October 18, 2017

Colorado Court of Appeals: Dying Declaration Admissible Regardless of Whether Testimonial or Non-Testimonial

The Colorado Court of Appeals issued its opinion in People v. Cockrell on Thursday, October 5, 2017.

Dying Declarations Statute—Evidence—Confrontation Clause.

The victim was shot 11 times and was found by bystanders, who asked him questions. The victim answered their questions but did not provide the shooter’s name. On the way to the hospital, the victim identified Cockrell as the shooter to an officer who rode in the ambulance. The victim died soon thereafter during surgery. No DNA, fingerprint, or other forensic evidence tied Cockrell to the victim’s murder. The primary evidence against him was the victim’s dying declaration identifying Cockrell as the shooter and a bystander’s statement that he saw a car leaving the area around the same time the victim was found that matched the description of the car Cockrell drove. The trial court denied Cockrell’s motion to suppress the dying declaration and to find C.R.S. § 13-25-119 unconstitutional. Cockrell was found guilty of first degree murder and two crime of violence sentence enhancers.

On appeal, Cockrell contended that C.R.S. § 13-25-119, the dying declaration statute, is unconstitutional on its face because it violates the Confrontation Clause. Dying declarations are an exception to the hearsay rule because of their guarantee of trustworthiness, and precluding their admission would in many cases result in a failure of justice. The court of appeals held that dying declarations are an exception to the Confrontation Clause and the dying declaration statute is constitutional.

Cockrell also contended that the victim’s statement did not satisfy the statutory requirements for admission of dying declarations. The first statutory requirement was satisfied because the parties agreed that the victim believed he was going to die; he had 11 gunshot wounds and death was imminent, and he made statements indicating he feared he was going to die. As to the other three requirements, Cockrell argued that (1) the statements were not voluntary; (2) the statements were made in response to questions calculated to lead the deceased to make the particular statement; and (3) the victim was not of sound mind when he made the statements. However, the record supports the trial court’s finding that (1) the victim’s statements were voluntarily made; (2) the questions asked of the victim were designed to gather facts with no apparent pretense; and (3) although the victim was in a great deal of pain and had trouble breathing, he was conscious and alert and answered questions appropriately, and thus was of sound mind when he identified Cockrell as his shooter.

Lastly, Cockrell contended that there was insufficient evidence to support his first degree murder conviction. Based on the evidence presented, it was rational for the jury to have found Cockrell guilty as charged.

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Balancing Test Enunciated when One Party Calls Other Party’s “May Call” Witness

The Colorado Court of Appeals issued its opinion in Sovde v. Scott, D.O. on Thursday, June 29, 2017.

Medical MalpracticeMisdiagnosisExpert WitnessesTimely EndorsementHearsay.

Sovde, a child, sued doctors Scott and Sarka by and through his mother. The lawsuit claimed that defendants had negligently misdiagnosed lesions on the child’s head as something benign instead of manifestations of the herpes simplex virus, and if defendants had timely and properly diagnosed the lesions as products of less harmful skin, eyes, and mucous membrane disease, they could have treated the child with antibiotics, which could have prevented the onset of the more harmful central nervous system disease. The jury found in defendants’ favor.

On appeal, plaintiff argued that the trial court erred when it denied his requests to use the testimony of defendants’ previously endorsed expert witnesses whom defendants had withdrawn. The trial court did not abuse its discretion when it permitted defendants to withdraw Dr. Reiley and Dr. Molteni as expert witnesses and not make them available at trial because they had previously been listed as “may call,” not “will call,” witnesses. Further, because plaintiff did not timely endorse these witnesses or timely inform the court and defendants that he would use their depositions at trial, and the record supports the trial court’s implicit decision that the testimony and depositions would have been cumulative or would have had little probative value, the trial court did not err in denying his requests. For the same reasons, the trial court properly rejected plaintiff’s motion for a new trial.

