December 11, 2017

Colorado Court of Appeals: Heat of Passion Jury Instruction Impermissibly Lowered Prosecution’s Burden of Proof

The Colorado Court of Appeals issued its opinion in People v. Tardif on Thursday, November 2, 2017.

Jury InstructionsBurden of ProofHeat of Passion ProvocationAttempted Second Degree MurderFirst Degree AssaultMitigating FactorEvidenceDue ProcessSelf-DefenseDeadly Physical ForceSlow Motion VideoUnfair Prejudice—Prosecutorial Misconduct.

Tardif’s friend Soto was at a skate park and got into an argument with the victim. Tardif and Soto were members of the same gang, and the victim was wearing the colors of a rival gang. Soto called Tardif, and when Tardif arrived, Tardif and Soto walked up to the victim and Tardif shot him once in the abdomen. The victim fled and survived. Other people in the skate park recorded video of part of the initial argument between Soto and the victim as well as the shooting. A jury found Tardif guilty of attempted second degree murder, first degree assault, conspiracy to commit first degree assault, and three crime of violence counts.

On appeal, Tardif argued that the trial court erred by not instructing the jury that the prosecution had the burden to prove the absence of heat of passion provocation beyond a reasonable doubt. Heat of passion provocation is a mitigating factor for attempted second degree murder and first degree assault. Here, the heat of passion provocation instructions failed to inform the jury that the prosecution had to prove the absence of heat of passion provocation beyond a reasonable doubt. Therefore, the instructions, considered together, failed to properly instruct the jury on the prosecution’s burden of proof. Because Tardif presented sufficient evidence for a heat of passion provocation instruction, the error lowered the prosecution’s burden of proof and violated Tardif’s constitutional right to due process. Tardif also argued that the trial court’s self-defense instructions included several reversible errors. Self-defense is not an affirmative defense to conspiracy to commit first degree assault, and therefore, the court did not err in failing to instruct the jury that it was. But the trial court erred by instructing the jury on when deadly physical force may be used in self-defense because deadly physical force requires death, and here the victim did not die.

Tardif additionally argued that the trial court erred by admitting slow motion video recordings of the shooting. Although this evidence was relevant to explain the events around the shooting and to determine whether defendant acted with aggression or in self-defense, the probative value of the slow motion recordings was very low. This evidence was also cumulative of the real-time recording that was also admitted. Further, because Tardif’s state of mind at the time of the shooting was a disputed issue, the slow motion recordings’ low probative value was substantially outweighed by the danger of unfair prejudice. The slow motion recordings may have portrayed Tardif’s actions as more premeditated than they actually were. The trial court abused its discretion by failing to weigh the slow motion recordings’ probative value against their danger of unfair prejudice.

Tardif further argued that two statements by the prosecutor during closing argument constituted misconduct and required reversal. The court of appeals did not doubt the reliability of Tardif’s conspiracy conviction and concluded that the prosecutor’s allegedly improper statements did not constitute plain error.

The conspiracy to commit first degree assault conviction was affirmed. The remaining convictions were reversed and the case was remanded with directions.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: No Rational Basis Existed in Evidence to Grant Lesser Included Offense Instruction Request

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

Criminal Law—Lesser Non-Included Offenses—Jury Instructions.

The supreme court reviewed the court of appeals’ opinion reversing defendant’s convictions for felony menacing on the ground that defendant was entitled to a jury instruction on the lesser non-included offense of disorderly conduct with a deadly weapon. Under the supreme court’s case law, a defendant is entitled to a jury instruction on a lesser non-included offense where there exists a rational basis in the evidence to simultaneously acquit the defendant of the greater charged offense and convict the defendant of the lesser offense. Here, based on the evidence presented at trial, there was no rational basis for the jury to simultaneously acquit defendant of felony menacing and convict him of disorderly conduct. The court of appeals’ judgment was reversed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Cumulative Effect of Numerous Errors Required Reversal

The Colorado Court of Appeals issued its opinion in People v. Stewart on Thursday, July 27, 2017.

