December 18, 2017

Colorado Court of Appeals: Statutory Limitations Period Began when Broker Knew of Contractual Breach

The Colorado Court of Appeals issued its opinion in International Network, LLC v. Woodard on April 6, 2017.

Breach of Contract—Exclusive Right-to-Sell Listing—Statute of Limitations—Jury Instructions.

Woodard (seller) owned a 100-acre ranch. In 2006 he signed an exclusive right-to-sell listing agreement with International Network, Inc. (broker). The agreement was for a six-month listing period and provided for a percentage commission to be paid to broker upon sale. Seller had the absolute right to cancel the agreement at any time upon written notice.

Approximately four months into the listing period, seller began negotiating with an attorney who represented a group of potential buyers. Seller did not disclose his negotiations to broker. About a month after commencing these discussions, seller abruptly cancelled the listing agreement without cause. Broker ceased marketing the property. After the listing period had expired, but within the 90-day holdover period set forth in the agreement, seller and the buyers finalized an agreement resulting in the sale of the property.

Seven years later, broker initiated this action against seller for breach of contract based on seller’s failure to comply with the referral provision, which required seller to conduct all negotiations for the sale of the property through broker and refer to broker all communications received from prospective buyers. Following trial, a jury found in favor of broker and awarded damages in the amount of the commission that would have been owed under the listing agreement.

On appeal, seller argued that the trial court erred in denying his motion for directed verdict and his post-trial motion for judgment notwithstanding the verdict because broker’s breach of contract claim was barred by the statute of limitations. C.R.S. § 13-80-101(1)(a) states that a breach of contract claim must be commenced within three years after accrual of the cause of action, and accrual occurs when the breach is discovered or should have been discovered. It was undisputed that seller breached the referral provision in 2006. Seller argued that under the facts, broker should have realized there might have been a breach of the referral provision and through the exercise of reasonable diligence should have discovered it in 2006. Broker asserted it had no knowledge of seller’s duplicity until broker’s agent heard seller’s testimony in another lawsuit in 2011 in which seller testified he had violated the listing agreement and intentionally concealed his negotiations to avoid paying a commission. Therefore, in commencing this action in 2013 broker was within three years of its discovery of the breach. Based on the record, the Colorado Court of Appeals could not conclude that the evidence, viewed in the light most favorable to broker, compelled a different result.

Seller also argued that it was error to not give a jury instruction on the elements of liability for recovery on a real estate commission claim, contending that the broker was not the procuring cause of the sale. Here, seller breached the referral provision and cannot use his intentional concealment of his negotiations to prevent broker from obtaining damages in the form of a commission. The court did not err in rejecting seller’s procuring cause instruction.

Seller contended the trial court erred by rejecting seller’s proposed jury instruction on the affirmative defense of laches. The trial court ruled, and the Court agreed, that seller’s improper conduct precluded his assertion of a laches defense.

Seller further argued that the court erred in denying him the right to impeach broker’s agent with certain evidence. The court precluded seller’s questioning due to lack of a sufficient foundation and acted within its discretion in limiting seller’s cross-examination.

Broker requested attorney fees and costs in accordance with the agreement, which the court awarded.

The judgment was affirmed and the case was remanded for further proceedings to award broker’s costs and attorney fees incurred on appeal.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Jury Need Not Find Defendant Committed Particular Overt Act in Furtherance of Conspiracy

The Colorado Court of Appeals issued its opinion in People v. Davis on Thursday, April 6, 2017.

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

After an investigation that entailed wiretapping, the People charged defendant 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.

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 or not giving the jury a special, modified unanimity instruction regarding the overt act. 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 (one that tells the jury that it must agree unanimously as to the act proving each element) need not be given. A defendant can participate in a number of crimes or events to accomplish a single conspiracy. The Colorado Supreme Court has indicated that the following factors tend to show a single criminal episode: the alleged acts occurred during the same period, the type of overt act alleged is the same, the unlawful objective of the conspiracy is the same, and the same evidence would be relevant to the charges. 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. 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 the jury a limiting instruction. However, 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.

