the trial court erroneously admitted the photo and videos over his objections based on foundation, authentication, and C.R.E. 403. Defendant was correct that the government was required to prove that the images were of actual children; however, there was sufficient evidence presented on which the jury could have found that the children depicted in the images were real. To establish a proper foundation and authentication, the prosecution only needed to prove a chain of evidence and not who was portrayed in the photograph and videos. The images were direct proof of an essential element of the charged crimes, and the fact that the nature of the charges may have been prejudicial to defendant does not justify exclusion of such evidence. Accordingly, it was not error to admit the images into evidence.

Defendant also contended that there was insufficient evidence presented that the images depicted real children and, consequently, there was insufficient evidence to sustain his convictions. However, the images appeared to depict real persons. A doctor stated that he believed the images were children based on certain physical characteristics, and a detective stated that there was no evidence that the images were fake or of virtual children. Under these circumstances, the evidence was sufficient to permit the jury, as the finder of fact, to determine that the prosecution had met its burden of proving that the individuals depicted were real children.

Defendant further contended that the trial court’s admission of a detective’s expert testimony warranted reversal. However, the court’s qualification of the detective as an expert was not manifestly unreasonable, arbitrary, or unfair in light of the detective’s experience. Moreover, any error in qualifying the detective as an expert was rendered harmless when the doctor testified in detail as to her opinion that the individuals in the images were under the age of 18.

Finally, defendant contended that reversal was warranted because of prosecutorial misconduct in closing argument. The prosecution’s position was a reasonable inference drawn from the images and testimony in the case and did not misstate the prosecution’s burden of proof. Therefore, reversal was not warranted.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on August 4, 2011, can be found here.

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Tenth Circuit: In Prozac Wrongful Death Case, Expert Witness Properly Excluded but the Request for Additional Time to Name a New Expert Should Have Been Granted

August 5, 2011 by Leave a Comment

The Tenth Circuit Court of Appeals issued its opinion in Rimbert v. Eli Lilly and Co. on Wednesday, August 3, 2011.

The Tenth Circuit affirmed in part and reversed in part the district court’s decision. Petitioner’s father, shorty after beginning to take Prozac, killed his wife and himself. Petitioner brought a wrongful death action against Respondent, the manufacturer of Prozac. Respondent moved for summary judgment to exclude the testimony of Petitioner’s sole expert witness on the question of causation; the motion was denied by the district court judge who was initially assigned the case. The case was thereafter reassigned, and Respondent moved for reconsideration of the prior rulings and the second district court judge granted the motion to exclude the expert witness. Petitioner then immediately moved for a new scheduling order allowing him time to name a new expert, which the district court denied. The district court then entered summary judgment for Respondent, “concluding that, without the expert’s testimony, [Petitioner] could not put forth any evidence Prozac caused [his] father to commit the murder-suicide.” Petitioner appeals the order excluding the testimony of his expert witness and he also appeals the order denying additional time to name a new expert and the resulting entry of summary judgment for Respondent.

The Court found no abuse of discretion in excluding the expert witness. “[I]t was not ‘manifestly unreasonable’ for the district court to, upon being assigned a new case, independently assure itself of the expert’s reliability and to fulfill its gatekeeper function.” Additionally, Respondent was free to request reconsideration of the initial judge’s rulings. However, the Court agreed with Petitioner regarding his request for additional time to name a new expert. At the time of the request, there was no longer any impending trial date or pretrial schedule remaining that would have been disrupted; accordingly, Respondent would not have been prejudiced by a new scheduling order “in the sense of being unable to mount a defense against the new expert’s testimony,” and extra expense alone is not the type of prejudice contemplated when denying such an order.

“[T]he district court was not faced with a case that had proceeded normally, and the unique circumstances presented called for flexibility in the discovery schedule. In light of the procedural oddities of the case . . . and the district court’s unorthodox consideration of the motion for a new scheduling order as if it had been made at a prior date when the case was in a vastly different posture, [the Tenth Circuit was] left with the ‘definite and firm conviction’ that disallowing [Petitioner]’s request for additional time to name a substitute expert was an abuse of discretion.”

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