Plaintiff also argued that the trial court erred in excluding father’s telephone conversation with a licensed medical assistant in a pediatrician’s office, contending that the testimony was admissible under CRE 803(4) as statements made for purposes of medical diagnosis or treatment. Although some of father’s statements fell within the ambit of CRE 803(4) because he provided them to the medical assistant to obtain a diagnosis of and treatment for the child’s condition, plaintiff failed to show that excluding this testimony substantially influenced the basic fairness of the trial. Further, the trial court did not abuse its discretion when it denied plaintiff’s motion for a new trial on these grounds.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Nontestimonial Hearsay Statements do Not Implicate Defendant’s Right to Confrontation

The Colorado Supreme Court issued its opinion in Nicholls v. People on Monday, June 19, 2017.

Criminal Trials—Right of Accused to Confront Witnesses—Exceptions to Hearsay Rule—Statements Against Interest.

In light of the U.S. Supreme Court’s holding in Davis v. Washington, 547 U.S. 813 (2006), the Colorado Supreme Court held that nontestimonial hearsay statements do not implicate a defendant’s state constitutional right to confrontation, overruling Compan v. People, 121 P.3d 876 (Colo. 2005), which held otherwise. Because the hearsay statements at issue in this case were nontestimonial, they did not implicate Colorado’s Confrontation Clause, and the court of appeals did not err in concluding that defendant’s confrontation right was not violated. The court further held that the third requirement for the admission of inculpatory hearsay statements against interest, announced in People v. Newton, 966 P.2d 563, 576 (Colo. 1998) (requiring corroborating circumstances to demonstrate the statement’s trustworthiness), is not constitutionally required for nontestimonial statements against interest. To admit a third party’s nontestimonial statements against interest under the version of CRE 804(b)(3) that existed at the time of defendant’s 2008 trial, only two conditions needed to be satisfied: (1) the witness must have been unavailable, and (2) the statement must have tended to subject the declarant to criminal liability. The court concluded that the third party’s nontestimonial statements against interest satisfied these two requirements, and the trial court did not abuse its discretion in admitting these statements as a statement against interest under CRE 804(b)(3), as that rule existed at the time of defendant’s trial. Finally, the court held that the trial court did not abuse its discretion in admitting testimony about defendant’s response to the death of her second child because the testimony was relevant and not unduly prejudicial; nor did the trial court plainly err in admitting testimony about the cause of the second child’s death because the brief, isolated statements did not so undermine the trial’s fairness as to cast serious doubt on the reliability of defendant’s conviction. Accordingly, the court of appeals’ judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Tenth Circuit: District Court Did Not Err in Finding Assault Occurred Despite Poor Quality Evidence

The Tenth Circuit Court of Appeals issued its opinion in United States v. Henry on Friday, February 3, 2017. Panel rehearing was granted for the sole purpose of adding a footnote; that opinion is available here.

Tremale Henry finished a prison sentence for violating federal drug laws and was under supervised release for five years thereafter. During his five year supervised release, Mr. Henry was found by the district court to be responsible for two separate assaults with a dangerous weapon. The district court sentenced Mr. Henry to a 24-month prison term followed by six further years of supervised release. Mr. Henry argues that the district court impermissibly relied on hearsay when reaching its judgment.

The Tenth Circuit first addressed Mr. Henry’s first assault charge. In finding that Mr. Henry committed this assault, the district court relied on statements from a witness, Candace Ramsey. Ms. Ramsey testified that she saw Mr. Henry lunge at his victim with a small object, but that she could not see exactly what that object was. A probation officer then testified that Ms. Ramsey told him before the hearing that she saw Mr. Henry use a knife. The district court apparently credited this hearsay. Additionally, the district court relied on a surveillance video that showed Mr. Henry make rapid movements towards the victim. Although the video quality was poor and a knife could not clearly visible, the district court found that the reaction of the victim was consistent with a violent assault with a dangerous weapon. The district court found that all of these facts taken together established that Mr. Henry committed the first assault with a dangerous weapon.