Defendant further contended that his rights to jury trial and due process were violated when the judge, instead of the jury, found that he had been convicted of prior felonies. The Colorado Supreme Court has held that the fact of a prior conviction is expressly excepted from the jury trial requirement for aggravated sentencing.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Instruction Should Be Given When Evidence Defendant Acted in Self-Defense

The Colorado Court of Appeals issued its opinion in People v. Newell on Thursday, March 9, 2017.

John Robert Newell lived with his girlfriend, Chantel McDowell, and his cousin, Eric Albert, who had been staying with them for a couple of weeks. One night, Albert and Newell had an altercation in which Newell cut Albert’s back with a straight-edged barber’s razor. Newell had a cut under his right eye. Newell was charged with second degree assault and a violent crime sentence enhancer.

The only witnesses to the assault were Newell, Albert, and McDowell, and only Albert and McDowell testified at trial. McDowell testified that she had taken sleeping pills and was asleep when the fight started, but she awoke to yelling. When she came out of the bedroom, she saw Newell with the razor and Albert with a pair of scissors. Albert testified inconsistently about the fight.

Newell repeatedly requested a self-defense jury instruction. The prosecution countered Newell was not entitled to a self-defense instruction because he had not presented a scintilla of evidence showing he was not the initial aggressor, and the trial court agreed, denying the instruction. Newell was convicted of a class 6 felony and sentenced to three years in the custody of the Department of Corrections.

On appeal, Newell argued the court erred in denying him a self-defense jury instruction. The court of appeals agreed. The court found that “If there is any evidence in the record to support the theory that a defendant acted in self-defense, the defendant is entitled to an instruction, and a court’s refusal to give one deprives the accused of his or her constitutional right to a trial by a jury.” The court found that defendant could use any evidence that tended to show he acted in self-defense, including evidence advanced by the prosecution. In this case, the court noted there was ample evidence that defendant acted in self-defense, and it was error for the trial court to deny his request for a jury instruction.

The court also addressed Newell’s second contention to the extent the issue would arise again on remand. Newell argued the court erred in prohibiting him from admitting evidence of Albert’s prior felony conviction. The court instructed that determining whether the remoteness of the prior conviction rendered it inapplicable was within the sound discretion of the trial court.

Newell’s sentence and conviction were vacated and the case was remanded.

Colorado Model Criminal Jury Instructions Committee Released 2017 Update Report

On Tuesday, January 31, 2017, the Colorado Supreme Court Model Criminal Jury Instructions Committee released its 2017 update report. The report details updates to the Model Criminal Jury Instructions for 2017, including those based on changes in case law from the U.S. Supreme Court, the Colorado Supreme Court, and the Colorado Court of Appeals. There were also changes to instructions based on non-final court of appeals decisions for which certiorari petitions are pending.

The Model Criminal Jury Instructions Committee advised in its update that although the committee intends to keep the jury instructions current by providing annual updates, the updates are not fully vetted by the committee and therefore will not necessarily be included in the official jury instructions. The committee further advised, “The Reporter’s summaries are purely descriptive; they do not include recommendations for how (or whether) to draft jury instructions based on the authorities that are summarized.”

For the full text of the committee’s 2017 update, click here. For the Colorado Jury Instructions for Criminal Trials, click here.

Colorado Court of Appeals: “Fruit of the Poisonous Tree” Doctrine Did Not Apply to Statements

The Colorado Court of Appeals issued its opinion in People v. Archuleta on Thursday, January 26, 2017.

On December 5, 2012, Roger Louis Archuleta and his roommate in the housing facility left Archuleta’s apartment around 7 a.m., as captured by surveillance video. The roommate returned home around noon, and Archuleta returned later, remaining home the rest of the night. That night, other residents of the housing facility reported hearing loud noises. Around 4 a.m. on December 6, the surveillance video showed Archuleta dragging his roommate’s body down the hall, then back to his room. Archuleta then informed a residential aide at the housing facility that he had a body in his apartment that needed to be removed.

