May 25, 2018

Colorado Court of Appeals: Self-Defense Instruction Warranted if Evidence Shows Defendant Acted in Self-Defense

The Colorado Court of Appeals issued its opinion in People v. Wakefield on Thursday, March 22, 2018.

Second Degree Murder—Self-Defense—Jury Instruction—Voluntary Statements—Photographic Evidence.

Defendant and the victim were longtime friends, and the victim was visiting defendant from out of state. The victim and defendant argued and were involved in a series of increasingly violent physical fights. Defendant shot the victim, killing him. Right after the shooting defendant indicated to two people that he had acted in self-defense. Defendant testified at trial that when the victim stepped forward and reached for the shotgun defendant was holding, defendant pulled the gun up and away from the victim’s reach, and the gun “went off.” According to defendant, he thought that the victim was going to grab the gun and hurt him with it. Defendant maintained that he did not intend to shoot or hurt the victim. Defendant was tried for first degree murder, but was convicted of the lesser included offense of second degree murder.

On appeal, defendant first argued that the trial court erred by declining to give his tendered jury instruction on self-defense. Article II, section 3 of the Colorado Constitution recognizes the right of a person to act in self-defense, and under binding case law, when a defendant presents at least a scintilla of evidence in support of a self-defense instruction, the court must instruct the jury on self-defense. Here, defendant’s claim of accident in the course of self-defense was not so inconsistent as to deprive him of the right to have the jury instructed on self-defense, and counsel’s tendering of the self-defense instruction was sufficient to preserve the issue for appeal. The trial court’s error warrants reversal of the conviction.

Defendant also argued that the trial court erred by declining to suppress statements he made to both a private security guard and the police following his apprehension. The trial court did not err in declining to suppress the statements under Miranda v. Arizona because they were (1) made to a private security guard and not subject to Miranda; (2) based on Miranda’s public safety exception; or (3) volunteered and therefore not the product on an interrogation. However, the trial court did not make the required findings as to whether defendant’s statements to the police warranted suppression because of defendant’s assertion that the statements were involuntary.

Defendant further argued that the trial court erred by admitting photographs showing a large amount of marijuana in his apartment. Because the probative value of this evidence was substantially outweighed by the danger of unfair prejudice, it should have been excluded under CRE 403, and the court erred in admitting the photos.

The judgment of conviction was reversed and the case was remanded for a new trial. On remand, the court must conduct an evidentiary hearing on the voluntariness and admissibility of defendant’s statements to the police officers, and photos depicting marijuana should be excluded from evidence.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Trial Court Erred in Omitting Jury Instruction on Right Not to Testify, but Reversal Not Required

The Colorado Court of Appeals issued its opinion in People v. Deleon on Thursday, November 16, 2017.

Sexual Assault—Child—Jury Instruction—Right Not to Testify—Hearsay.

Defendant was found guilty of two counts of sexual assault on a child.

On appeal, defendant contended that the district court erred by rejecting his tendered jury instruction on his right not to testify and by failing to instruct the jurors immediately before closing arguments of his constitutional right not to testify. The trial court did not err in choosing to give the jury the pattern jury instruction on defendant’s right not to testify because defendant’s proposed instruction went beyond the language of the pattern instruction. However, the trial court had an obligation to instruct jurors about defendant’s right not to testify before the attorneys made their closing arguments. Although the court violated Crim. P. 30 by not reading the instruction to the jury before closing argument, the court properly instructed jurors on defendant’s right not to testify during voir dire and reminded the sworn jurors of its earlier remarks. Reversal isn’t warranted because the error doesn’t cast serious doubt on the reliability of the judgment of conviction.

Defendant also argued that the district court erred by admitting into evidence the victim’s out-of-court statement to a Sexual Assault Nurse Examiner (SANE nurse) that defendant had been “kicked out of the house.” Defendant argued that by saying he got kicked out of the house, the victim implied that her mother had kicked him out because of the victim’s allegations, which implied that the victim’s mother believed those allegations. Even assuming that the statement was inadmissible hearsay, any error in allowing it was harmless because any inferences defendant drew from the statement were speculative, and the victim’s mother testified that she did not believe the victim.

