May 21, 2017

Colorado Supreme Court: Trial Court Erred in Admitting Non-expert Testimony on Sexual Predator Grooming

The Colorado Supreme Court issued its opinion in Romero v. People on Monday, May 1, 2017.

Criminal Law—Expert Testimony—Jury Access to Exhibits.

This case required the Colorado Supreme Court to address two issues it recently addressed in two other cases, People v. Jefferson, 2017 CO 35, and Venalonzo v. People, 2017 CO 9. Specifically, the court resolved (1) whether a trial court commits plain error when it fails to limit, sua sponte, a jury’s access to recorded statements during jury deliberations, and (2) whether a trial court abuses its discretion when it allows a police officer to testify as a lay witness about the concept of grooming in the context of sexual predation. The court held that a trial court does not commit plain error when it does not limit a jury’s access to recorded statements without an objection, and that a trial court abuses its discretion when it allows a witness to testify about grooming without qualifying that witness as an expert. The court therefore reversed defendant’s convictions and remanded the case for a new trial.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Allowing Jury Unfettered Access to DVD Unfairly Prejudiced Defendant

The Colorado Supreme Court issued its opinion in People v. Jefferson on Monday, April 24, 2017.

Testimonial Evidence—Electronic Exhibits—Jury Deliberations—Abuse of Discretion.

This case concerns the scope of a trial court’s discretion to permit, deny, or restrict the jury’s access during deliberations to a DVD containing the recorded statement of a child sexual assault victim, which DVD was admitted as an exhibit in a criminal trial. The Colorado Supreme Court concluded that the trial court did not employ the requisite caution to ensure that the DVD would not be used in such a manner as to create a likelihood that the jury would accord it undue weight or emphasis. Specifically, the trial court relied on the Colorado Court of Appeals’ analysis in People v. DeBella, 219 P.3d 390, 396-97 (Colo. App. 2009), rev’d, 233 P.3d 664 (Colo. 2010). By relying on an analysis that the supreme court later rejected, the trial court misapplied the law and abused its discretion. Moreover, because the nature of the DVD and its importance to the case’s resolution left the court with grave doubts as to the effect that unfettered access had on the verdict and the fairness of the proceedings, the court could not deem the error harmless. The court of appeals’ judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: No Plain Error in Allowing Jury Access to DVD Where Defense Based on Motive, Not Inconsistency

The Colorado Supreme Court issued its opinion in Martinez v. People on Monday, April 24, 2017.

Testimonial Evidence—Electronic Exhibits—Jury Deliberations—Plain Error.

The Colorado Supreme Court reviewed for plain error a trial court’s decision to allow the jury unfettered access, during its deliberations, to the out-of-court statements of three sexual assault victims. These statements were memorialized in three DVDs and three transcripts thereof, all of which had been admitted as exhibits in petitioner’s criminal trial. The court concluded that even if the trial court erred in allowing the jury unfettered access to the victims’ statements, on the facts of this case, any such error did not so undermine the fundamental fairness of the trial itself as to cast serious doubt on the reliability of petitioner’s convictions, and thus was not plain. Accordingly, the court affirmed the judgment of the court of appeals and remanded the case for further proceedings consistent with the opinion.

Summary provided courtesy of The Colorado Lawyer.

Tenth Circuit: Attorney-Client Privilege Belongs to Party who Hires Attorney, Not its Executives

The Tenth Circuit Court of Appeals issued its opinion in United States v. Merida on Tuesday, July 12, 2016.

Jason Merida was the executive director of construction for the Choctaw Nation. After an investigation revealed he had engaged in several acts of fraud to the detriment of the Nation, he was charged with several counts related to embezzlement, conspiracy, and failing to report income on his tax returns. Prior to trial, Choctaw’s attorney interviewed Merida. At the beginning of the interview, the attorney informed Merida that he was the attorney for the Nation and the interview was covered by the attorney-client privilege.

The Nation allowed portions of the interview to be used at trial to impeach Merida. When the impeachment testimony was admitted, Merida’s counsel objected and requested a bench conference. He moved for a mistrial, arguing the transcript was protected by the attorney-client privilege because the Nation’s attorneys were acting as Merida’s attorneys during the interview. The district court denied the motion, finding that any privilege belonged to the Tribe. The trial proceeded. After several hours of jury deliberations, the jury delivered to the court a note stating, “We can’t agree on a single count. What are your directions?” The court provided a modified Allen instruction and suggested that they adjourn for the evening and reconvene in the morning. The jury requested to be allowed to vote before adjourning, and quickly returned verdicts of guilty on six counts and not guilty on one count. Merida was sentenced accordingly and appealed, contesting only the court’s denial of his motion for mistrial.