When the police arrived at defendant’s apartment, they found the deceased victim lying just inside the door, covered by a blanket. The police observed the victim had blood on him and appeared to have been beaten. They also found defendant seated on a mattress in the living room, apparently highly intoxicated and with a substantial amount of dried blood on his face and hands. There was blood spattered on all four walls in the apartment bedroom, which the prosecution’s expert testified was consistent with an altercation between two people.

The police took defendant to the police station; advised him of his Miranda rights under and interviewed him. They also took pictures of him, collected his clothing, and took swabs of suspected blood. Defendant ended the interview at the police station by indicating he wanted to speak to an attorney. Without obtaining a court order or defendant’s consent, police took defendant to the hospital, where three samples of his blood were drawn at one hour intervals. The court later held that the blood draw was unconstitutional; that holding was not challenged on appeal. Defendant was charged with second degree murder and first degree assault, and the jury found him guilty as charged.

Defendant appealed, arguing his convictions must be reversed because under the fruit of the poisonous tree doctrine, the trial court erred by failing to suppress statements he made in the course of his transport to and detention at the hospital for his blood draws, and also because there were errors in the jury instructions and the trial court improperly elicited and admitted testimony from the prosecution’s blood spatter analysis expert that his conclusions were independently verified. The court of appeals addressed the fruit of the poisonous tree doctrine argument first.

The court found no error in the trial court’s admission of defendant’s statements to police officers while at the hospital and in transit. Defendant had made numerous rambling statements to the police while at the hospital, including several comments that seemed to relate to the victim’s death. At one point, the officer left but a recorder was left on in the room. Defendant was heard saying, “Shit. [Victim’s name]. You’re dead, you’re dead brother. I killed you.” The trial court held that the fruit of the poisonous tree was the result of the blood draw, not the statements. The court noted that it was entirely speculative whether defendant would have continued to make statements while at the police station, and the vast majority of his statements were spontaneous. The court of appeals agreed, noting that the exclusionary rule was properly applied to the blood draw results, and that the statements were not fruit of the poisonous tree. The court found that defendant failed to establish a causal connection between the illegality of the warrantless blood draws and the challenged statements.

Defendant also contended the jury instruction defining “cause” misstated the law because it instructed the jury that the victim’s preexisting physical condition was not a defense to the murder and assault charges. He argues that while a victim’s preexisting conditions generally do not impact the causation element, they are relevant to the culpable mental state. The court of appeals disagreed. The court held that because the trial court’s instruction that “it is no defense that the victim was suffering from preexisting physical ailments, illnesses, injuries, conditions or infirmities” was not a stand-alone instruction but rather was embedded into the definition of “cause,” there was no error. The court noted that it is no defense that a victim who had been in good physical condition would have survived an attack; a defendant cannot be excused from guilt and punishment because his victim was weak and could not survive the torture he administered. The court rejected defendant’s contention that the instruction misstated the law.

The defendant also asserted that the trial court plainly erred by giving an erroneous elemental instruction for first degree assault and admitting hearsay testimony from the prosecution’s blood spatter analysis expert. The court of appeals again disagreed, finding that the instruction tracked the statutory language and was therefore sufficient, and the blood spatter analyst’s testimony that someone else always reviews his work was a general statement that did not rise to the level of plain error.

The court of appeals affirmed defendant’s convictions.

Colorado Court of Appeals: “Knowingly” Element Should Have Been Offset but Error Harmless

The Colorado Court of Appeals issued its opinion in People v. Garcia on Thursday, January 12, 2017.

Juvenal Onel Garcia was married to the victim, but in August 2010 a protective order issued against Garcia concerning the victim. However, on occasion in April 2012, he would go to the victim’s house to watch their children at her request. One night, he was late, and when he arrived the victim told him to leave because he had been drinking. He took her car keys and left. The victim eventually reported her car stolen after he did not return. When he came back, they physically struggled. According to the victim, Garcia then tried to take her clothes off and force intercourse, but she fought him off and he immediately masturbated. They resumed struggling, he prevented her from calling 911, and he left, again taking her car. The victim called police and was taken to the hospital.