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Denial of Defendant’s Requested Lesser Included Offense Instruction Not Harmless Error

The Colorado Supreme Court issued its opinion in People v. Rock on Monday, September 11, 2017.

Criminal Law—Lesser Included Offenses.

The People sought review of the court of appeals’ judgment reversing Rock’s convictions for second degree burglary and theft. The trial court denied Rock’s request for an additional, lesser included offense instruction on second degree criminal trespass on the ground that second degree criminal trespass is not an included offense of second degree burglary. The supreme court affirmed the court of appeals’ reversal. The court held that (1) the district court erred in denying Rock her requested instruction on second degree criminal trespass on the ground that it was not a lesser included offense of the charged offense of second degree burglary, and (2) erroneously denying Rock’s requested instruction was not harmless with regard to either of her convictions.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Court of Appeals Misconstrued Meaning of “Deadly Physical Force”

The Colorado Supreme Court issued its opinion in People v. Opana on Tuesday, May 30, 2017.

Criminal Trials.

The People petitioned for review of the court of appeals’ judgment reversing Opana’s conviction for second degree murder in the shooting death of one of his housemates. See People v. Opana, No. 10CA1987 (Colo. App. May 29, 2014). The district court instructed the jury as to the use of deadly physical force in defense of one’s person. In consideration of the statutory definition of the term “deadly physical force,” which limits the applicability of the term to “force, the intended, natural, and probable consequence of which is to produce death,” the court of appeals determined that there was adequate evidence produced at trial for the jury to have found that Opana used physical force not rising to the level of “deadly” physical force, and it concluded that in this case the failure of the trial court to instruct the jury, sua sponte, on the use of physical force generally amounted to plain error.

The supreme court reversed the judgment of the court of appeals and remanded the case for consideration of defendant’s remaining assignments of error because the court of appeals misconstrued the definition of “deadly physical force,” and when that statutory term is properly construed, the evidence at trial did not support an instruction on self-defense predicated on the use of other-than-“deadly” physical force.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: No Error in Failing to Specify Which Act Furthered Conspiracy

The Colorado Court of Appeals issued its opinion in People v. Davis on Thursday, May 4, 2017.

Wiretapping—Conspiracy—Habitual Criminal—Unanimity Instruction—Single Transaction—Limiting Instruction—Prior Conviction—Jury.

After an investigation that entailed wiretapping defendant’s telephones, defendant was charged with one count of conspiracy to distribute a schedule II controlled substance (methamphetamine) and several habitual criminal counts. A jury convicted defendant of the conspiracy charge, and the district court, after finding that defendant was a habitual criminal, sentenced him to 48 years in the custody of the Department of Corrections.

On appeal, defendant contended that the district court erred in not requiring the prosecution to elect the overt act on which it was relying to prove the conspiracy charge. When the People charge a defendant with crimes occurring in a single transaction, they do not have to elect among the acts that constitute the crime, and a special unanimity instruction need not be given. A defendant can participate in a number of crimes or events to accomplish a single conspiracy. Here, the actions occurred in a relatively short time frame, evidence of defendant’s phone conversations with one person primarily established the conspiracy, and all the overt acts on which the jury could have relied were done in furtherance of the same unlawful objective. Therefore, the evidence presented in this case showed one criminal episode, and hence one conspiracy. Further, though the prosecution alleged numerous overt acts in furtherance of the single conspiracy, that did not require unanimous agreement by the jurors as to the precise overt act defendant committed. Therefore, the district court did not err, much less plainly err, in failing to require an election or to give the jury a special unanimity instruction.

Defendant also contended that the district court erred in not providing a limiting instruction to preclude the jury from considering witnesses’ guilty pleas or desires to plead guilty as evidence of his guilt. Here, defendant did not request a limiting instruction, and a trial court’s failure to give a limiting instruction sua sponte does not constitute plain error.

