July 23, 2016

Colorado Court of Appeals: Rational Basis Supported Tendered Lesser Non-Included Offense Instruction

The Colorado Court of Appeals issued its opinion in People v. Naranjo on Thursday, May 7, 2015.

Felony Menacing—Lesser Non-Included Offense—Disorderly Conduct.

Defendant Naranjo was convicted of two counts of felony menacing. The victims, a father and daughter, testified at trial that as the father was merging onto the highway, Naranjo cut them off, pointed a gun at the daughter, and threatened both of them. Naranjo testified that the father was the aggressor, that he inadvertently showed his gun as he was putting it away in the glove box, and that he did not make any threats.

On appeal, Naranjo contended that the trial court reversibly erred in declining to instruct the jury on the lesser non-included offense of disorderly conduct with a deadly weapon. Although Naranjo’s asserted reason for grabbing the gun was, as the trial court put it, “perfectly benign,” a jury could nonetheless conclude that handling a weapon while traveling on a public highway supported a finding that Naranjo consciously disregarded a substantial and unjustifiable risk that the gun would be displayed to someone outside the car. Thus, the record supports a rational basis from which the jury could have convicted Naranjo of disorderly conduct with a deadly weapon and acquitted him of felony menacing. The trial court therefore erred in declining to give the lesser non-included offense instruction to the jury. Because this error was not harmless, the judgment was reversed and the case was remanded for a new trial.

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

Tenth Circuit: Jury Improperly Instructed on Direct Threat in Employment Discrimination Case

The Tenth Circuit Court of Appeals issued its opinion in Equal Employment Opportunity Commission v. Beverage Distributors Company, LLC on Monday, March 16, 2015.

Michael Sungaila, who is legally blind, worked for Beverage Distributors until his position was eliminated, at which time he obtained a higher paying job in the company’s warehouse that required him to pass a physical. He passed the physical, but the doctor said Mr. Sungaila would require accommodations for his impaired vision. Beverage Distributors declined to make the accommodations, concluding instead that Mr. Sungaila’s condition created a significant risk of harm to himself or others, and rescinded its job offer. Mr. Sungaila subsequently received a lower-paying position with a different company. The EEOC brought suit on his behalf under the ADA.

At trial, Beverage Distributors asserted two defenses: (1) Mr. Sungaila’s limited vision created a direct threat of harm to himself or others and no reasonable accommodations could mitigate the risk, and (2) should he prevail, Mr. Sungaila’s award should be reduced because of his failure to mitigate damages. The jury found that Beverage Distributors was liable for discrimination and Mr. Sungaila was not a direct threat, but also found he had failed to mitigate his damages. The jury reduced his back-pay award for failure to mitigate. The EEOC filed two post-trial motions, first invoking F.R.C.P. 50(a) and arguing Beverage Distributors had not proved failure to mitigate as a matter of law, and also seeking a tax-penalty offset for the lump sum award. The district court granted both motions. Beverage Distributors appealed.

The Tenth Circuit first addressed Beverage Distributors’ claim that the jury was erroneously instructed on direct threat and this constituted reversible error. The Tenth Circuit evaluated the instruction and found it inaccurately conveyed the direct threat standard. The instruction stated that Beverage Distributors must prove that Mr. Sungaila’s employment posed a direct risk of harm, while the actual standard is simply that Beverage Distributors reasonably believed there was a direct risk. Because the jury instruction conveyed the wrong standard for the direct threat defense, and because the jury likely relied on this instruction in determining liability, the Tenth Circuit reversed.

Next, Beverage Distributors argued the district court improperly granted the EEOC’s Rule 50(a) motion, but the Tenth Circuit declined to reach the issue, finding that the evidence for the fact-intensive issue might be different on remand.

Finally, the Tenth Circuit found that the tax penalty offset was properly awarded. If the issue arises again on remand, it is properly before the court to decide whether to award a tax penalty offset, and there is no impropriety in such an award.

The Tenth Circuit reversed and remanded on the direct threat instruction and found the tax penalty offset was proper.

Colorado Court of Appeals: Eyewitness “Showup” Identification Not Inherently Impermissible

The Colorado Court of Appeals issued its opinion in People v. Theus-Roberts on Thursday, March 26, 2015.

Eyewitness—Identification—Jury Instructions—Witness Credibility—Expert Testimony—Lay Witness—Complicity.

According to the prosecution’s evidence at trial, Theus-Roberts and another man, Parrish, got into a cab and told the driver to take them to a designated location. When they got there, Parrish got out. Theus-Roberts had the driver take him to several other locations before returning to the initial destination approximately an hour later, running up a $90 fare. Theus-Roberts gave the driver $80 in cash, told him he would need to get the rest from his apartment, and walked away. Eventually, a man—identified by the driver at trial as Theus-Roberts—came to the driver’s window, aimed a gun at the driver, demanded and took the $80, and shot the driver in the chest. The driver fled and called 911. A jury convicted Theus-Robert of attempted first-degree murder, first-degree assault, aggravated robbery, second-degree assault, and two crime of violence sentence enhancers.