Garcia was charged with first degree burglary, attempted sexual assault, unlawful sexual contact, third degree assault, violation of a protection order, and obstruction of telephone service, as well as attempted sexual assault and unlawful sexual contact. He was designated a sexually violent predator (SVP). Garcia appealed, arguing first that the trial court erred in not applying “knowingly” to every element of the offense of sexual assault, including the “caused submission” element. The court of appeals found no error. The jury instruction in this case was based on the model jury instruction then in effect, and although the model jury instruction was later amended to offset the word “knowingly,” the court concluded any error in the failure to offset “knowingly” was not obvious. The court of appeals found the trial court did not commit plain error and affirmed.

Garcia next contended his sentences for class 4 attempted sexual assault and class 4 unlawful sexual contact should be vacated because the jury was not instructed and therefore did not find that Garcia knowingly used force or submission, so elevation of the offenses to a higher class of felony was not warranted. After evaluating the instructions under a plain error standard, the court of appeals found none. The court found that a published opinion directly addressed and refuted Garcia’s contention, so there was no error in the trial court’s instructions.

Garcia also argued that the trial court erred in its interrogatory on force related to sexual assault because the trial court did not define “force,” “threat,” or “intimidation,” which are narrower in the legislative context than in ordinary use. The court of appeals again rejected his argument. The court again looked to prior case law that had addressed the issue, and affirmed Garcia’s convictions and sentences.

Garcia argued that the mens rea element for violation of a protection order was not proved. The court of appeals disagreed, finding there was plenty of evidence to show that Garcia knew the protective order was still in place and he was not supposed to contact the victim. The court affirmed this sentence and conviction also.

Finally, Garcia contended the trial court erred in designating him a sexually violent predator (SVP) because he neither established nor promoted his relationship with the victim for purposes of sexual victimization, as required by the statute. The court evaluated two supreme court cases that had not been decided at the time of Garcia’s conviction and remanded for reconsideration in light of the two cases.

Garcia’s sentences and convictions were affirmed, and the court of appeals remanded for consideration of the SVP designation in light of new precedent.

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

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

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

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

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

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

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

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

Colorado Court of Appeals: Prosecutor “Channeling” Victim in Opening Statement was Error but Not Plain

The Colorado Court of Appeals issued its opinion in People v. Manyik on Thursday, March 24, 2016.

Prosecutorial Misconduct—Amended Information—Crim.P. 7(e)—Jury Instruction—Mistaken Belief—Hearsay.

Adams was romantically involved with Manyik and lived in his house. Adams remained in contact and continued to socialize with the victim, with whom she previously had been in a relationship. Adams invited the victim to Manyik’s house and told victim that Manyik was out of town on a hunting trip. When the victim arrived, Manyik shot and killed him.

Manyik was convicted of second-degree murder, aggravated robbery, and tampering with physical evidence.

Manyik raised five arguments on appeal. First, he argued that the prosecutor’s “channeling” (a technique by which a lawyer speaks to the jury in the first person as though he is the injured or deceased person) constituted prosecutorial misconduct and required reversal of his convictions. Although the prosecutor’s opening statement was impermissible, under the limited circumstances of this case it was not plain error and did not require reversal of Manyik’s convictions.

Second, Manyik argued that the trial court erred in allowing the prosecution to amend the aggravated robbery charge during trial. Because the amended information charged a different offense and subjected Manyik to mandatory sentencing for a crime of violence, while the original charge did not, Crim.P. 7(e) precluded the amendment. Manyik’s conviction for aggravated robbery was reversed and the case was remanded for a new trial on that charge.