Lastly, defendant contended that his rights to a trial by a jury and to due process of law were violated when the judge, instead of a jury, found that he had been convicted of three prior felonies. The fact of a prior conviction is expressly excepted from the jury trial requirement for aggravated sentencing. Therefore, there was no error.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Trial Court Did Not Err in Refusing to Poll Jurors about Prejudicial News Report

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

Criminal Law—Jury Prejudice—Jury Polling— Prejudicial News Reports.

The Colorado Supreme Court determined whether a trial court abused its discretion by refusing to poll the jury about whether jurors had seen a prejudicial news report that had aired the night before and was available online. Because the trial court gave repeated, specific admonitions to jurors to avoid “newscasts” and “newspaper sites” (including on the day of the newscast), and these were the only places on which the prejudicial report was available, the court held that the trial court did not abuse its discretion when it refused to poll jurors. Therefore, the supreme court reversed the court of appeals’ judgment and affirmed defendant’s conviction.

Summary provided courtesy of The Colorado Lawyer.

Tenth Circuit: Mens Rea Element Applies to Both Chemical Composition Issue and Substantial Similarity Issue

The Tenth Circuit Court of Appeals issued its opinion in United States v. Makkar on Monday, November 23, 2015.

Iqbal Makkar and Gaurav Sehgal ran a small town convenience store in Oklahoma. Law enforcement authorities questioned Makkar and Sehgal about some of the incense they carried at the store, and the owners offered to allow the officers to test it and stop carrying the incense while it was tested. However, despite their cooperation, federal authorities indicted and convicted Makkar and Sehgal of violation of the Controlled Substances Analogue Enforcement Act. On appeal, Makkar and Sehgal argued that the jury instructions incorrectly stated the elements of the offense and that the district court erred in granting the government’s motion in limine to exclude evidence of their cooperation. The Tenth Circuit agreed with both arguments.

The Tenth Circuit first discussed the Analogue Act and the Supreme Court’s recent ruling in McFadden v. United States, 135 S. Ct. 2298 (2015), in which the Supreme Court accepted the government’s concession that to prove that a drug violates the Analogue Act it must (1) be substantially similar in chemical structure to a schedule I or II controlled substance, and (2) have, or be intended to have, a similar effect on the central nervous system as a schedule I or II controlled substance. The government further acknowledged that the defendant knew the drug he possessed had both features or was controlled by the CSA or Analogue Act. The Tenth Circuit compared the Analogue Act to the residual clause of the Armed Career Criminal Act, noting that it was an open question whether the Analogue Act would survive a constitutional vagueness challenge.

Turning to Makkar and Sehgal, the Tenth Circuit noted that at trial, the government did not introduce evidence that defendants knew the incense was substantially similar in chemical structure to marijuana, only that they knew it had a substantially similar effect to marijuana. The district court allowed the government’s proposed instruction that the mens rea element regarding the chemical structure could be inferred from the effect. This was in error because it relieved the government of its burden of proof and also eliminated one of the elements of the charged offense. The Tenth Circuit rejected the government’s argument that the error was not plain, and also that the DEA effectively rejected the government’s inference instruction by concluding that the drug in the incense does not have a substantially similar chemical structure to marijuana. Finding that the error prejudiced defendants and impaired their right to a fair trial, the Tenth Circuit reversed the convictions.

Next, the Tenth Circuit addressed Sehgal’s argument that the district court erred in granting the government’s motion in limine to exclude evidence of the defendants’ cooperation with law enforcement during the investigation. The Tenth Circuit agreed, finding that the evidence was entirely relevant to determine whether defendants possessed the requisite mens rea to form a violation of the Analogue Act, and the district court erred by effectively bypassing the mens rea element.

The Tenth Circuit reversed Makkar’s and Sehgal’s convictions, expressing doubts as to whether the men could be retried under the Analogue Act.

Colorado Court of Appeals: District Court Reasonably Relied on Appellate Ruling in Applying Extraordinary Risk Enhancer

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

Reasonable Doubt—Voir Dire—Due Process—Burden of Proof—Admission of Evidence—Extraordinary Risk—Sentencing.

