May 26, 2013

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Colorado Court of Appeals: No Hearsay Exception Applied to Allow Introduction of Defendant’s Self-Serving Out-of-Court Statements

May 14, 2013 by Leave a Comment

The Colorado Court of Appeals issued People v. Zubiate on Thursday, May 9, 2013.

Driving After Revocation Prohibited—Driving While Ability Impaired—Driving Under Restraint—Hearsay—Merger—Lesser Included Offense.

Defendant appealed her convictions entered following a jury trial for aggravated driving after revocation prohibited (aggravated DARP) and driving while ability impaired (DWAI). She also appealed her driving under restraint (DUR) conviction entered following her guilty plea to that offense, and the sentence imposed. The convictions were affirmed.

Defendant contended that the trial court erred in excluding an out-of-court statement concerning her fear of needles and, consequently, deprived her of her constitutional right to present evidence in her own defense. Specifically, defendant argued that the court erred in excluding her statement to Officer Rayside concerning her fear of needles because it was (1) offered for a non-hearsay purpose, (2) a statement against interest, and (3) a statement concerning her state of mind. Here, the statement was relevant only if it was offered for the truth of the matter asserted—namely, that defendant feared needles. Accordingly, it was hearsay. Because defendant’s statement was self-serving and the prosecution did not introduce evidence that defendant refused the test, none of the hearsay exceptions applied.

Defendant also contended that her DARP and DUR convictions should merge because DUR is a lesser included offense of DARP. The offenses do not merge, however, because proving the DARP elements does not necessarily establish DUR. DUR applies to offenses committed only on public ways. DARP, in contrast, does not require that the driver operate the vehicle on a highway. Accordingly, DARP is not limited to the highway and applies to private ways, as well. Because DUR requires proof of an additional fact that DARP does not—namely that a motor vehicle was driven on a highway—DUR is not a lesser included offense of DARP. Furthermore, because one could operate a vehicle without necessarily driving it, the offenses do not merge under the strict elements test. Therefore, DUR is not a lesser included offense of DARP. Accordingly, defendant’s convictions and sentences for both offenses do not merge.

Summary and full case available here.

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Colorado Court of Appeals: Evidence of SANE Examination and Examiner’s Report Admissible in Sexual Assault Case

May 1, 2013 by Leave a Comment

The Colorado Court of Appeals issued its opinion in People v. Tyme on Thursday, April 25, 2013.

Sexual Assault—Hearsay—Sexual Assault Nurse Examiner—Medical Diagnosis or Treatment.

Defendant Justyn E. Tyme appealed the trial court’s judgment of conviction entered on jury verdicts finding him guilty of sexual assault, third-degree assault, and false imprisonment. The judgment was affirmed.

This case stems from Tyme’s sexual assault of the victim, G.A. Five days after the assault and at the request of law enforcement, G.A. submitted to a Sexual Assault Nurse Examiner (SANE) examination that was performed by Sue Goebel. At trial, Goebel testified, as an expert witness, about information she had learned from G.A. during the exam. Both Goebel’s testimony and her report were allowed as evidence at trial.

On appeal, Tyme contended that the trial court abused its discretion in concluding that both the SANE testimony and her report were admissible under the medical diagnosis or treatment hearsay exception because the purpose of the SANE examination was to collect evidence, not to treat or diagnose the victim. Generally, statements made for purposes of medical diagnosis or treatment, including a SANE exam, are admissible if (1) the statement is reasonably pertinent to treatment or diagnosis; and (2) the content of the statement is such that it is reasonably relied on by a physician in treatment or diagnosis. Here, Goebel testified that she relied on the medical history to guide her examination and used it “to diagnose and treat,” thereby satisfying the first prong of the reliability test. She also testified that SANEs normally rely on similar histories to “guide the[ir] diagnosis and treatment,” thereby demonstrating the reasonableness of her reliance on G.A.’s statements in satisfaction of the second prong of the reliability test. Accordingly, the trial court did not abuse its discretion in admitting Goebel’s testimony or her report.