Third, Manyik argued that the court erred in rejecting his tendered jury instruction about evaluating statements he made to police officers. The tendered instruction emphasized only selective evidence that was favorable to Manyik and thus was improper. The trial court did not err in rejecting Manyik’s proposed jury instruction on this issue.

Fourth, Manyik contended that the court’s jury instruction on the defense of mistaken belief of fact was incorrect. The language of the instruction given was almost identical to that in the relevant statute, CRS § 18-1- 504(1)(c). Additionally, defense counsel’s argument about Manyik’s mistaken belief made the jury aware of his mistake of fact defense. Therefore, the given instruction was proper.

Lastly, Manyik argued that the court erred in excluding evidence of recorded statements he made during telephone conversations with family members when he was at the police station. Because the statements contained impermissible hearsay, the court did not err in excluding them.

The judgment was affirmed in part and reversed in part, and the case was remanded with directions.

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

Colorado Supreme Court: Felony Murder Instruction Adequately Apprised Jury of Elements of Kidnapping

The Colorado Supreme Court issued its opinion in Esquivel-Castillo v. People on Monday, January 25, 2016.

Sufficiency of an Information—Notice of Charges—Felony Murder.

Esquivel-Castillo petitioned for review of the judgment of the court of appeals affirming his conviction of felony murder. A jury acquitted him of a separate count of kidnapping, charged according to the “seized and carried” alternative way of committing that crime, but convicted him of felony murder for a death caused during his commission or attempted commission of kidnapping the same victim, during the same charged timeframe, by a different statutorily qualifying act of kidnapping. As pertinent to the issue on review in the Supreme Court, the court of appeals rejected Esquivel-Castillo’s assertion that the more specific kidnapping charge necessarily limited the scope of the more generally charged felony murder count to a charge of death caused in the course of or in furtherance of the commission of kidnapping by seizing and carrying the victim from one place to another, resulting in his having been convicted of a crime with which he had never been charged.

The Supreme Court affirmed the judgment of the court of appeals. Because one count of an information is not circumscribed by another count of that information unless the latter is incorporated in the former by clear and specific reference, the Court determined that the crime of kidnapping alleged more generally as an element of felony murder was not limited to the specific alternative act of kidnapping alleged in the separate kidnapping count. Therefore, jury instructions as to all statutory forms of kidnapping supported by the evidence did not constructively amend the felony murder charge.

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

Tenth Circuit: Juror Questionnaire, Taken in Isolation, Not Enough to Show Impermissible Bias

The Tenth Circuit Court of Appeals issued its opinion in Eizember v. Trammell on Tuesday, September 10, 2015.

When he was released from the Tulsa jail, Scott Eizember went to his ex-girlfriend’s house to exact revenge since she had alerted authorities about his violation of a protective order. He broke into a house across the street and found a shotgun. When the Cantrells, an elderly couple who lived in the house, returned home, Eizember engaged in an altercation with Mr. Cantrell where he tried to wrestle the gun from Eizember. A shot was fired during the altercation that killed Mrs. Cantrell. Eizember wrestled the gun away from Mr. Cantrell and beat him with the gun until he lost consciousness, and eventually died. Next, he headed across the street and shot Tyler Montgomery, his ex-girlfriend’s son, and beat Mr. Montgomery’s grandmother. Mr. Montgomery ran to his pickup truck to drive away but Eizember jumped into the bed of the truck. Mr. Montgomery eventually crashed the truck and ran away for help. Eizember ran the other direction and hitched a ride, but eventually shot at the other driver too.

For the next 11 days, he hid in the woods, emerging only to steal clothes and a pistol from a nearby house. He soon stole a car from outside a church and made his way out of town. When the car ran out of gas, he continued hitchhiking, and was offered a ride by Dr. Sam Peebles and his wife, whom he ordered at gunpoint to drive him to Texas. After hours in the car, Dr. Peebles was able to shoot Eizember with his own gun. Eizember wrestled the revolver away from Dr. Peebles and bludgeoned him with it, also hitting Mrs. Peebles in the head when the revolver wouldn’t fire at her. At a nearby convenience store, a clerk saw Eizember was shot and called the police. Eizember was arrested and taken to the hospital, then jail.