On appeal, Theus-Roberts contended that the trial court erred by denying his suppression motion and allowing an eyewitness, R.M., to give testimony that was the product of an unduly suggestive out-of-court showup. R.M. lived in a house across the street from where the shooting occurred and looked out her window when she heard a loud noise. She saw a “black male wearing dark clothing and carrying a black bag next to the taxi cab.” The man “walked away from the scene at a quick pace southbound through the alley.” At the scene of the crime, R.M. identified the black bag and thereafter identified Theus-Roberts as the shooter. Under the totality of the circumstances in this case, the identification was not unreliable. Therefore, the trial court did not err by denying the suppression motion.

Theus-Roberts also argued that the trial court erred in refusing to give his three jury instructions that would have provided guidance on evaluating the reliability of eyewitness identification testimony. Here, the jury received the pattern instruction on the credibility of witnesses instruction. Therefore, the trial court did not err in refusing Theus-Roberts’s additional tendered instructions.

Theus-Roberts contended that the trial court erroneously admitted irrelevant and prejudicial expert testimony from a lay witness when it allowed a police officer to testify about gunshot residue (GSR) testing and fingerprint recovery. After a forensic expert testified about the possible explanation for absence of GSR and fingerprint evidence, the police officer who ordered the testing testified as to his experience with this type of evidence. The officer was qualified by his experience and training to testify about GSR and fingerprint testing; his testimony was brief; and it was cumulative of the testimony of experts who had already testified, in detail and without objection, about why GSR or latent fingerprint tests might be negative. Therefore, any error was harmless.

Theus-Roberts further contended that the trial court erred in instructing the jury, over his objection, on complicity. However, the evidence was sufficient to permit the jury to conclude that Parrish was the shooter and that Theus-Roberts intended to—and did—aid and abet Parrish in setting up the crime. Thus, the trial court did not err in instructing the jury on complicity. The judgement was affirmed.

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

Tenth Circuit: Specific Findings Must be Made Before Occupational Restrictions Imposed

The Tenth Circuit Court of Appeals issued its opinion in United States v. Dunn on Tuesday, February 10, 2015.

Michael Dunn was convicted of possession, receipt, and distribution of child pornography and sentenced to 144 months’ imprisonment followed by 25 years’ supervised release after placing images of child pornography in a shared folder on a peer-to-peer file sharing network. The district court imposed several conditions of supervised release, including restricting Dunn’s ability to use and access computers and the internet, and also imposed restitution based on a request from one of the minors depicted in the images Dunn shared. Prior to his conviction, Dunn was a computer teacher and computer technician. Dunn appealed, arguing: (1) the jury was erroneously instructed that by placing the child pornography images in the shared folder, he could be convicted on the distribution charge; (2) his sentences for receipt and distribution are duplicitous; (3) the district court failed to make the necessary findings regarding the occupational restriction imposed during his supervised release; and (4) the district court applied the wrong legal standard in determining the amount of restitution he was required to pay.

The Tenth Circuit first examined the jury instruction issue, and, following its precedent, found that defendant’s knowing placement of the child pornography files into a shared folder was sufficient to constitute distribution. Dunn also argued that the instructions forced the jury to accept the prosecution’s explanation of how the peer-to-peer software worked, but the Tenth Circuit found nothing to support this conclusion, finding instead that the jury was free to accept either the prosecution’s or the defense’s evidence.

As to Dunn’s second point on appeal, the prosecution conceded that Tenth Circuit precedent precluded separate sentences for both receipt and possession of child pornography regarding the same images. The Tenth Circuit agreed and remanded on this point for vacation of one of the sentences.

Dunn also argued that the district court impermissibly imposed special conditions on his release that prevented him from being employed without making specific findings. The 25-year term of special conditions of Dunn’s release include numerous restrictions on Dunn’s ability to use computers and the internet, which impact his employment as a computer technician and computer teacher. Because the district court did not make specific determinations regarding the necessity of the occupational restrictions and did not impose the restrictions for the minimum time necessary, the Tenth Circuit remanded with instructions for the district court to vacate the restrictions and reconsider the issue with proper findings.

Finally, Dunn argued, and the prosecution agreed, that the district court’s imposition of the victim’s entire amount of restitution was inconsistent with the Supreme Court’s decision in Paroline v. United States. The Tenth Circuit agreed, and, analyzing Paroline‘s effect on restitution awards in child pornography cases, remanded for the district court to consider Dunn’s actual contribution to the victim’s damages.

The judgment was affirmed in part, reversed in part, and remanded with instructions.

Colorado Supreme Court: Defense Counsel Failed to Object to Erroneous Statement of Law and No Plain Error

The Colorado Supreme Court issued its opinion in Martinez v. People on Monday, March 16, 2015.

Objections—Plain Error—Sufficiency of the Evidence.