Summary and full case available here.

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Colorado Court of Appeals: Defendant Opened the Door to Hearsay Testimony and Therefore Waived His Confrontation Right

November 12, 2012 by Leave a Comment

The Colorado Court of Appeals issued its opinion in People v. Rogers on Thursday, November 8, 2012.

Hearsay—Constitutional Right of Confrontation—Waiver.

Defendant appealed his jury conviction for possession of a weapon by a prior offender. The judgment was affirmed.

A man picked up defendant at a local motel. A police officer pulled over the driver for failing to use his signal device when making a turn. The officers on scene discovered defendant had three active warrants and placed him under arrest. Relying on the driver’s statements that defendant threw a gun in the back seat, the People charged defendant with possession of a weapon by a prior offender.

On appeal, defendant contended that his conviction should be reversed because the trial court’s admission of testimonial hearsay statements by the driver, who did not appear at trial, violated his constitutional right of confrontation. Defendant’s counsel introduced the driver’s hearsay statement during the cross-examination of the arresting officer to elicit evidence that the driver knew of the gun and had tried to conceal it. This opened the door to the prosecution’s redirect examination and the admission of statements implicating defendant. Therefore, because defendant opened the door by questioning the officer about the information he received from the driver, defendant waived his right to confrontation.

Summary and full case available here.

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Colorado Court of Appeals: Multiple Instances of Hearsay Permissible Under Constitution and Evidence Rules

October 29, 2012 by Leave a Comment

The Colorado Court of Appeals issued its opinion in People v. Phillips on Thursday, October 25, 2012.

First-Degree Murder—Child Abuse Resulting in Death—Hearsay—Federal Confrontation Clause—State Confrontation Clause—Batson Challenge—Jury Selection—Consecutive Sentences—Evidence.

Defendant appealed his convictions for first-degree murder, child abuse resulting in death, and tampering with physical evidence. The convictions were affirmed, the sentences were reversed in part, and the case was remanded.

Defendant’s convictions stemmed from evidence that defendant starved his stepson, C.G., to death in a linen closet in his apartment. Defendant argued that the trial court violated his federal and state Confrontation Clause rights by permitting his 5-year-old son, D.P., to testify via closed circuit television (CCTV). D.P.’s therapist testified that D.P. would be traumatized psychologically if he were made to testify in front of defendant. Further, the court allowed defense counsel to cross-examine D.P. fully, and defendant had two-way communication with counsel during direct and cross-examination. Therefore, the court did not violate defendant’s federal and state Confrontation Clause rights by allowing D.P. to testify via CCTV.

Defendant also argued that the trial court violated his federal and state Confrontation Clause rights, and state hearsay rules, by admitting various out-of-court statements made by defendant’s girlfriend, Sarah Berry; C.G.; and D.P. Statements that Berry made in a voicemail left on defendant’s cell phone, which relayed what C.G. and D.P. said, did not violate state hearsay rules, because C.G.’s statement to D.P. was a command, offered as circumstantial evidence that C.G. was extremely thirsty and, therefore, not covered by the hearsay rule. D.P.’s statement, relaying C.G.’s statement to Berry, was admissible for the non-hearsay purpose of showing its effect on Berry as the listener. Finally, Berry’s statement to defendant, in which she relayed D.P.’s (and thus C.G.’s) statement, was admissible as a non-hearsay statement by a co-conspirator under CRE 801(d)(2)(E). Therefore, the court did not abuse its discretion in admitting the voicemail into evidence.

Before his death, C.G. made various statements to the public school employees, to the police officer during the welfare check, and to the caseworker. The questioning of C.G., however, was for the purpose of determining his health and welfare, and his statements related to his then existing physical condition, which fell within a hearsay exception and were admissible. Additionally, some of C.G.’s statements to the caseworker were for a non-hearsay purpose of showing that C.G. had been coached to change his story.

Defendant’s rights were not violated in admitting the statements that D.P. made to a mental health therapist during therapy sessions after C.G.’s death. D.P. testified via CCTV and defense counsel had the opportunity to cross-examine him on any statements he had made to the therapist.