Felony Menacing—Obstructing a Peace Officer—Witness—CRE 611—CRE 612—CRE 404(b)—Jury Instruction—Request for Continuance—Cumulative Effect of Errors—Prejudice.

Inebriated, defendant took a cab from a friend’s house and refused to pay his $4.85 cab fare. Defendant jumped from the cab and, chased by the cab driver and a nearby police officer, ran to his apartment, which was surrounded by a six-foot privacy fence that enclosed defendant’s private patio and was secured by a locked gate. At least one officer scaled the fence and opened the gate for remaining officers to enter. After officers breached the fence, they saw defendant behind his window blinds with a plastic BB gun, which they believed to be real. Officers opened fire and defendant suffered two gunshot wounds. A jury convicted defendant of felony menacing and obstructing a peace officer.

On appeal, defendant raised evidentiary errors. The court of appeals determined that the trial court erred by allowing the prosecution to improperly lead a witness, in violation of CRE 611(c). The court’s failure to follow the appropriate procedure to refresh recollection also violated CRE 612. This error was prejudicial, but harmless in isolation. The trial court further erred by allowing the prosecution to present evidence that defendant previously hid from the police, in violation of CRE 404(b). This evidence was irrelevant to any issue at trial other than the habit and character of defendant; it prejudiced defendant and affected the fairness of the proceedings.

Defendant further argued that the trial court erroneously instructed the jury concerning exigent circumstances. The court was unable to determine the relevance of the instruction, and it appeared that the instruction was not an accurate or complete statement of the law. This error alone did not require reversal, but it contributed to the cumulative effect of the other errors.

Defendant also argued that the trial court erred by denying his request for a continuance to subpoena the cab driver. Refusing the continuance prejudiced defendant by denying him a key witness, affecting the fairness of the trial proceedings.

Considered in isolation, each of the errors might be viewed as harmless, but in the context of a single trial, the cumulative effect of the errors requires reversal of defendant’s conviction.

The judgment was reversed and the case was remanded for a new trial.

Summary provided courtesy of The Colorado Lawyer.

Tenth Circuit: Jury Instructions Sufficient to Apprise Jury of Elements of Crime

The Tenth Circuit Court of Appeals issued its opinion in United States v. Wright on Tuesday, February 21, 2017.

Bruce Carlton Wright was convicted on one count of conspiracy to commit bank fraud in violation of 18 U.S.C. §§ 1349 and 1344, and on eleven counts of bank fraud in violation of 18 U.S.C. § 1344. Wright was sentenced to thirty-three months imprisonment and ordered to pay restitution to the bank involved. Wright appealed, claiming the district court erred by: (1) not including intent to defraud as an element of conspiracy to commit bank fraud in the jury instruction; (2) responding to a written question from the jury by directing the jury to consider each count of the indictment separately; (3) denying Wright’s motion for new trial based on a Brady violation; (4) improperly calculating of the bank’s loss amount under USSG § 2B1.1(b)(1); and (5) improperly calculating of the restitution amount.

Because Wright did not properly object during his original trial in relation to his first, second, fourth, and fifth claims on appeal, the court reviewed them under the plain-error standard, which requires a plaintiff to establish an “error, that is plain, which affects substantial rights, and seriously effects the fairness, integrity, or public reputation of judicial proceedings.” The court stated that a plain error affects a defendant’s substantial rights if there is a reasonable probability that, if the error had not occurred, the result of the proceeding would have been different.

Concerning Wright’s first claim, that the court erred by not including the necessary element of intent to defraud to convict on a charge of conspiracy to commit bank fraud in the jury instruction, the court reviewed the jury instructions in light of the context of the entire trial to see if the instructions accurately stated the law and provided the jury with a correct understanding of the facts of the case. The court rejected this claim, saying that Wright could not show error because, while the court did not list intent to defraud in the instruction, the omission was cured because the instruction relating to committing bank fraud did incorporate “intent to defraud” by requiring an agreement to commit bank fraud.