Eizember was eventually convicted of first-degree murder for Mr. Cantrell’s death, second-degree felony murder for Mrs. Cantrell’s death, assault and battery with a dangerous weapon for beating Montgomery’s grandmother, shooting with intent to kill for Mr. Montgomery, and first-degree burglary for breaking into the Cantrells’ home. He unsuccessfully appealed to the Oklahoma Court of Criminal Appeals (OCCA) and the U.S. Supreme Court denied certiorari. The OCCA also denied his petition for post-conviction relief, as did a federal district court, but the district court granted Eizember a Certificate of Appealability on several issues.

On appeal, Eizember argued that two jurors, D.B. and J.S., should have been excluded because they were impermissibly biased in favor of the death penalty. The Tenth Circuit, noting that both the OCCA and the federal district court rejected this claim, disagreed with Eizember. The Tenth Circuit applied a Witt standard and agreed with the OCCA that, when considered in context, D.B.’s answers did not show impermissible bias. Although the questionnaire answers pointed out by Eizember tended to show bias toward the death penalty, D.B.’s answers during voir dire showed that she could fairly consider all sentencing options. The Tenth Circuit held that the trial court did not clearly err by retaining D.B. as a juror. As for J.S., his answers tended to show less bias than D.B.’s answers, so the Tenth Circuit found no error in the trial court’s refusal to dismiss him. The dissent suggested that the OCCA did not apply the Witt standard at all in rejecting Eizember’s arguments against retaining D.B. and J.S. on the jury, therefore relying on an incorrect legal standard and necessarily mandating reversal, but the majority did not agree.

Eizember next argued that the jury was confused about the meaning of life with the possibility of parole as a sentencing option due to a prospective juror’s erroneous comment during voir dire. The Tenth Circuit disagreed, finding that the parties agreed the jurors were properly instructed on the meaning of life with the possibility of parole as a sentencing option. Eizember argued that his sentences should be vacated due to the jury’s confusion, but the Tenth Circuit again disagreed, finding that even if there had been error vacating the sentences was not the proper remedy.

Next, Eizember argued that the jury was improperly instructed on the elements of second-degree “depraved mind” murder, and the prosecution agreed. Eizember contended that because of the improper instruction, he was deprived of his federal due process rights to have the jury instructed on a non-capital alternative offense. The Tenth Circuit again disagreed, finding that although the instruction incorrectly advised the jury of the non-capital offense of “depraved mind” murder, the jury was properly instructed on felony murder, which is a non-capital offense. Eizember argued that the jury would not have been able to convict him of felony murder, but the Tenth Circuit rejected this argument as well, noting that Eizember requested the felony murder instruction. Eizember next argued that his attorney’s failure to object to the incorrect “depraved mind” instruction constituted ineffective assistance of counsel. The OCCA found that the incorrect instruction had no impact on Eizember’s rights, because it is unavailable under state law when a jury finds a killing intentional beyond a reasonable doubt, as it did in Eizember’s case.

The judgment of the district court was affirmed. Chief Judge Briscoe wrote a detailed dissent regarding D.B.’s bias in favor of the death penalty.

Tenth Circuit: Instruction Advising on Knowing and Dishonest Conduct Correctly Stated Mens Rea

The Tenth Circuit Court of Appeals issued its opinion in United States v. Sorensen on Monday, September 14, 2015.

Jerold Sorensen, an oral surgeon in California, found Financial Fortress Associates (FFA) in 2000 after an online search to develop a business plan for his dental practice. FFA offered seminars advising attendees to develop “pure trust organizations” (PTOs) in order to reduce or eliminate tax liabilities. Sorensen developed six PTOs with the help of Melissa Sugar, an attorney who spoke at the first FFA seminar Sorensen attended and opened a bank account titled “Northside Management,” which was titled in the trusts’ names. Sugar was the trustee of the trusts but Sorensen had full account privileges because he was named as Sugar’s “administrative assistant” for the trust. Sorensen retained full control over the Northside Management account. Sorensen retitled his personal residence, dental practice, and dental equipment into the trust, then had his dental practice pay the trust to “rent” his home, dental practice, and dental equipment. He deposited dental income directly into the trust and reported the rental expenses as business expenses, thereby avoiding taxes. No tax return was ever filed for the trusts, which were active from 2002 through 2008.