Griego attempted to rob a liquor store at gunpoint. After exchanging gunfire with the store’s clerk, Griego was shot while fleeing the store. He was then transported to the hospital and arrested. Months later, Griego and his attorney met with authorities and told them that defendant had put him up to the robbery as part of a gang initiation. Defendant was convicted of attempted second-degree murder, conspiracy to commit second-degree murder, attempted aggravated robbery, and conspiracy to commit aggravated robbery for his role in planning and encouraging Griego’s commission of the offense.

On appeal, defendant contended that the court’s reasonable doubt analogy during the court’s voir direviolated his due process rights by lowering the prosecution’s burden of proof and allowing the jury to convict on something less than proof beyond a reasonable doubt. However, the court twice read the proper reasonable doubt instruction to the jury and provided it with a written copy. Even assuming the court committed error in its voir dire, the jury was adequately informed of the law, and it is presumed that the jury followed these instructions. Therefore, the court’s comments on reasonable doubt do not require reversal.

Defendant also contended that the court abused its discretion in refusing to admit the telephone call between Griego and his mother during which Griego admitted that he had “done his dirt” to become a Blood. However, the court never ruled on whether defense counsel could impeach Griego with the recorded call, and defense counsel failed to pursue admission of the evidence. Further, the defense investigator could not present the proper foundation for admission of the call because he was not a party to the call, present during the call, or familiar with the recording process. Therefore, the trial court did not err in excluding this evidence.

Finally, because defendant was not convicted of a crime of violence as defined in CRS § 18-1.3-406, the district court erred in applying the extraordinary risk sentencing provision to defendant’s attempted second-degree murder and conspiracy to commit second-degree murder convictions. However, the error was not obvious. The judgment and sentence were affirmed.

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

Tenth Circuit: Witness Tampering Charges Affirmed Where Potential Witness Told to Lie About the Important Stuff

The Tenth Circuit Court of Appeals issued its opinion in United States v. Sparks on Friday, June 26, 2015.

Gary Sparks’ daughter, Stacy Ashley, was imprisoned pending trial on charges of distribution of a controlled substance with death resulting. H.L., Ms. Ashley’s daughter, was supposed to testify at trial that she saw her mother and the deceased exchange pills on the night the man overdosed. Three weeks before trial, Sparks took his granddaughter, H.L., to visit her mother in jail, and after seeing Ms. Ashley they went to dinner. H.L. reported that at dinner, Sparks told her “I heard you should only lie about the important stuff,” but Sparks said he only told her that everything would be okay and reassured her to have faith. H.L. never testified at her mother’s trial, but prosecutors eventually learned about the exchange with her grandfather and charged Sparks with two counts of witness tampering. Sparks was convicted and sentenced to 36 months’ imprisonment followed by two years of supervised release. Sparks appealed, arguing the evidence was insufficient to support his conviction and the jury was not properly instructed on an affirmative defense.

The Tenth Circuit first evaluated Sparks’ sufficiency claim. Sparks argued the evidence was insufficient to support his conviction because the phrase “you should only lie about the important stuff” was insufficient to qualify as an attempt to corruptly persuade. Sparks said that because he did not direct his granddaughter to lie he could not have “persuaded” her to do so. The Tenth Circuit disagreed. Analyzing the meaning of the word “persuade” in context of its prior precedent, the Tenth Circuit found no need for “an act, a threat, an emotional appeal, or persistent pleading” in order for a statement to be viewed as persuading. The Tenth Circuit found ample evidence to support the jury’s conviction based on the familial relationship, the proximity of the trial, and the timing of the statement right after seeing H.L.’s mother in jail.

Turning to Sparks’ contention that the jury was not properly instructed on the affirmative defense that his conduct consisted solely of lawful conduct encouraging the witness to testify truthfully, the Tenth Circuit again affirmed the district court. The Tenth Circuit found Sparks’ argument failed at the first prong of plain error review, because even viewing the evidence in the light most favorable to Sparks he did not encourage H.L. to testify truthfully.

The Tenth Circuit affirmed Sparks’ convictions.

Tenth Circuit: Conviction Stands Despite Jury’s Lack of Instruction on “Discharge” of Firearm

The Tenth Circuit Court of Appeals issued its opinion in United States v. Mann on Monday, May 18, 2015.