The Tenth Circuit found no error in the district court’s determination that any privilege belonged to the Nation, and further found that its precedent required that determination. The Circuit noted that the Nation’s attorney did not aver that he was Merida’s attorney, but rather said that he was representing the Nation and any conversation was covered by the attorney-client privilege. Merida argued he reasonably believed the attorney was working for him, but the Circuit disagreed, noting that the privilege only applies where the client has sought out the attorney’s services. Since Merida was summoned by the Nation and had not requested the attorney’s services, the privilege did not apply to him.

The Tenth Circuit further evaluated any error that may have been caused, and determined it was harmless beyond a reasonable doubt. The evidence of Merida’s guilt was overwhelming, whereas the questioning that provoked Merida’s motion for a mistrial was only a few pages of the 5,000 page transcript. Merida also argues that it was a “close case” based on the jury’s note that it could not agree on a single count, but the Tenth Circuit found that the circumstances of the case strongly supported a reading that the jury had agreed on six of the seven counts but could not agree on the seventh—a “single” count.

The Tenth Circuit affirmed the district court’s denial of a mistrial because the attorney-client privilege belonged to the Nation. Judge Lucero wrote a separate concurrence to emphasize that Merida could not have subjectively believed the attorney-client privilege to apply to him.

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

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

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

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

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

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

Colorado Court of Appeals: Inconsistent Answers on Special Interrogatories Do Not Render Verdict Invalid

The Colorado Court of Appeals issued its opinion in People v. Rail on Thursday, February 25, 2016.

Sexual Assault on a Child—Jury—Polling—Verdict Forms—Interrogatories—Waiver—Simple Variance—Expert Witness—Colorado Sex Offender Lifetime Supervision Act of 1998.

B.H. testified that beginning when she was about 5 years old and continuing for several years, Rail showed her sexually explicit photos and then subjected her to sexual contact.

On appeal, Rail contended that his convictions for sexual assault on a child (SAOC) and the pattern enhancer cannot stand because the jury’s answers to the unanimity and pattern interrogatories conflicted with each other and with the guilty verdict on the SAOC charge, thus constituting structural error. The jury received separate verdict forms for both the SAOC and the sexual assault on a childposition of trust (SAOC-POT) charges. The trial court polled the jury, but the partial polling left two inconsistencies unresolved: First, on the SAOC general verdict form, the jury found Rail guilty, while it indicated on the unanimity interrogatory that none of the four incidents had been proved. Second, the jury’s answers to the unanimity interrogatory marked the four incidents as not proved, but on the pattern interrogatory, it marked those same four incidents as proved. The Court of Appeals held that inconsistent interrogatory answers do not constitute structural error. Because defense counsel did not object to the inconsistencies when the trial court announced the verdicts and did not request further polling, Rail waived appellate review of this issue.

Rail next contended that the trial court’s response to a jury question during deliberations constructively amended the information as to the SAOC charge, requiring reversal. The Court found that by allowing the jury to find Rail guilty of a sexual assault that occurred outside the time frame alleged in the information, the trial court allowed a simple variance from the information, not a constructive amendment to it. Because Rail failed to show how he was prejudiced by the simple variance, reversal was not required.

Rail further asserted that the trial court violated his constitutional rights to due process and a fair trial by admitting expert testimony on the general behavior of child sexual abuse victims. Because the expert’s testimony was reliable, did not impermissibly bolster B.H.’s credibility, and was not unfairly prejudicial, the trial court did not abuse its discretion in qualifying the witness as an expert and permitting her to testify regarding the behavior of child sex abuse victims.

Rail also challenged the constitutionality of the Colorado Sex Offender Lifetime Supervision Act of 1998. The Court found this argument meritless.

The judgment of conviction was affirmed.

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

Colorado Court of Appeals: Error to Allow Alternate Juror to Deliberate After Party’s Objection

The Colorado Court of Appeals issued its opinion in Johnson v. VCG Restaurants Denver, Inc. on Thursday, December 31, 2015.

Alternate Juror—Deliberations—Verdict—Objection.

Plaintiff was a patron at VCG’s adult nightclub. While waiting outside after the nightclub had closed, he was confronted by a VCG employee. An altercation ensued between the two men, and plaintiff sustained physical injuries. Plaintiff brought claims against several defendants, including the employee and VCG. The jury deliberated and found in favor of some of the defendants, but it returned a verdict in plaintiff’s favor with respect to the employee and VCG. The trial court entered a final judgment of $74,452.83 against the employee and $246,462 against VCG.

On appeal, defendants contended that the trial court erred in allowing an alternate juror to deliberate with the jury over their objection. CRCP 47(b) does not grant a trial court the discretion to permit an alternate juror to deliberate and participate fully with the principal jurors in considering and returning a verdict when one party objects. Further, erroneously permitting an alternate juror to do so is presumptively prejudicial. Therefore, the judgment was reversed and the case was remanded for a new trial.

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

Colorado Court of Appeals: Mistake in Jury Instruction Resulted in Constructive Amendment of Charge

The Colorado Court of Appeals issued its opinion in People v. Riley on Thursday, October 22, 2015.