Soon after establishing the trusts, Sorensen approached his longtime accountant and family friend about the FFA pure trust program. Sharp researched the program and advised Sorensen that the IRS considered it a scheme, and that she could no longer provide tax services to Sorensen if he continued with the PTOs. Sorensen hired a new accountant, Wayne Paul, who was recommended by FFA, to prepare his business returns, and had his personal returns prepared by H&R Block. He never informed H&R Block about the trusts or the Northside Management account, which he explained was because they never asked.

In May 2007, an IRS special agent executed a search warrant at Sugar’s law office. By August of that year, Sorensen knew of the search but did not stop using the trust or Northside account. Sorensen later told IRS Special Agent Michelle Hagemann that although he thought he should stop using the FFA services, “he was in too deep, he couldn’t get out, and he didn’t want to pay the tax.” Also in 2007, Sorensen approached his son’s father-in-law, CPA Keith Wilcox, about the trusts. Wilcox testified that he told Sorensen the trusts were a complete sham. Wilcox prepared amended tax returns for Sorensen, but Sorensen did not file them for two more years.

Agent Hagemann sent Sorensen a certified letter in 2008 to advise him he was the subject of a criminal investigation. Sorensen refused the letter, following advice received at an FFA seminar. Later, when Agent Hagemann appeared at Sorensen’s dental offices, Sorensen refused to let her in, again following FFA advice, and sent her a public servant’s questionnaire requesting information such as her birthdate, home address, and social security number.

Sorensen’s defense theory was that he believed PTOs were completely legal. However, he admitted at trial that the payments made to the PTOs were not legitimate business deductions, and he also admitted that he underpaid his taxes by more than $1.5 million from 2002 through 2007. In November 2013, a Colorado federal grand jury indicted Sorensen, charging him with violating 26 U.S.C. § 7212(a) by corruptly endeavoring to impede administration of Internal Revenue laws.

The primary issue at trial was whether the statute required knowledge of illegality and whether Sorensen acted with such knowledge. The defense argued that Sorensen was a gullible, naive man who was unaware his conduct violated the law. Dr. Dana Cogan, a forensic psychiatrist, testified on Sorensen’s behalf that he was “law abiding” and “very naive.” Nevertheless, in 2014, the jury convicted Sorensen of corruptly endeavoring to obstruct or impede the due administration of internal revenue laws in violation of § 7212(a)’s omnibus clause. The district judge varied downward from the guidelines range and statutory maximum and sentenced Sorensen to 18 months’ imprisonment. Sorensen appealed, raising seven issues, which the Tenth Circuit addressed in turn.

Sorensen first contended that his conduct should have been charged under 26 U.S.C. §§ 7201 and 7203 because it amounted to evading taxes, and that § 7212 requires something more than tax evasion. The Tenth Circuit first noted that the government may choose what conduct to charge when the underlying conduct satisfies requirements of more than one charging statute. Because § 7212 requires that the tax evasion be done corruptly instead of willfully, the two sections address different conduct. Willfully evading taxes is the more serious crime. The Tenth Circuit noted that Sorensen used trusts created with no EIN, which prevented the IRS from tracking them and therefore obstructed and impeded the IRS from duly administering the tax code. The Tenth Circuit concluded Sorensen’s charge fit within the omnibus clause of § 7212.