Clay Mann threw a firework into a neighbor’s bonfire at the neighbor’s peaceful gathering on an Indian reservation, and when members of the gathering approached the fenceline to confront Mann, he shot nine times, killing one man and grievously wounding one other man and the neighbor. For these acts, he was indicted on eight counts by a federal grand jury. Two weeks after the jury’s verdict, Mann filed a “motion to arrest judgment” based on the Supreme Court’s decision in Alleyne v. United States, 133 S. Ct. 2151 (2013), arguing that his conviction on Count 5 (a firearms offense based on the assault of the neighbor under § 924(c)) must be vacated because the jury did not find “discharge” of a firearm beyond a reasonable doubt. The district court conducted a plain error inquiry and determined it had erred by failing to instruct the jury on the element of discharging the firearm and the error was plain. The district court, however, found the error had not prejudiced Mann, because he had never contested that he fired shots. The district court sentenced Mann to three concurrent 51 month sentences for the involuntary manslaughter and two assault convictions, and a consecutive 120 month sentence for the § 924(c) conviction regarding the assault of the neighbor. Mann appealed.

The Tenth Circuit conducted a plain error review. Mann argued on appeal that the district court constructively amended count 5 of his indictment by not instructing the jury that, to convict, it needed to find beyond a reasonable doubt that he knowingly discharged his firearm in relation to the assault. Finding that the district court properly instructed the jury on the elements of a § 924(c) violation, the Tenth Circuit could discern no error, much less plain error. The Tenth Circuit found that the Alleyne error (failure to instruct the jury that it must find discharge beyond a reasonable doubt) did not qualify Mann for any relief in light of the overwhelming evidence that he discharged a firearm several times during the assault, including Mann’s own FBI interview in which he admitted discharging the firearm. Any error was harmless beyond a reasonable doubt in light of this evidence.

The Tenth Circuit likewise concluded Mann could not use the error from the Alleyne analysis on his constructive amendment claim, since he was not required to show constructive amendment for his Alleyne claim. Although the government endorsed Mann’s “shortcut,” the Tenth Circuit did not. Turning to the merits of Mann’s argument, the Tenth Circuit noted the case law on which he relied for his claim of error had been rejected by the Supreme Court. The Tenth Circuit, relying on good case law, found that Mann failed to show any error and rejected his constructive amendment claim.

The district court’s conviction was affirmed.

Colorado Court of Appeals: Jury Determination that Defendant’s Negligence Did Not Cause Plaintiff’s Injuries Acceptable

The Colorado Court of Appeals issued its opinion in Vititoe v. Rocky Mountain Pavement Maintenance, Inc. on Thursday, June 18, 2015.

Personal Injury—Challenges to Jurors and Jury Verdict and Jury Instructions.

Plaintiff was riding his motorcycle late at night. Shortly after making a U-turn, he collided with a lowboy trailer that was connected to a tractor driven by an employee of defendant. The collision occurred as the tractor was either stopped or beginning to proceed through an intersection controlled by a traffic signal that had turned green.

Plaintiff alleged negligence on the part of the truck driver. Plaintiff’s expert opined that defendant’s employee had worked more than the allowable fourteen-hour day and was likely tired and inattentive at the intersection and stopped for an unreasonable amount of time. Another expert for plaintiff testified that the taillights were positioned too low. The jury returned a special verdict form finding defendant was negligent but its negligence was not a cause of plaintiff’s injuries. Judgment was entered for defendant.

On appeal, plaintiff argued that some of the jurors made prejudicial statements during voir dire concerning motorcyclists’ helmet use, and that the trial court erred by refusing to canvass the jurors on that topic, give a limiting instruction, or declare a mistrial. The Court of Appeals disagreed. In Colorado, evidence of a plaintiff’s failure to wear a helmet is inadmissible to show negligence on the part of the plaintiff or to mitigate damages. If the jury learns a motorcyclist was not wearing a helmet, a limiting instruction may be required. When a prospective juror makes a potentially prejudicial statement during voir dire, the trial court may issue a curative instruction, canvass the jury, or declare a mistrial. Whether a statement is potentially prejudicial depends significantly on the facts and circumstances. Here, no juror expressed an opinion that plaintiff was negligent for not wearing a helmet and, in fact, there was no evidence allowed as to whether or not plaintiff wore a helmet.