During deliberations, the jury asked the judge if it they had to find Wright guilty on count 1 in order to convict him on any of the subsequent counts. Over objection of counsel, who agreed with the legal answer provided by the court but requested different phrasing, the judge responded, “No, you must consider each count separately.” On appeal, Wright contends that the answer should have been “Yes,” because, citing Pinkerton v. United States, the conviction would have been based on the acts of a co-conspirator and not his own acts (as his co-conspirator was testifying at his trial). The court stated that Wright had waived his ability to assert error under Pinkerton by failing to object on that basis at the district court level.  Instead, because Wright had generally objected to the instruction, the court reviews for plain error. However, because Wright argued under an abuse of discretion, and not plain error he waived his right to argue the claim.

In support for his motion for new trial, Wright argued that the government withheld a victim impact statement that the bank president had prepared for his coconspirator’s sentencing. Wright claimed that the information would have helped him to impeach his co-conspirator at his own trial. In their assessment of Wright’s motion, the court stated that Wright would have to show the prosecution suppressed material evidence that was favorable to Wright.  While the court determined the statement was not given to Wright prior to the trial, and that it was favorable to him, he failed in showing that the information included in the impact statement was material enough that it could have undermined confidence in the outcome of the case because Wright already attacked his co-conspirator’s credibility extensively at trial.

In calculating Wright’s sentence and amount of restitution he would be required to pay to the victims, the district court looked to the amount of Wright’s fraudulent draw requests, and determined he owed to be $1,094, 490. Wright was provided the sum in the presentencing report, which he accepted. Because the Bank recovered sums due to its sale, the sales price should be subtracted from the outstanding loan balance to calculate restitution to avoid a windfall to the victim. However, because the amount of restitution and sentence is a factual question, Wright was required to object at the district court level for it to rise to the level of a plain error reviewable on appeal. Wright accepted the amount in the pre-sentencing report, and the court held that Wright had accepted the calculation of restitution and his sentence as correct.

The Tenth Circuit Court of Appeals affirmed the district court’s rejection of Wright’s motion for new trial and rejected Wright’s other claims as to the amount and length of his sentence.

Tenth Circuit: Sexual Assault Victim’s Prior Mental Health History Not Even Marginally Relevant to Assault at Issue

The Tenth Circuit Court of Appeals issued its opinion in United States v. John on February 27, 2017.

Defendant and the victim were related. At trial, the victim testified to the following facts: The victim was in the shower when Defendant showed up at her house. He started undressing in front of the shower door while the victim was still in the shower. Defendant moved towards the victim and the victim struggled to get away. Defendant pulled the towel away from the victim and pushed her head toward his “private parts.” The victim was able to get away from Defendant and grabbed a blanket before running outside. When outside, the victim called the police. Officers arrived after Defendant had left. The officers found the shower door tilted and the bathroom trashcan turned over. No forensic testing occurred. Defendant was convicted on one count of attempted aggravated sexual abuse in Indian country and one count of abusive sexual contact in Indian county after a jury trial.

At trial, Defendant wanted to cross-examine the victim about an incident that occurred in Phoenix. The district court did not allow the line of questioning and the Defendant challenged the courts ruling on appeal claiming it violated his Confrontation Clause rights under the Sixth Amendment and his right to present a complete defense under the Fifth and Sixth Amendments.

The Tenth Circuit summarized the facts of the Phoenix incident that it obtained from police reports. The victim had visited her sister in Phoenix. She alleged that her sister pressured her to drink. After the two argued, the victim tried to cut her writs. She was then taken to the hospital where she was transferred to an inpatient behavioral-health unit after telling the staff that she had been having suicidal thoughts for two years. During intake, she denied using any illicit substances, even though she told emergency staff that she used marijuana. The intake staff determined she had a mood disorder, but she was discharged without any medication needed. The victim’s sister denied to police that she gave the victim alcohol or coerced her to drink. Because the police could not determine how the victim got the alcohol, they closed the case.

On appeal, the Defendant argued that the Phoenix incident showed that the victim would falsely accuse him of sexual assault given her poorly controlled behavior and drug use revealed by the incident. It also would show her propensity to lie and accuse family members. These facts could have led the jury to draw “vital inferences” in his favor.