The Tenth Circuit held that the district court did not err in its finding regarding the first assault. The Tenth Circuit stated that the usual rules of evidence do not apply in revocation hearings, and that the Supreme Court has allowed hearsay into supervised release proceedings. The Tenth Circuit went on to state that Fed. R. Crim. P. 32.1(b)(2)(C) grants a defendant in a revocation hearing the opportunity to question any adverse witness. Additionally, in United States v. Jones, the Tenth Circuit held that the application of Rule 32.1(b)(2)(C) requires a district court to conduct a balancing test to weigh “the defendant’s interests in confronting a witness against the government’s interest in foregoing the witness’s appearance.”

The Tenth Circuit held that neither Rule 32.1(b)(2)(C) nor Jones was applicable with regard to the first instance of the assault charge because the witness was available for cross-examination. Ms. Ramsey did appear at the hearing and Mr. Henry had the chance to question her about her hearsay statement. Additionally, Mr. Henry did not provide evidence to establish that his minimal due process rights were violated.

The Tenth Circuit next addressed the second assault charge, which consisted of the stabbing of the victim. The district court relied on out-of-court statements that the victim and the victim’s girlfriend made to a police detective. That detective then relayed the statements to Mr. Henry’s probation officer. Mr. Henry’s probation officer presented these statements at the revocation hearing, but neither the victim, his girlfriend, nor the detective was subject to cross-examination. Therefore, the Tenth Circuit held that Rule 32.1(b)(2)(C) and Jones did apply to this assault charge, and that the district court failed to conduct the balancing test Jones required.

The Tenth Circuit held that the district courts failure to apply the relevant tests was not a harmless error. The Tenth Circuit came to this conclusion because it determined that the district court considered both assault charges when it fashioned its sentence. Therefore, the error was not harmless and the Tenth Circuit remanded the case back to the district court for resentencing.

Colorado Court of Appeals: Loss Prevention Director’s Spreadsheet was Admissible Under Business Records Exception

The Colorado Court of Appeals issued its opinion in People v. Flores-Lozano on Thursday, October 20, 2016.

Maria Guadalupe Flores-Lozano was a manager at a fast-food chain. The fast-food chain’s loss prevention director noticed that Flores-Lozano was giving a high number of discounts to customers and suspected that she was pocketing the difference between the amount the customer paid and the discount. He prepared a spreadsheet showing 4400 transactions in which Flores-Lozano gave discounts on cash transactions, calculating the total amount of the suspected theft at $23,320.01. The loss prevention director confronted Flores-Lozano with the spreadsheet and still photos from the chain’s surveillance video, and she admitted she had been stealing from the company. The loss prevention director contacted the police, and Flores-Lozano was charged with theft of over $20,000.

The sole issue at trial was the amount of the theft. The People argued Flores-Lozano should be charged with the total amount calculated by the loss prevention director, but Flores-Lozano countered she should only be charged with the specific instances in which she had admitted guilt, which amounted to less than $500. The trial court disagreed with both parties and ultimately found Flores-Lozano guilty of the lesser included offense of theft of more than $1,000 but less than $20,000.

On appeal, Flores-Lozano contended that the spreadsheet prepared by the loss prevention director constituted impermissible hearsay. The Colorado Court of Appeals concluded that it did contain hearsay, but was admissible under the business records exception to the hearsay rule, CRE 803(6). The court analyzed the five factors of CRE 803(6) and found that the spreadsheet satisfied all the factors. First, the data contained in the spreadsheet was automatically generated at the point of sale. Second, the spreadsheet was prepared by the loss prevention director, a person who indisputably had knowledge of the matters contained in the spreadsheet. Next, the third, fourth, and fifth factors were satisfied by the loss prevention director’s testimony that he regularly conducted investigations of theft within the restaurant chain and regularly prepared and kept spreadsheets of the records in the course of his investigations. The court found that the spreadsheet was properly admitted. Although the loss prevention director testified that he prepared the spreadsheet for litigation, the court was entitled to disregard his testimony.