Any statements erroneously admitted were harmless beyond a reasonable doubt. There was no reasonable possibility that the admission of these statements affected the guilty verdict because the other properly admissible evidence was overwhelming that defendant knowingly starved C.G. to death in the closet.

Defendant also contended that the trial court erred in denying his Batson challenge to the prosecutor’s allegedly discriminatory use of peremptory challenges [Batson v. Kentucky, 476 U.S. 79, 89 (1986)]. Although defendant made out a prima facie case because no African American jurors remained on the panel after the prosecutor used his peremptory challenges to dismiss them, the prosecution provided permissible race-neutral explanations for his challenges, and defendant was given an opportunity to reply. Therefore, the trial court did not abuse its discretion in denying defendant’s Batson challenge.

Defendant further argued that the trial court erred in imposing consecutive sentences for first-degree murder and child abuse resulting in death. Because the evidence presented at trial supports no reasonable inference other than that defendant’s convictions of first-degree murder and of child abuse resulting in death were based on identical evidence, the trial court erred in imposing consecutive sentences for these convictions. Hence, the sentences were reversed in part and the case was remanded to correct the mittimus to reflect concurrent sentences on defendant’s convictions of first-degree murder and of child abuse resulting in death.

Summary and full case available here.

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Hearsay, the Confrontation Clause, and the Colorado Rules of Evidence

October 17, 2012 by Leave a Comment

Hearsay is governed by Article VIII of the Colorado and Federal Rules of Evidence. In criminal cases, the use of hearsay by the government against the defendant is also governed by the Confrontation Clause. Colorado Rule of Evidence 802, the hearsay rule, provides that “[h]earsay is not admissible except as provided by these rules or by the civil and criminal procedural rules applicable to the courts of Colorado or by any statutes of the State of Colorado.” The general ban on hearsay is premised upon the same beliefs that underlie the Confrontation Clause in the federal and Colorado constitutions, namely, that the reliability of a statement can be most accurately determined when the declarant comes before the fact-finder in person, testifies under oath, and is tested by cross-examination.

Most hearsay testimony is admitted under one of the hearsay exceptions. The exceptions to the general ban are usually premised on a belief that the circumstances surrounding the making of certain types of statements satisfy the reliability concerns that gave rise to the general ban.

CRE 803 enumerates 23 exceptions to the hearsay rule for which the availability of the declarant is immaterial. These include spontaneous present sense impression, excited utterance, recorded recollection, records of regularly conducted activity, public records, and more. Statements can fall under multiple exceptions, such as excited utterance and spontaneous present sense impression.

Rule 804 lists hearsay exceptions that apply when the declarant is unavailable. “Unavailable” is defined and the exceptions are listed, including previous testimony, statements against interest, and statements of personal or family history.

CRE 807 is the “catch-all” or “residual” hearsay exception. It was developed after a 1984 Colorado Supreme Court decision, W.C.L. v. People, 685 P.2d 176 (Colo. 1984), in which the statements of a child victim of sexual assault did not fall into any of the specifically enumerated hearsay exceptions. Rule 807 was carved out of CRE 803(24) and 804(b)(5). The residual exception contained in CRE 807 is an under-utilized tool for admitting hearsay statements that do not fit neatly into any of the specific exceptions set out in the rules of evidence.

It is important for every litigator to know and use the hearsay rules, both as the proponent of the hearsay testimony and in opposition. Visit the CLE offices on Tuesday, October 23, when Pat Furman, law professor at the University of Colorado, will present on “Using, Misusing, and Abusing the Hearsay Rules.”

CLE Program:Using, Misusing, and Abusing the Hearsay Rules

This CLE presentation will take place on Tuesday, October 23, at 12:00 p.m. Participants may attend live in our classroom or watch the live webcast.