The Tenth Circuit held that because the Defendant only argued at trial that the Phoenix incident would show that the victim had an impaired ability to perceive events, and not the reasons given on appeal, Defendant was precluded from arguing such reasons on appeal. In fact, the Tenth Circuit points to the fact that Defendant’s counsel rejected the possibility of using the Phoenix incident for the reasons stated on appeal, which the Tenth Circuit held was an “intentional relinquishment or abandonment of a known right.”

The Tenth Circuit held that Defendant’s Sixth Amendment right to confrontation was not violated because that right is not unlimited. The Supreme Court has held that trial judges retain wide latitude to impose reasonable limits on cross-examination based on concerns about harassment, prejudice, and confusion of the issues. The Tenth Circuit held that the Phoenix incident was not even marginally relevant to the victim’s ability to remember or relate the shower incident. It would not show that the victim was on drugs at the time of the shower incident. Therefore, the Tenth Circuit held that no lay person could draw those inferences.

Next, the Tenth Circuit addressed the Defendant’s challenges to three jury instructs concerning the assessment of evidence.

The first challenged instruction stated: “The testimony of the complaining witness need not be corroborated if the jury believes the complaining witness beyond a reasonable doubt.” Defendant argued that the instruction did no accurately reflect the government’s burden of proving each element of the charged offenses beyond a reasonable doubt. The Tenth Circuit held that the district court did not abuse its discretion by giving this instruction because it properly informed the jury that it could convict on the basis of the testimony of a single witness, only if they believed that witness. Further, another instruction told the jurors that they could not convict unless they found each element of each offense beyond reasonable doubt.

The second challenged instruction stated: “An attorney has the right to interview a witness for the purpose of learning what testimony the witness will give. The fact that a witness has talked to an attorney does not reflect adversely to the truth of such testimony.” Defendant argued that this instruction insulated from the jury’s scrutiny the cross-examination of the victim about being improperly influenced by the prosecutor. The Tenth Circuit held that the district court did not abuse its discretion by giving this instruction because it did not prevent defense counsel from making a commonsense suggestion that inappropriate coaching influenced the witness, which the counsel actually made.

The final challenged instruction stated: “You may infer, but you are certainly not required to infer, that a person intends the natural and probably consequences of acts knowingly done or knowingly omitted.” Defendant argues that this instruction was ambiguous, because it was not stated which element the instruction was meant to modify, and that it was confusing because it created uncertainty as to the requisite level of intent. The Tenth Circuit held that the district court did not abuse its discretion by issuing this instruction because the court made clear to the jury that the burden was on the government to prove the requisite intent beyond a reasonable doubt.

Finally, the Tenth Circuit held that the district court did not err in declining to instruct the jury that it could consider the lesser-included charge of simple assault, rather than just the charges of attempted aggravated sexual abuse and abusive sexual contact. The district court held that there was no evidence that the encounter was anything but sexual. The Tenth Circuit affirmed this decision holding that the jury could reasonably have found that the alleged incident did not occur, but that there was no reasonable grounds for believing that Defendant assaulted the victim but with no sexual intent.

The Tenth Circuit affirmed the district court’s judgment.

Colorado Court of Appeals: Previously Unresolved Issues Decided Against Defendant’s Position

The Colorado Court of Appeals issued its opinion in People v. Jacobson on Thursday, July 13, 2017.

Statutory DUI Affirmative Defense Instruction Not Given Sua Sponte—C.R.S. § 42-4-1301(2)(a)—Jury Instruction—Jury Questions—Invited Error.

In 2014 COA 149, the Colorado Court of Appeals reversed defendant’s conviction for failure to poll the jury about exposure to extraneous, prejudicial information. The Colorado Supreme Court reversed and remanded to the court of appeals. Before the supreme court’s mandate was issued, defendant requested that the court of appeals decide two unresolved issues, either of which could lead to reversal of the judgment of conviction entered on jury verdicts finding her guilty of vehicular homicide, driving under the influence (DUI), and other related charges arising from a collision between her truck and a taxi. The court of appeals granted the request.