The judgment was affirmed. Judge Bernard wrote a special concurrence; he would have found that all of the data contained in the spreadsheet was made in the regular course of business.

Tenth Circuit: Defendant Should Have Been Allowed to Allocute Before Sentencing But Error Not Plain

The Tenth Circuit Court of Appeals issued its opinion in United States v. Bustamante-Conchas on Monday, August 8, 2016.

Miguel Bustamenta-Conchas founded a heroin trafficking company with his friend, Baltazar Granados. Bustamenta-Conchas and Granados distributed heroin throughout the Albuquerque area and cooked heroin at the home Granados shared with his wife, Olga Fabiola Rosales-Acosta. The pair had a third co-conspirator, “Edgar,” who eventually left the conspiracy. Bustamenta-Conchas gave Granados a Glock for protection against Edgar. Bustamenta-Conchas controlled several homes in the Albuquerque area, one of which was a rental that he allowed two other co-conspirators to use to store cash and heroin. When the group was finally arrested in 2013, police found over 100 grams of heroin and $90,000 cash at the rented home. Another 100 grams of heroin was found at a nearby home owned by Bustamenta-Conchas, 9 kilograms of heroin was found at Rosales-Acosta’s home, and 1.17 kilograms and a Glock pistol were found at Granados’s home.

After a jury trial, Bustamenta-Conchas was found guilty of conspiracy to distribute and intent to distribute one kilogram or more of heroin. Prior to sentencing, his counsel presented mitigation evidence regarding Bustamenta-Conchas’s unstable childhood, abuse by uncles, and the death of his first child. At sentencing, Bustamenta-Conchas’s counsel challenged several of the factual findings in the presentence report, including the drug quantity report, which included all of the drugs and cash found at all of the properties. His attorney argued for the 10-year mandatory minimum sentence. The district court neglected to allow Bustamenta-Conchas to make a statement as required by F.R.C.P. 32(i)(4)(A)(ii). The district court accepted the findings in the presentence report but declined to accept the Guidelines range of 292-365 months, instead imposing a 240 month sentence and a $100,000 fine based on the mitigating factors presented by counsel.

On appeal, Bustamenta-Conchas argued the district court erred by attributing all of the drugs to him for purposes of his Guidelines calculation, enhancing his sentence due to his co-conspirator’s possession of a firearm, and failing to allow him to allocute before sentencing. The Tenth Circuit addressed the quantity argument first. The Circuit found that the district court could take into account “relevant conduct” of the defendant, including any acts related to the conspiracy. Bustamenta-Conchas argued that the district court failed to make a particularized finding as to the scope of the criminal activity he agreed to undertake. The Tenth Circuit found that he waived this argument by failing to preserve it in district court and failing to argue plain error on appeal.

The Tenth Circuit next turned to the dangerous weapon enhancement. Bustamenta-Conchas argued the district court relied on a clearly erroneous fact when determining that Granados possessed the firearm in connection with a drug conspiracy. Ms. Rosales-Acosta revealed in her interview with an investigator that Bustamenta-Conchas had given the weapon to Granados for protection against Edgar. Although she did not testify about the firearm, the investigator testified as to these facts. The Tenth Circuit held that the district court did not err in admitting this hearsay testimony. The Tenth Circuit found sufficient indicia of reliability as to the statements.

Finally, the Tenth Circuit addressed Bustamenta-Conchas’s claim that the district court reversibly erred by failing to allow him to allocute prior to sentencing. The Tenth Circuit evaluated the claim under plain error because he failed to object at sentencing. Both parties agreed that Bustamenta-Conchas met the first three prongs of plain error review, but the government contended that the error did not fundamentally undermine the fairness of the proceedings. The majority panel determined that because Bustamenta-Conchas’s counsel argued for a lesser sentence, cross-examined sentencing witnesses, and presented mitigating evidence, and because the district court ultimately imposed a below-Guidelines sentence, there was no plain error.