If you can’t make the live program or webcast, the program will also be available as a homestudy in two formats: video on-demand and mp3 download.
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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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Colorado Court of Appeals: State Personnel Board Erred in Concluding that Complainants’ Due Process Rights Were Violated; Award of Back Pay and Benefits Reversed

May 1, 2012 by Leave a Comment

The Colorado Court of Appeals issued its opinion in Berumen v. Dep’t of Human Services, Wheat Ridge Regional Center on April 26, 2012.

Termination—Notice—Pre-Disciplinary Meeting—Hearsay—Persons Making Decision to Discharge.

The Department of Human Services, Wheat Ridge Regional Center (WRRC) appealed the State Personnel Board’s (Board) award of back pay and benefits to complainants Maria Berumen and Dawn Adams, employees whom WRRC discharged. Complainants cross-appealed the Board’s determinations upholding their terminations and denying their request for attorney fees. The order was affirmed in part and reversed in part.

WRRC operated a house for developmentally disabled residents, including Client 1 and Client 2. Berumen was a certified Health Care Technician I, and Adams was a certified Client Care Aide II for those residents. After a hearing, the administrative law judge (ALJ) issued an order denying all of complainants’ requests for relief. Complainants then appealed the ALJ’s ruling to the Board. The Board ultimately adopted all of the ALJ’s findings of fact and conclusions of law, except for her conclusion that WRRC gave complainants adequate notice of the pre-disciplinary meeting. The Board thus awarded complainants back pay and benefits from their respective dates of termination up to the first day of the hearing. The Board denied their remaining requests for relief.

On appeal, WRRC contended that the Board abused its discretion in holding that complainants did not receive adequate notice of their pre-disciplinary meetings and in awarding back pay and benefits to them for this alleged violation. The Board’s determination that a public employer must provide a certified public employee advance notice of all of the rights that he or she has at a pre-disciplinary meeting was contrary to the plain language of the applicable Board rule and was not required by due process. Board Rule 6-10 requires that the appointing authority provide notice at the meeting of “the reason for potential discipline” and “the source of that information,” unless disclosure of the source of the information is prohibited by law. The record here reveals that the notices that were given to complainants pursuant to Rule 6-10 comported with the requirements of due process. Because the Board erred in concluding that the complainants’ due process rights were violated, the award of back pay and benefits to complainants was reversed.

Complainants contended that they were denied an opportunity to be heard at their pre-disciplinary meetings because the decision to discharge them was made not by the appointing authority after the pre-disciplinary meetings, but by his supervisor and by WRRC’s investigator before the meetings took place. The ALJ’s finding that the appointing authority made the decision to terminate complainants was supported by the record.

Complainants also contended that the ALJ erred when, over their objection, she allowed WRRC to admit hearsay evidence of statements made by Client 1 and Client 2. Administrative hearings need not comply with the strict rules of evidence. Here, the ALJ found that the clients were not known to have made false statements in the past, would probably refuse to testify, and would likely become physically aggressive toward themselves and others if pushed to answer questions. Therefore, the ALJ did not abuse its discretion in admitting the hearsay statements of Client 1 and Client 2.

Summary and full case available here.

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New Bill Signed Creating Exception to Hearsay Rule; Allows Testimony from Persons with Developmental Disabilities

April 3, 2012 by Leave a Comment

On Tuesday, April 3, 2012, Governor John Hickenlooper signed HB 12-1085 into law, which creates an exception to the hearsay rule and allows testimony from persons with developmental disabilities in certain circumstances.

An out-of-court statement made by a person with a developmental disability that is not otherwise admissible as an exception to hearsay is admissible in any criminal or delinquency proceeding in which the person is alleged to have been a victim and the statement describes all or part of any of the following offenses:

  1. Sexual assault;
  2. Unlawful sexual contact;
  3. Sexual assault on a child;
  4. Sexual assault on a child by one in a position of trust;
  5. Internet exploitation of a child;
  6. Sexual assault on a client by a psychotherapist;
  7. Incest;
  8. Aggravated incest;
  9. Trafficking in children;
  10. Sexual exploitation of a child;
  11. Indecent exposure; or
  12. Criminal attempt to commit any of these acts.