Defendant first argued that the trial court erred in failing to sua sponte instruct the jury on the DUI affirmative defense of having consumed alcohol between the time she stopped driving and when her blood alcohol testing (BAC) occurred. Defendant testified at trial that she was sober when the accident occurred at about 10:30 a.m., but 15 minutes later, she drank a Vitamin Water bottle that contained one-half 99 proof schnapps. Defendant was contacted by two police officers at 10:58 a.m. She later failed a roadside sobriety test and was taken to a hospital for blood draws. The prosecution presented expert evidence that defendant’s BAC would have been .274 at the time of the accident. Defense counsel did not request the trial court to instruct the jury on the DUI affirmative defense of having consumed alcohol between the time she stopped driving and when the testing occurred.

It was undisputed that there was sufficient evidence to warrant an instruction on the affirmative defense. The prosecution argued that by proving that defendant was intoxicated at the time of the accident, it necessarily disproved the affirmative defense that defendant did not become intoxicated until a later time. As the supreme court stated in Montoya v. People, 2017 CO 40, a defense that operates solely by negating elements of the crime is disproved by the proving of those elements. Accordingly, the court found no error in the trial court’s failure to instruct the jury sua sponte on the affirmative defense.

Defendant then argued, for the first time, that a jury instruction and the court’s response to a related jury question reduced the prosecution’s burden. The instruction in question explained that “the amount of alcohol in the Defendant’s blood at the time of the commission of the offense, or within a reasonable time thereafter, as shown by chemical analysis of the Defendant’s blood or breath, gives rise to the following [listing of statutory presumptions].” During deliberations, the jury asked whether this was at or around 10:30 a.m. (the time of the accident) or at any time thereafter (on or around the time she was stopped by the police at 10:58 a.m.). Following discussion with counsel, the court answered that it could be either or both, but that any decision must be unanimous.

Defense counsel did not object to the instruction and participated in the formulation of the answer to the jury question. The Attorney General thus argued that defendant invited any error. The court declined to address the invited error argument because defendant did not argue there was an incorrect statement of the law. Defendant’s argument that the instruction encouraged conviction based on her intoxication “a reasonable time after” the accident is directly contradicted by another instruction that required the prosecution to prove that defendant had been intoxicated when the accident occurred. In addition, defendant did not show how the jury could have found her heavily intoxicated at 10:58 a.m. but not 28 minutes earlier. Defendant also did not produce evidence to contradict the prosecution’s expert that chugging alcohol at 10:45 a.m. would not explain the results of the three later blood draws, given how the body metabolizes alcohol. Finally, prior cases hold that 30 minutes after an accident is not “more than a reasonable time” afterward. Consequently, the court declined to reconsider whether the prosecution disproved the affirmative defense.

The court interpreted defendant’s last argument as raising a temporal discrepancy between the charging document and the references to “a reasonable time after” in the jury instruction and court’s response to the question. Based on the extensive colloquy on both the instruction and the court’s answer to the jury question, in which defense counsel actively participated, the court concluded any error was invited.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Obvious Instructional Error Did Not Fundamentally Undermine Defendant’s Rights

The Colorado Court of Appeals issued its opinion in People v. Hoggard on Thursday, June 29, 2017.

Custody—Child and Family Investigator—Second Degree Forgery—Attempt to Influence a Public Servant—Invited Error—Waiver—Constructive Amendment—Lesser Included Offense—Jury Instructions—Mens Rea.

During a child custody dispute, Hoggard forwarded to the court-appointed child and family investigator a chain of emails between her and her ex-husband. Hoggard allegedly falsified that email chain by adding five sentences that made it appear that her ex-husband had threatened her. As a result of that alleged falsification, Hoggard was convicted of second degree forgery and attempt to influence a public servant.

As an initial matter, the People argued that the doctrines of invited error and waiver preclude appellate review of Hoggard’s instructional error claims. Although Hoggard’s counsel approved the disputed jury instructions, it was an oversight, not a strategy, and therefore not invited error. Further, the failure to object to the jury instructions was not a waiver under the circumstances of this case.