The Tenth Circuit affirmed the sentence. Judge Lucero wrote a thoughtful dissent; he would have held that failure to allow allocution is an error that fundamentally undermines the fairness of the criminal proceeding and therefore the sentence should have been reversed.

Colorado Court of Appeals: Defendant’s Request for Jury Instruction on Lesser Nonincluded Offense Does Not Concede Guilt

The Colorado Court of Appeals issued its opinion in People v. Geisick on Thursday, July 28, 2016.

Benjamin Geisick got into an argument with his girlfriend at a motel, and the motel manager called the police. The motel manager pointed Geisick out to an officer, who called to Geisick and tried to talk to him. Geisick attempted to flee, and the officer and Geisick engaged in a struggle. Geisick was ultimately arrested and charged with second degree assault on a peace officer and attempting to disarm a peace officer. He was also charged with possession of drug paraphernalia based on a methamphetamine pipe officers found in his pocket.

At trial, the officer and Geisick offered very different accounts of the altercation. At the close of evidence, Geisick asked the trial court to instruct the jury on two lesser non-included offenses, resisting arrest and obstructing a peace officer. The jury found Geisick not guilty of assault and attempting to disarm but guilty of resisting arrest, obstructing a peace officer, and possession of drug paraphernalia. He was convicted and sentenced, and he appealed.

On appeal, Geisick first argued that the trial court erred in denying his challenge for cause of one potential juror, forcing him to use a peremptory challenge. The Colorado Court of Appeals, following the Colorado Supreme Court’s opinion in People v. Novotny, determined that Geisick failed to show prejudice since the juror was dismissed and did not contribute to the guilty verdict.

Next, Geisick argued that the trial court erred in admitting hearsay evidence about the physical altercation with the officer. An officer who interviewed the officer involved in the altercation testified as to what he heard in the interview. The court of appeals concluded that any error in admitting the testimony was harmless. At trial, Geisick objected to the interviewing officer’s testimony, and the trial court agreed that the testimony was potentially impermissible hearsay because the officer was testifying as to the other officer’s truthfulness. However, the court allowed the testimony under the excited utterance and prior consistent statement exceptions to the hearsay rule. The court of appeals expressed doubt that the entirety of the altercating officer’s interview could be admitted as an excited utterance, and, because the altercating officer was not cross-examined about the interview, it could not be admitted as a prior inconsistent statement. Nevertheless, the court found that any error was harmless because the altercating officer described the incident in detail, the interviewing officer was not an eyewitness, the jury was aware that the interviewing officer was only testifying as to what happened in the interview, and it was unlikely that the interviewing officer’s testimony rendered the altercating officer’s account of the incident more credible since the jury acquitted Geisick on the assault and attempting to disarm charges.

Geisick next contended that the evidence was insufficient to support the convictions on the lesser non-included offenses. The court of appeals found that by proffering the lesser charges, he impliedly assented to the sufficiency of the evidence to support those charges. The court disagreed with a prior panel ruling on the same issue, which decided that the defendant had invited any error. The court of appeals found that by offering the instructions on the lesser non-included offenses, the defendant did not admit guilt on the charges, so invited error was inappropriate. However, because the defendant had to represent to the court that the non-included charges could be applicable, he affirmatively waived any argument about the sufficiency of the evidence.

The court of appeals found no error to support Geisick’s cumulative error arguments, and affirmed his convictions and sentence.

Colorado Court of Appeals: Note Written by Murder Victim was Testimonial Hearsay

The Colorado Court of Appeals issued its opinion in People v. McFee on Thursday, June 30, 2016.

L.E. was an in-house manager of a residential facility for people with HIV and AIDS. One night, a resident found her lying in a pool of blood in the hallway. By the time police arrived, L.E. was dead. A few months later, police arrested Jonathan McFee, L.E.’s ex-boyfriend, for the murder. At trial, numerous witnesses testified about hearing McFee threaten to kill L.E., and the prosecution introduced an audio recording of a statement muttered by McFee during a break in interviewing that sounded like “I did it. That bitch.” A handwritten note from L.E. was admitted into evidence, which expressed that McFee had threatened to kill her and it was only a matter of time until he succeeded. The jury convicted McFee of first degree murder, and he was sentenced to life in prison without the possibility of parole.