Click here to read the full bill, including further limiting factors for this exception to the hearsay rule.

Additionally, Governor Hickenlooper also signed the following bills into law on Monday:

  • HB 12-1065 – Deadline Advanced Practice Nurse Retain Prescriptive Authority
    • Concerning the Deadline for an Advanced Practice Nurse Who was Granted Prescriptive Authority Prior to July 1, 2012, to develop an Articulated Plan for Purposes of Retaining Prescriptive Authority.
  • HB 12-1061 – The Skills for Jobs Act
    • Concerning Requiring a Report of the Correlation between the Educational Credentials Issued and the State’s Workforce Needs

For a complete list of Governor Hickenlooper’s 2012 legislative decisions, click here.

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Colorado Court of Appeals: Booking Reports Properly Certified, Not Hearsay, and Not Testimonial

November 1, 2011 by Leave a Comment

The Colorado Court of Appeals issued its opinion in People v. Warrick on October 27, 2011.

Possession of Weapon by Previous Offender—Booking Reports—Mittimus—Authentication—Hearsay—Confrontation Rights—Opinion Testimony—Identification.

Defendant appealed the judgment of conviction entered on a jury verdict finding him guilty of possession of a weapon by a previous offender (POWPO) and harassment. The judgment was affirmed.

Defendant contended that the trial court abused its discretion in admitting the booking reports and the mittimus, both of which were used by the prosecution to convict defendant of the POWPO charge, because they were not sufficiently authenticated. The booking reports contained a certification from the Arapahoe County Sheriff’s Office that was signed by the custodian of records. This certification was sufficient evidence to authenticate the booking reports as public records under C.R.E. 901(b)(7). Further, the mittimus was self-authenticating under C.R.E. 902(4), because it was certified and signed, and contained the seal of the Arapahoe County District Court. Accordingly, there was no abuse of discretion in admitting these documents over defendant’s objection.

Defendant also contended that the booking reports and the mittimus were hearsay and that the trial court abused its discretion in admitting them under the public records exception. However, the trial court was appropriate in admitting the booking reports and mittimus under C.R.E. 803(8)(A) and (B).

Defendant contended that admission of the booking reports and the mittimus violated his confrontation rights under the U.S. and Colorado Constitutions. The booking reports and mittimus were not created to establish a material fact at any future criminal proceeding. Rather, they were created for routine administrative purposes. Therefore, the booking reports and the mittimus were not testimonial and did not trigger defendant’s confrontation rights.

Defendant contended that the trial court abused its discretion when it permitted the police officer to testify that conspiracy to commit robbery is a class 5 felony and that “F5” stands for class 5 felony. The officer’s testimony that conspiracy to commit a robbery is a class 5 felony “could be reached by any ordinary person” capable of looking up the applicable provision in the Colorado Revised Statutes. Therefore, the police officer’s testimony, even if it was an opinion, was not expert testimony within the meaning of C.R.E. 702.

Defendant further contended that the trial court abused its discretion and committed plain error requiring reversal of his conviction by admitting the police officer’s testimony identifying him from his booking photos. The police officer testified that he had come into contact with defendant during his investigation and stated that he had gotten a good look at him during that period. Therefore, the officer was personally familiar with defendant and did not err in identifying him.

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: Hearsay Statements About Past Drug Use Were Not Provided to Promote Treatment or Diagnosis by a Doctor

October 17, 2011 by Leave a Comment

The Colorado Court of Appeals issued its opinion in Haralampopoulos v. Kelly, M.D. on October 13, 2011.

Medical Malpractice—Wrongful Admittance of Hearsay Evidence.

In this medical malpractice action, plaintiff Vasilios Haralampopoulos, by his guardian, John Haralampopoulos, appealed the judgment entered on a jury verdict in favor of defendants Jason Kelly, MD and Mauricio Waintrub, MD, as well as the order awarding certain costs to defendants. The judgment and order were reversed and the case was remanded with directions.