Hoggard contended on appeal that the trial court constructively amended the second degree forgery charge by instructing the jury on the uncharged and more serious offense of felony forgery. Although the trial court’s forgery instruction was erroneous, instructing the jury on felony forgery was not a constructive amendment because Hoggard was both charged with and convicted of second degree forgery, a lesser included offense of felony forgery. Further, there is no reasonable likelihood that the instructional error affected the outcome of the trial.

Hoggard next argued that her conviction for attempt to influence a public servant must be reversed because the trial court did not instruct the jury on the required mens rea for each element of the offense, thereby violating her constitutional due process rights. Although the trial court’s instruction on the charge tracked the statute, it did not expressly require the jury to find that Hoggard acted with intent as to the third and fourth elements of the crime: that she intended to attempt to influence a public servant and that she intended to do so by means of deceit. Nor did the instruction set off the mens rea requirement as a separate element. Accordingly, the trial court’s instruction on attempt to influence a public servant was erroneous and the error was obvious at the time of trial. However, because there was no reasonable probability that the trial court’s instructional error contributed to Hoggard’s conviction, it was therefore not plain error.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Multiple Errors from Prosecutorial Overreach Did Not Influence Outcome of Trial

The Colorado Court of Appeals issued its opinion in People v. Howard-Walker on Thursday, June 15, 2017.

Batson Challenges—Peremptory Strikes—Jurors—Testimony—Expert Opinion—Lay Witness—Prosecutorial Misconduct—Jury Instructions—Cumulative Error Doctrine.

Defendant was charged with first degree burglary and conspiracy to commit first degree burglary. Among other evidence presented, his girlfriend and Detective Garcia testified at his trial. He was convicted as charged and sentenced.

On appeal, defendant contended that the trial court erred when it denied his challenges, under Batson v. Kentucky, to the prosecutor’s peremptory strikes excusing three prospective jurors—one who identified himself as African-American and two who identified themselves as Hispanic—asserting that the prosecutor’s “race-neutral” reasons for removing the jurors were not worthy of belief. One challenged juror was disinterested, the second juror had a negative experience with law enforcement and a belief that police officers sometimes misidentify suspects, and the third juror had previously faced criminal charges from the same district attorney’s office and had a negative view of law enforcement. Therefore, the trial court’s Batson findings are supported by the record.

Defendant next argued that the admission of several portions of Garcia’s testimony constituted reversible error: (1) Garcia was not admitted as an expert witness, but gave opinions regarding whether the gun depicted in the video surveillance was real. Although this was improper, it did not constitute plain error. (2) Garcia testified about the manner in which the gun was being used. Any error in admitting this testimony was harmless. (3) It was not error for Garcia to identify defendant. No specialized knowledge is necessary to recognize an individual in a video and this evidence was probative of a material fact. (4) Garcia testified regarding probable cause, which was not relevant; however, this was not plain error. (5) Garcia testified but had no personal information about the reasons why defendant’s girlfriend was crying during the police interview. This testimony was not obviously improper and did not undermine the fairness of the trial. (6) Garcia opined about defendant’s statement regarding another perpetrator. Even if this was improper, it did not undermine the fundamental fairness of the trial. (7) Garcia opined about the truthfulness of defendant’s statements to police. Though this testimony was improper, it does not rise to the level of plain error because there was other sufficient evidence to support his conviction.

Defendant next asserted that the prosecutor engaged in reversible misconduct. Although the prosecutor stepped over the line when he repeatedly suggested that the girlfriend was committing perjury, the prosecutor did not threaten or coerce her, and any misconduct was not reversible. The prosecutor also commented on the girlfriend’s truthfulness. The evidence supported a reasonable inference that her testimony was false, and thus these comments were proper. Finally, although the court did not condone the prosecutor’s comment on defendant’s decision not to testify, the comment did not amount to plain error.

Defendant further argued that the trial court erred when it failed to instruct the jury on the predicate crime of theft and when it failed to define the word “intent.” While the jury instructions were deficient, (1) the record demonstrates that the specification of the underlying crime was not a controverted element of the burglary offense; therefore, the court’s failure to instruct the jury on theft was not plain error, and (2) under the circumstances of this case, the court’s failure to define the culpable mental state similarly did not constitute plain error.