McFee appealed, arguing that testimony of L.E.’s mother, daughter, and cousin about McFee’s intention to kill L.E. were hearsay and were improperly admitted. McFee also argued that the handwritten note was testimonial hearsay that was improperly admitted. The district court determined that the statements of the mother, daughter, and cousin were admissible under CRE 807 (residual exception), and arguably under CRE 803(3) (state of mind exception). The court of appeals agreed with the district court that the statements were properly admitted under CRE 807. The court of appeals found that L.E.’s statements were trustworthy because they were made spontaneously to close family members, they were not self-serving, and L.E. had no motive to lie about McFee’s threats. Additionally, all of the witnesses testified that L.E. seemed afraid when describing the threats. Further, the statements tended to show that L.E.’s and McFee’s relationship was volatile and he had a motive to kill. The court found that the statements were properly admitted.

Next, McFee argued that L.E.’s note was testimonial hearsay and should have been excluded because it violated his Sixth Amendment Confrontation Clause rights. The court of appeals agreed, but found that any error in admitting the note was harmless beyond a reasonable doubt. The court of appeals found that the note was created out of court to substitute for testimony in the event of L.E.’s death and therefore was “testimonial.” And because L.E. was unavailable at trial and McFee had not had prior opportunity for cross-examination, admission of the note violated McFee’s Confrontation Clause rights. However, the court found that any error in admitting the note was harmless beyond a reasonable doubt. Several witnesses testified as to threats McFee had made to kill L.E., McFee’s DNA was on the murder weapon, he had a key to the facility where L.E. lived on his key ring at the time of his arrest, he failed to contact L.E.’s daughter after the murder despite his close relationship with her, and he may have said “I did it” on the audio recording. Given the plentiful evidence of McFee’s guilt, the court found that admission of the note was harmless beyond a reasonable doubt.

The court of appeals affirmed McFee’s conviction.

Colorado Court of Appeals: Restitution Applicable When Defendant’s Conduct Caused Damage Regardless of Conviction

The Colorado Court of Appeals issued its opinion in People v. Ortiz on Thursday, April 27, 2016.

Vehicular Eluding—Victim—Restitution—Evidence—Hearsay.

After a deputy sheriff stopped defendant’s vehicle to investigate a report of shots fired by a person driving a vehicle like defendant’s, defendant sped away. The officer gave chase, bumping into defendant’s car several times before defendant stopped. The People charged defendant with a number of crimes. Defendant and the People reached a plea agreement under which defendant agreed to plead guilty to one count of aggravated driving after revocation prohibited (reckless driving) and one count of violation of a protection order and the People agreed to drop the other charges. The district court accepted the agreement and sentenced defendant. On request of the People, the court ordered restitution for the damages to the patrol car.

On appeal, defendant contended that because he did not plead guilty to an offense that specifically identified the state patrol as a victim, the state patrol was not a victim within the meaning of the restitution statutes. However, the state patrol was a victim of vehicular eluding, which was included among the charges against defendant. Therefore, it was a victim for purposes of the restitution statutes, even though defendant pleaded guilty to other charges. Accordingly, the district court did not err in allowing the state patrol to seek restitution.

Defendant also contended that the evidence was insufficient to support the restitution award because it was entirely hearsay and basing the award on hearsay violated his right to due process. The prosecution is not limited by the rules of evidence in proving an amount of restitution, and an award of restitution may be based solely on a victim’s impact statement, which is hearsay. Considered as a whole, the evidence sufficiently showed the cost of the damage and that defendant caused it. In addition, defendant’s counsel conducted thorough cross-examination about the damage to the patrol car and defendant chose not to rebut the evidence; therefore, there is no due process violation.

The order was affirmed.

Summary provided courtesy of The Colorado Lawyer.

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

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

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

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

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

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

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

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

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

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

The Tenth Circuit affirmed the district court.