Plaintiff went into an emergency room with abdominal pain on November 23, 2004. Tests disclosed a cyst on his liver. The surgeon on call ordered a needle biopsy of the cyst the following day. Dr. Waintrub, the internist on call, took plaintiff’s medical history and admitted him for this procedure but did not ascertain the cause of the cyst. On November 24, Dr. Kelly performed the needle biopsy. Shortly after the cyst was pierced, plaintiff suffered a severe allergic reaction, became hypoxic, and stopped breathing. Before he could be revived, he suffered permanent brain injury.

According to plaintiff’s guardian, had the cause of the cyst been determined, a risk would have been recognized that spillage of the cyst’s contents during a needle biopsy would lead to anaphylactic shock. Guardian alleged Dr. Waintrub was negligent by not ordering tests to determine the cause of the cyst or consulting a specialist before admitting plaintiff for the biopsy. Guardian alleged Dr. Kelly was negligent by failing to consider the cause of the cyst and performing the biopsy without taking appropriate precautions against an allergic reaction. A jury verdict was entered in favor of defendants and plaintiff appealed.

Guardian argued that the jury verdict in favor of defendants should be reversed because the trial court erroneously admitted evidence of plaintiff’s alleged cocaine use. The Court of Appeals agreed, finding that the introduction of hearsay testimony about remote drug use derailed the trial proceedings.

Before the first trial in this matter (which ended in a mistrial related to an insufficient number of remaining jurors after several were excused), guardian moved in limine to exclude hearsay statements, made during depositions, regarding plaintiff’s alleged cocaine use. Defendants argued that the statements fit the medical diagnosis exception, C.R.E. 803(4), and the residual exception, C.R.E. 807. The trial court denied guardian’s motion.

Following the mistrial, the case was assigned to a second judge. Guardian again moved in limine to exclude the hearsay statements because of two changed circumstances concerning additional information about the statements. The court declined to revisit the previous ruling. The trial occurred before a third judge, and in a trial brief, the guardian again raised the hearsay issue. The third judge declined to “revisit the evidentiary rulings that have been made.”

On appeal, the Court of Appeals first examined the rationale supporting the C.R.E. 803(4) exception to the hearsay rule, which is that statements made to a physician are presumptively reliable because the patient trusts that the “effectiveness of the treatment . . . may depend largely upon the accuracy of the information provided to the physician.” Here, plaintiff was in a vegetative state when plaintiff’s former girlfriend disclosed information about his past cocaine use in the 1990s. This information had no diagnostic value at that time and should have been excluded. The hearsay statements at issue were neither consistent with the purpose of promoting treatment or diagnosis, nor was the content of the statements such as is reasonably relied on by a physician in treatment or diagnosis.

The Court also concluded that the testimony regarding plaintiff’s past drug use was not admissible under the residual hearsay exception. The Court could not find that the statements had the necessary guarantees of trustworthiness.

The Court held that hearsay statements relating to fault that are not relevant to diagnosis or treatment are inadmissible under Clark v. People, 103 Colo. 371 (1939). The statements were made when there was no question that the damage to plaintiff was irreversible and there was no hope of restoring his brain function. They could only have been made to find fault.

Finally, the Court held that even if the statements satisfied a hearsay exception, they were highly prejudicial and confusing to the jury and should have been excluded under C.R.E. 403. Accordingly, the judgment was reversed and the case was remanded for a new trial.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on October 13, 2011, can be found here.

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Tenth Circuit: Erroneously Admitted Evidence Regarding Fraudulent Activity Was Harmless Given Overwhelming Amount of Evidence Linking Defendant to the Conspiracy

September 15, 2011 by Leave a Comment

The Tenth Circuit Court of Appeals issued its opinion in United States v. Blechman on Wednesday, September 14, 2011.