Attempt to Influence a Public Servant—Tampering With Physical Evidence—Second-Degree Forgery—Jury Instructions—Constructive Amendment of Information—Jury Deliberations—Audio Recording.

The People charged defendant with third-degree assault and harassment for allegedly attacking his ex-wife. After the charges were filed, defendant gave his attorney a receipt from a hotel that purportedly showed that defendant was not in Colorado on the dates of the charged offenses. Because the receipt contained fraudulent information based on defendant’s alterations of it, the People charged defendant with attempt to influence a public servant, tampering with physical evidence, and second-degree forgery.

On appeal, defendant argued that the trial court erred when it instructed the jury on the uncharged offense of felony forgery rather than the charged offense of second-degree forgery (a misdemeanor). The trial court’s instruction constituted a constructive amendment of the information because it changed an essential element of the charged offense and allowed the jury to convict defendant of an uncharged crime. Further, second-degree forgery is not a lesser included offense of felony forgery. Because it is constitutionally prohibited to convict a defendant of a charge not contained in the information, defendant’s conviction for second-degree forgery was reversed.

Defendant also argued that because the trial court did not provide the jury with instructions defining the terms “attempt” and “official proceeding,” his convictions for attempt to influence a public servant and tampering with physical evidence must be reversed. The Court of Appeals disagreed. Defendant cited no authority for the proposition that the term “attempt” in CRS § 18-8-306 should be defined by reference to the entirely separate criminal attempt statute. In addition, although “official proceeding” is defined in the statute, any error was harmless because defendant failed to show that this error contributed to his conviction for tampering with physical evidence.

Defendant further argued that the trial court erred in allowing jurors unfettered access to an audio recording between the prosecutor and defendant’s ex-wife about a conversation she had with defendant. When defendant’s ex-wife testified at trial, she denied everything she had initially told the police about the attack and all the statements she had made during the recorded interview with the prosecutor. The audio recording of the interview was admitted as prior inconsistent statements, and the recording was played for the jury during her testimony. Although the trial court failed to exercise its discretion with respect to the jury’s access to the recording during deliberations, such failure did not substantially influence the verdict or affect the fairness of the trial such that reversal of defendant’s convictions was required.

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

Colorado Supreme Court: Protecting the Secrecy of Jury Deliberations is of Paramount Importance in Our Justice System

The Colorado Supreme Court issued its opinion in Pena-Rodriguez v. People on Monday, May 18, 2015.

Secrecy of Jury Deliberations—CRE 606(b)—Sixth Amendment Right to Impartial Jury.

After entry of a guilty verdict, defense counsel obtained juror affidavits suggesting that one of the jurors exhibited racial bias against defendant during deliberations. The Supreme Court granted certiorari to consider whether CRE 606(b) applies to such affidavits and, if so, whether the Sixth Amendment requires their admission. The Court held that the affidavits regarding the juror’s biased statements fall within the broad sweep of CRE 606(b) and that they do not satisfy the rule’s “extraneous prejudicial information” exception. The Court further held that the trial court’s application of CRE 606(b) did not violate defendant’s Sixth Amendment right to an impartial jury. Accordingly, the Court affirmed the judgment of the court of appeals.

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

Colorado Court of Appeals: Jurors Appropriately Allowed Unfettered Access to Video of Defendant’s Voluntary and Admissible Confession During Deliberations

The Colorado Court of Appeals issued its opinion in People v. Gingles on Thursday, December 4, 2014.

Jury—Evidence—Videotaped Admission—Deliberations—Jury Instructions—Invited Error—Vehicular Eluding—Double Jeopardy—Separate Volitional Acts.

Defendant fled from police in a stolen vehicle. After that vehicle broke down, he pushed a driver out of another vehicle and fled in that vehicle. A jury found defendant guilty, as charged, of second-degree kidnapping, one count of aggravated motor vehicle theft, and two counts of vehicular eluding. The jury also found him guilty of robbery and third-degree assault, as lesser-included offenses of his other charges.

On appeal, defendant contended that the trial court erred in permitting the jury to have unfettered access to the video recording of his confession. Jurors are allowed unrestricted access during deliberations to a defendant’s voluntary and otherwise admissible confession. Therefore, the court did not err.

Defendant also contended that the trial court erroneously instructed the jury that he could be convicted of robbery based on the use of force, threats, or intimidation “against any person” rather than against the innocent driver specifically. Because defense counsel proposed the instruction, the invited error doctrine bars defendant’s challenge to it on appeal. The case was remanded with instructions to correct the mittimus to reflect that defendant was convicted of robbery, not aggravated robbery.

Defendant further contented that his two convictions for vehicular eluding were imposed in violation of constitutional double jeopardy guarantees. Defendant committed two different volitional acts directed at two different officers at different times. Therefore, the evidence was sufficient to support two separate convictions of vehicular eluding. The judgments were affirmed and the case was remanded with directions.

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