Colorado Court of Appeals: No Error in Admission of Phone Call to Show Context for Defendant’s Statements

The Colorado Court of Appeals issued its opinion in People v. Smalley on Thursday, October 8, 2015.

Hearsay—Admissions—Prosecutorial Misconduct—Jury—Recorded Statements.

Smalley was convicted of possession of a weapon by a previous offender, a felony. On appeal, he contended that the trial court erred in admitting the recording of his phone call from jail to a woman named Jennifer Dressler because Dressler’s statements were hearsay. A defendant’s own out-of-court statements are not hearsay when offered against the defendant. The statements made by Dressler during the conversation were not hearsay because they were offered to provide context for defendant’s statements and not for the truth of the matter asserted.

Smalley next contended that the trial court erred in permitting the prosecutor to use Dressler’s statements for the truth of the matter asserted in closing arguments. Any improper argument, however, did not rise to the level of plain error.

Smalley further contended that the trial court erred by allowing the jury unfettered access during deliberations to recordings of the Dressler call and two other phone calls to which Smalley was a party. The court properly exercised its overall discretion in giving the jury access to the recorded statements during its deliberations, and the court properly gave the jury a limiting instruction.

Finally, Smalley contended, and the Court of Appeals agreed, that the trial court erred in not giving him an opportunity to speak on his own behalf at his sentencing hearing. The Court applied the plain error standard to determine whether the error warranted reversal. Here, the record shows that the trial court did not directly address Smalley or personally invite him to speak. The error was obvious and substantial, and it cast serious doubt on the reliability of the sentence. Accordingly, the sentence was vacated and the case was remanded for resentencing to allow Smalley an opportunity to speak on his own behalf.

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

Tenth Circuit: No Error in Admission of Anonymous 911 Call for Purpose of Explaining Investigation

The Tenth Circuit Court of Appeals issued its opinion in United States v. Edwards on Tuesday, March 24, 2015.

After an anonymous 911 call alerted McAlester, Oklahoma police about two men transporting drugs, Maurice Edwards and Tony Washington were arrested. Both were charged with aiding and abetting each other to possess controlled substances with intent to distribute. At trial, Edwards objected to admitting the phone call into evidence, but the trial court ruled that the call was admitted for the limited purpose of explaining why an investigation was undertaken and therefore was not hearsay. The jury found defendant guilty beyond a reasonable doubt of either possession with intent to distribute or aiding and abetting possession with intent of marijuana and 5 grams or more of methamphetamine.

Edwards raised three arguments on appeal: (1) the phone call was testimonial hearsay and its admission violated the Confrontation Clause; (2) his indictment charged him only as an aider and abettor, not a principal, so the trial evidence and jury instructions constructively amended his indictment; and (3) in order for him to have been convicted as an aider and abetter, the jury was required to find beyond a reasonable doubt that someone else was the principal.

The Tenth Circuit first addressed the anonymous 911 call. Even assuming the call was inadmissible hearsay, the Tenth Circuit found any error was harmless because other evidence of Edwards’ guilt was overwhelming, the trial court issued a limiting instruction, and the Tenth Circuit found Edwards’ proffered defense “utterly implausible.”

Next, the Tenth Circuit evaluated Edwards’ constructive amendment argument for plain error since it was not properly preserved below. The Tenth Circuit found that Edwards’ argument failed at the first prong of the plain error test because there was no error. His indictment was sufficient to charge him both as a principal and an aider and abettor. The Tenth Circuit noted the indictment allowed Edwards to assert a double jeopardy defense.

The Tenth Circuit next evaluated Edwards’ argument that the aiding and abetting instruction omitted the essential element that someone else committed the crime. Again, the Tenth Circuit’s review was for plain error because the argument was not preserved below. The Tenth Circuit first noted there was no requirement for the district court to follow pattern jury instructions, and found that if there was any error in the proffered instructions, it was not plain.

The Tenth Circuit affirmed Edwards’ conviction.