Plaintiff argued that the evidence admitted at trial did not support the jury’s verdict. After reviewing the evidence presented, the Court found that there was competent evidence to support the verdict.

Plaintiff argued that the court erroneously instructed the jury by not omitting any reference to the doctrine of assumption of risk because the evidence did not support it. The Court found that testimony from a detective that plaintiff “accelerated toward something he saw” supported the instruction regarding assumption of risk.

Plaintiff argued that the court erred by instructing the jury that the law presumes a driver is negligent if the driver hits another vehicle in the rear. Plaintiff contended that the instruction should not have been given because this was not a rear-end collision, but a barrier crash. The Court found no authority to suggest that hitting the lowboy trailer, even if not moving forward, constituted a barrier crash as opposed to a type of rear-end collision. The judgment was affirmed.

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

Colorado Court of Appeals: Constructive Amendment to Charges Does Not Require Reversal Where No Plain Error

The Colorado Court of Appeals issued its opinion in People v. Weeks on Thursday, June 18, 2015.

Death of a Child—Other Acts Evidence—Jury Instruction—Indictment—Pattern of Conduct—Expert Medical Testimony—Substitution of Counsel.

Defendant appealed the judgment of conviction entered on jury verdicts finding him guilty of first-degree murder and child abuse. Defendant’s convictions arose out the death of his 3-year-old daughter, A.M., who was declared brain dead after she was physically abused after urinating in her bed.

On appeal, defendant contended that reversal was required because the trial court erroneously admitted evidence of other acts showing that defendant had physically punished his other daughters and family pets for urinating and/or vomiting in the house. This other-acts evidence was properly admitted to show intent, knowledge, and absence of mistake or accident pursuant to CRE 404(b), and the incidents were sufficiently similar and numerous to be probative of an issue that was in dispute. Further, the evidence was logically relevant to disprove defendant’s claim that A.M.’s death was accidental.

Defendant also contended that his conviction and sentence for child abuse must be reversed or vacated because the court’s elemental jury instruction on child abuse effected a constructive amendment of the charge contained in the indictment. Defendant was charged in the indictment with all three categories of abuse. Varying slightly from the text of CRS § 18-6-401(1)(a), however, the indictment did not listmalnourishment and lack of proper medical care as the effects of defendant’s continued pattern of conduct against A.M. Moreover, the instruction included the two statutory effects that had been omitted from the indictment. Therefore, the instruction constructively amended the indictment. However, because defendant did not object to the instructions in the trial court, reversal was not warranted.

Defendant contended there was insufficient evidence of a causal connection between defendant’s pattern of conduct and A.M.’s death to support his conviction. The last phrase of CRS § 18-6-401(1)(a) (“ultimately results in the death of a child or serious bodily injury to a child”) applies only to the last enumerated pattern of abuse (“an accumulation of injuries”). The other enumerated patterns of abuse do not require a showing that they resulted in death or serious bodily injury. Therefore, it was sufficient for the prosecution to show that defendant engaged in a pattern of conduct that resulted in mistreatment and cruel punishment of A.M., which ultimately resulted in A.M.’s death.

Defendant also argued that the trial court erred in permitting expert medical testimony on an ultimate issue to be determined by the jury. It was not an abuse of discretion to allow four medical experts to testify that A.M.’s injuries were not accidental. These experts did not give an opinion regarding whether defendant inflicted A.M.’s injuries or whether those injuries fit the legal definition of child abuse.

Defendant argued that the court deprived him of his right to conflict-free counsel, to present a defense, and to testify when it denied his midtrial request for a substitution of counsel. An actual conflict does not arise when trial counsel pursues a strategy that would impede a defendant’s right to testify, even over the defendant’s protest. Any alleged conflict did not deprive defendant of the right to testify and call witnesses. Consequently, the trial court did not error in denying defendant’s request for new counsel. The judgment of conviction was affirmed.

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