The Tenth Circuit affirmed the district court’s conviction. Petitioner was found guilty of of mail fraud, aggravated identity theft, and conspiracy to commit mail fraud and aggravated identity theft. Evidence introduced at trial showed that a co-defendant operated a business that he used to temporarily halt home foreclosures by “attaching” foreclosure properties to fraudulent bankruptcy cases in order to take advantage of the Bankruptcy Code’s automatic stay provision. Several different pieces of evidence connected Petitioner to his co-defendant’s scheme, and Petitioner now challenges the district court’s admission of some of that evidence. In question are an America Online (AOL) record that connected him to the e-mail address “rablechman@aol.com” and three PACER records revealing that he accessed fraudulent bankruptcy cases in Tennessee that were similar to the Kansas bankruptcies identified in the indictment. Petitioner argues that these records contained double hearsay and that the district court erroneously admitted them under the business records exception to the hearsay rule.

The Court agreed with Petitioner that the evidence should not have been admitted under FRE 803(6). However, the erroneous admission of this evidence does not automatically entitle Petitioner to relief; the Court will not reverse a defendant’s conviction on that basis if the error was harmless to the defendant. In this case, other overwhelming evidence linked Petitioner to the “rablechman@aol.com” e-mail address and Petitioner affirmatively put before the jury evidence of the link between himself and email address in order to advance his defense. Under these circumstances, the Court found the error to be harmless. Additionally, “given the amount of other evidence in the record that more directly linked [Petitioner] to [his co-defendant]’s scheme and the Kansas bankruptcies identified in the indictment, [the Court rejected Petitioner]’s argument that admission of [the PACER] exhibits influenced the outcome of the trial.”

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Colorado Court of Appeals: Other Alleged Sexual Assaults Not Sufficiently Similar to Show Common Plan and Evidence Should Not Have Been Admitted

August 22, 2011 by Leave a Comment

The Colorado Court of Appeals issued its opinion in People v. Jones on August 18, 2011.

Sexual Assault—C.R.E. 404(b)—Other Acts Evidence—Sixth Amendment—Right of Confrontation—Hearsay—Non-testimonial.

Defendant appealed the judgment of conviction entered on jury verdicts finding him guilty of sexual assault and unlawful sexual contact. The judgment was reversed and the case was remanded for a new trial.

Defendant contended that the district court erred by admitting evidence under C.R.E. 404(b) that he had allegedly sexually assaulted I.B. and K.U., because those incidents were insufficiently similar to his alleged assault of J.R., the alleged victim in this case. There were significant dissimilarities between the alleged assaults on I.B. and K.U. and the alleged assault on J.R. regarding the location of the attacks, the number of assailants involved, the amount of clothing taken off, the severity and manner of inflicting the physical injuries, and the type of intercourse involved. Most of the similarities—that both were white females with blonde hair and were assaulted in the early morning hours after drinking—are common to many sexual assaults and not “dissimilar from the methods generally used in such an offense.” Accordingly, the two other alleged assaults were not sufficiently similar to the alleged assault of J.R. for evidence thereof to be properly admissible to show common plan, scheme, or design, or to rebut the defense of consent. The district court abused its discretion in admitting this evidence, which comprised most of the prosecution’s case, and such error was not harmless. Therefore, the judgment of conviction was reversed and the case was remanded for a new trial.

Because J.R. died and did not testify at trial, defendant contended that the district court violated his Sixth Amendment right of confrontation by admitting (1) the responding officers’ testimony about J.R.’s demeanor when they arrived at her apartment; (2) the responding officers’ testimony that they brought J.R. to the hospital to be examined for signs of a sexual assault; (3) the testimony from the emergency room doctor and sexual assault nurse about their examinations of J.R.; (4) J.R.’s statement to the triage nurse that she had been raped; and (5) J.R.’s statement to the emergency room doctor that her assailant had held her mouth closed while he assaulted her. The first three pieces of testimony—the officers’ and medical personnel’s testimony about their personal observations and actions—were not hearsay. Thus, this testimony did not implicate defendant’s right of confrontation. Further, J.R.’s statements to medical personnel that she had been raped and that her assailant had held her mouth tightly closed while he assaulted her were made for the purposes of medical diagnosis and treatment and, therefore, were non-testimonial. Accordingly, the district court properly admitted these statements.

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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