Finally, defendant argued that the cumulative effect of the trial court’s errors and prosecutorial misconduct violated his right to a fair trial. The errors were relatively small events occurring over a two-day trial during which substantial evidence was presented. Defendant received a fair trial in spite of the identified errors.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: No Reasonable Probability that Failure to Instruct Jury on Recklessness Contributed to Conviction

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

Jury Instructions—Lesser Included Offenses—Harmless Error.

The People sought review of the court of appeals’ judgment reversing Roman’s conviction for first degree assault. The trial court instructed the jury on the lesser included offense of second degree assault committed by intentionally causing bodily injury with a deadly weapon, but it denied Roman’s request for an additional lesser-included-offense instruction on second degree assault committed by recklessly causing serious bodily injury with a deadly weapon. The court of appeals reversed, concluding both that the trial court erred in denying Roman’s requested additional lesser-included-offense instruction and that the error was not harmless.

The supreme court reversed the judgment of the court of appeals. In light of the evidence presented at trial and the instructions actually provided to the jury, there was no reasonable possibility that the failure to instruct on reckless second degree assault contributed to defendant’s conviction of first degree assault. Any error in that regard would therefore have been harmless.

Summary provided courtesy of The Colorado Lawyer.

Tenth Circuit: No Sixth Amendment Violation where Court Disallowed Questioning Regarding Victim’s Mental Health

The Tenth Circuit Court of Appeals issued its opinion in United States v. John on February 27, 2017.

Defendant and the victim were related. At trial, the victim testified to the following facts: The victim was in the shower when Defendant showed up at her house. He started undressing in front of the shower door while the victim was still in the shower. Defendant moved towards the victim and the victim struggled to get away. Defendant pulled the towel away from the victim and pushed her head toward his “private parts.” The victim was able to get away from Defendant and grabbed a blanket before running outside. When outside, the victim called the police. Officers arrived after Defendant had left. The officers found the shower door tilted and the bathroom trashcan turned over. No forensic testing occurred. Defendant was convicted after a jury trial of one count of attempted aggravated sexual abuse in Indian country and one count of abusive sexual contact in Indian county.

At trial, Defendant wanted to cross-examine the victim about an incident that occurred in Phoenix. The district court did not allow the line of questioning and the Defendant challenged the courts ruling on appeal claiming it violated his Confrontation Clause rights under the Sixth Amendment and his right to present a complete defense under the Fifth and Sixth Amendments.

The Tenth Circuit summarized the facts of the Phoenix incident that it obtained from police reports. The victim had visited her sister in Phoenix. She alleged that her sister pressured her to drink. After the two argued, the victim tried to cut her writs. She was then taken to the hospital where she was transferred to an inpatient behavioral-health unit after telling the staff that she had been having suicidal thoughts for two years. During intake, she denied using any illicit substances, even though she told emergency staff that she used marijuana. The intake staff determined she had a mood disorder, but she was discharged without any medication needed. The victim’s sister denied to police that she gave the victim alcohol or coerced her to drink. Because the police could not determine how the victim got the alcohol, they closed the case.

On appeal, the Defendant argued that the Phoenix incident showed that the victim would falsely accuse him of sexual assault given her poorly controlled behavior and drug use revealed by the incident. It also would show her propensity to lie and accuse family members. These facts could have led the jury to draw “vital inferences” in his favor.

The Tenth Circuit held that because the Defendant only argued at trial that the Phoenix incident would show that the victim had an impaired ability to perceive events, and not the reasons given on appeal, Defendant was precluded from arguing such reasons on appeal. In fact, the Tenth Circuit points to the fact that Defendant’s counsel rejected the possibility of using the Phoenix incident for the reasons stated on appeal, which the Tenth Circuit held was an “intentional relinquishment or abandonment of a known right.”