Sorensen next raised three challenges to the jury instructions: (1) the district court erroneously refused to give an instruction on knowledge of illegality, (2) the court erroneously gave a deliberate ignorance instruction, and (3) the court erroneously gave an instruction that allowed the jury to convict on any one of the “means” alleged in the indictment. As to the first issue, the Tenth Circuit found the mens rea element was properly set forth in the court’s instruction, and therefore the district court did not err by denying Sorensen’s request for a separate instruction that knowledge of illegality is required. The Tenth Circuit further found that the district court’s instruction on Dr. Sorensen’s good faith belief of legality satisfied any question of whether the jury believed he had acted “knowingly and dishonestly” with regard to the trusts.

Sorensen also challenged the court’s deliberate ignorance instruction, because he denied only criminal intent, not knowledge of any fact. The Tenth Circuit found no error, noting the instruction assisted the jury in determining whether the government had proved Sorensen’s knowledge of facts bearing on the trusts’ illegality. The Tenth Circuit then addressed Sorensen’s argument that the district court erred by, sua sponte, providing an instruction that the jury must convict Sorensen based on unanimous agreement of any of the means provided in the indictment. Although the Tenth Circuit agreed that it was error for the district court to so advise the jury, the error benefited Sorensen and therefore was harmless.

Sorensen next argued the district court erred by refusing to allow him to present surrebuttal evidence. The Tenth Circuit found this decision well within the district court’s discretion, and noted that the court would have allowed the evidence during Sorensen’s case in chief but refused to allow it as surrebuttal because of a fear it would have devolved into back-and-forth accusations. Sorensen also contended the prosecution’s closing rebuttal argument misstated the evidence to mount an attack on Sorensen’s credibility. The Tenth Circuit analyzed each statement in turn. For the first instance, the Tenth Circuit found the court’s curative instruction resolved any potential error. For the next assertions of error, Sorensen failed to preserve them for appellate review, and the Tenth Circuit found that the prosecutor’s misstatements did not affect Sorensen’s substantial rights. The Tenth Circuit also held that there was no error in the district court’s failure to declare a mistrial based on the prosecutor’s improper remarks. Finally, the Tenth Circuit rejected Sorensen’s cumulative error argument, noting he failed to cite any conclusory authority to support his bare assertion of cumulative error.

The Tenth Circuit affirmed Sorensen’s conviction.

Colorado Court of Appeals: Defense Counsel Did Not Err by Refusing to Call Expert Witness who Agreed with Prosecution

The Colorado Court of Appeals issued its opinion in People v. Garner on Thursday, December 17, 2015.

First-Degree Murder—Ineffective Assistance of Counsel—Rebuttal Expert—Jury Instructions—Conflict of Interest.

Defendant was charged and found guilty of first-degree murder for stabbing a female friend to death when the two were most likely high on methamphetamine.

On appeal, defendant contended that the post-conviction court erred in denying his motion because the evidence at the post-conviction hearing established that his trial counsel was ineffective. Defense counsel was not ineffective for failing to call a rebuttal expert to testify regarding the cause of the victim’s death after defendant’s first expert changed her mind and agreed with the prosecution’s expert witnesses. Further, because the subject of hypothermia as a potential cause of death was not central to the case, defense counsel did not err in failing to call an expert on this issue. It was also reasonable for defense counsel to forgo calling a methamphetamine expert, who could cause more harm than good to defendant’s case, and to forego calling another inmate, Mr. K, when this witness had three felony convictions and two other inmates had already been used as impeachment witnesses to rebut the prosecution’s witness. It was also not a conflict of interest for defense counsel to represent defendant after previously having represented Mr. K, who was a potential witness for defendant.

Defendant also asserted that his attorney erred by not objecting to the jury instructions, which only contained a partial instruction regarding intoxication law. However, voluntary intoxication was not consistent with defendant’s theory of the case, which was that he did not kill the victim. Therefore, although defense counsel should have asked to include a complete instruction regarding intoxication law since the prosecution had introduced the instruction, it was not err in failing to do so given the theory of the case. In light of these considerations, the post-conviction court correctly determined that defendant had not shown an actual conflict of interest adversely affecting his counsel’s performance.

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