The Tenth Circuit held that Defendant’s Sixth Amendment right to confrontation was not violated because that right is not unlimited. The Supreme Court has held that trial judges retain wide latitude to impose reasonable limits on cross-examination based on concerns about harassment, prejudice, and confusion of the issues. The Tenth Circuit held that the Phoenix incident was not even marginally relevant to the victim’s ability to remember or relate the shower incident. It would not show that the victim was on drugs at the time of the shower incident. Therefore, the Tenth Circuit held that no lay person could draw those inferences.

Next, the Tenth Circuit addressed the Defendant’s challenges to three jury instructs concerning the assessment of evidence.

The first challenged instruction stated: “The testimony of the complaining witness need not be corroborated if the jury believes the complaining witness beyond a reasonable doubt.” Defendant argued that the instruction did no accurately reflect the government’s burden of proving each element of the charged offenses beyond a reasonable doubt. The Tenth Circuit held that the district court did not abuse its discretion by giving this instruction because it properly informed the jury that it could convict on the basis of the testimony of a single witness, only if they believed that witness. Further, another instruction told the jurors that they could not convict unless they found each element of each offense beyond reasonable doubt.

The second challenged instruction stated: “ An attorney has the right to interview a witness for the purpose of learning what testimony the witness will give. The fact that a witness has talked to an attorney does not reflect adversely to the truth of such testimony.” Defendant argued that this instruction insulated from the jury’s scrutiny the cross-examination of the victim about being improperly influenced by the prosecutor. The Tenth Circuit held that the district court did not abuse its discretion by giving this instruction because it did not prevent defense counsel from making a commonsense suggestion that inappropriate coaching influenced the witness, which the counsel actually made.

The final challenged instruction stated: “You may infer, but you are certainly not required to infer, that a person intends the natural and probably consequences of acts knowingly done or knowingly omitted.” Defendant argues that this instruction was ambiguous, because it was not stated which element the instruction was meant to modify, and that it was confusing because it created uncertainty as to the requisite level of intent. The Tenth Circuit held that the district court did not abuse its discretion by issuing this instruction because the court made clear to the jury that the burden was on the government to prove the requisite intent beyond a reasonable doubt.

Finally, the Tenth Circuit held that the district court did not err in declining to instruct the jury that it could consider the lesser-included charge of simple assault, rather than just the charges of attempted aggravated sexual abuse and abusive sexual contact. The district court held that there was no evidence that the encounter was anything but sexual. The Tent Circuit affirmed this decision holding that the jury could reasonably have found that the alleged incident did not occur, but that there was no reasonable grounds for believing that Defendant assaulted the victim but with no sexual intent.

The Tenth Circuit affirmed the district court’s judgment.

Colorado Supreme Court: Trial Court Properly Denied Request for Lesser-Included-Offense Instruction where Lesser Offense Not Included

The Colorado Supreme Court issued its opinion in People v. Rock on Monday, June 5, 2017.

Jury Instructions—Lesser Offenses.

The People sought review of the court of appeals’ judgment reversing Rock’s convictions for second-degree burglary and theft. See People v. Rock, No. 11CA1936 (Colo. App. July 3, 2014). 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 court of appeals reversed, concluding that in denying Rock’s request, the trial court erred and that the error was not harmless with regard to either of Rock’s convictions. The supreme court reversed the judgment of the court of appeals because second-degree criminal trespass is not a lesser included offense of second-degree burglary under the strict elements test, as clarified in Reyna-Abarca v. People, 2017 CO 15, 390 23 P.3d 816.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Trial Court’s Repeated Admonitions to Jury about News Reports Presumably Heeded

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

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

In this case, a companion to People v. Jacobson, 2017 CO 28, the Supreme Court determined whether a trial court abused its discretion by refusing to poll the jury about whether jurors had seen a news report about the case that had been posted online and ran in a local newspaper. Here, the trial court gave repeated admonitions not to seek out news about the case, including just before the newspaper released the story. Thus, the trial court did not abuse its discretion by refusing to poll the jury. Therefore, the Supreme Court reversed the Court of Appeals’ judgment and affirmed defendant’s conviction.

Summary provided courtesy of The Colorado Lawyer.