In this case, the Supreme Court considered the effect of an erroneous deliberation instruction in a first-degree murder trial where defense counsel’s trial objection failed to identify the ground that rendered the deliberation instruction erroneous. The Court held that the plain error standard applies because the defense objection provided the trial court with no meaningful chance to avoid the instructional error. The Court concluded that the instructional error did not merit reversal under the plain error standard because overwhelming evidence proved that defendant deliberated, and the jury instructions as a whole adequately explained the law. The Court also held that there was sufficient evidence for the jury to convict defendant of first-degree murder after deliberation. The judgement of the court of appeals was affirmed and the case was remanded with instructions.

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

Colorado Court of Appeals: Self-Employed Director of Private School Not “Public Employee”

The Colorado Court of Appeals issued its opinion in People v. Rediger on Thursday, March 12, 2015.

Public Employee—Public Building—CRS § 18-9-110(1)—Jury Instructions—Waiver.

Believing that Rediger had stolen hay from their property, the victim and her husband asked the district attorney to bring charges against him. While school was in session, Rediger drove to the Rocky Mountain Youth Academy (Academy), where the victim worked as owner–director, to discuss the charges. Redigerwas convicted by a jury of interfering with a public employee in a public building, in violation of CRS § 18-9-110(1), and interfering with staff, faculty, or students of an educational institution, in violation of CRS § 18-9-109(2).

On appeal, Rediger argued that because the victim was not a “public employee” and the Academy was not a “public building,” his conviction cannot stand under CRS § 18-9-110(1). The record does not show that any governmental entity had the right to hire or fire Academy employees. In addition, because the victim testified that she drew her salary from the budget that she controlled, the state did not have any direct control over her salary. Moreover, the record does not contain sufficient evidence for any reasonable juror to conclude that the Academy was a public building. Because these errors were obvious, the trial court erred by not sua sponte dismissing the charge.

Rediger also argued that the prosecution made an improper constructive amendment of the second charge by tendering an elemental instruction under CRS § 18-9-109(1)(b) rather than under CRS §18-9-109(2), as charged in the information. Because Rediger’s trial counsel affirmatively agreed to the jury instructions, he waived any right to appeal the instructions. Accordingly, the judgment of conviction on the § 18-9-110(1) count was reversed, and the judgment of conviction on the § 18-9-109(2) count was affirmed.

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

Colorado Court of Appeals: Single Entry Can Only Support One Count of Burglary

The Colorado Court of Appeals issued its opinion in People v. Carter on Thursday, March 12, 2015.

Burglary—Challenge for Cause—Cross-Examination—Relevance—Jury Instructions—Complicity Liability—Voir Dire—Reasonable Doubt—Prosecutorial Misconduct.

After Fuller, a former grade-school classmate of R.W., knocked on the door, asking to use R.W.’s phone, two or three men rushed inside, pushing past R.W. One of the perpetrators was armed with a rifle. While the perpetrators searched the house, several people called 911, and the police arrived moments later. Fuller and Golston fled, but were apprehended nearby. Defendant’s wife, a friend who was residing in the basement, and at least three minor children had been in the house and witnessed the incident.

Defendant was taken into custody several days later after his parole officer noted that his ankle monitor placed him within 150 to 200 feet of the residence on the night of the incident. He was convicted of four counts of first-degree burglary—assault/menace; one count of first-degree burglary—deadly weapon; and three counts of misdemeanor child abuse.

On appeal, defendant argued that the trial court erred when it denied his challenge for cause to a prospective juror who was a criminal investigator for the Colorado Public Utilities Commission (CPUC). However, the CPUC does not qualify as a public law enforcement agency under the applicable statute. Therefore, it was not error for the trial court to deny the challenge for cause.

Defendant also argued that the trial court erred by restricting him from eliciting, on cross-examination, information about two alleged incidents that he claims would have been relevant as to R.W.’s motive to testify and credibility. Specifically, defendant sought to cross-examine R.W. and Detective Meier, an investigating detective on the case, to support a defense that what happened at R.W.’s house on the eve of the incident was not a robbery but a botched drug deal. This evidence, however, was too speculative to support the relevance of these inquiries; therefore, they were properly excluded.

Defendant argued that the trial court erred when it gave a second instruction on complicity liability. Standing alone, the second instruction could be confusing, but it didn’t conflict with or contradict the first instruction. When read as a whole, the instructions accurately informed the jury of the applicable law.

Defendant contended that the trial court erred, during voir dire instructions to the jury, by analogizing the beyond a reasonable doubt standard to an incomplete jigsaw puzzle, and by allowing the prosecutor to make similar comments, consequently lowering the prosecution’s burden of proof. The trial court verbally instructed the jury twice on the definition of reasonable doubt, as stated in the model jury instructions and applicable case law, and provided final written instructions. Absent evidence to suggest otherwise, it is presumed that the jury followed these instructions.

Defendant further contended that the trial court erred when it allowed the prosecutor to make statements characterizing defense counsel as attempting to distract the jury with “magic trick[s]” and “red herrings.” Although the reference to defense counsel in the prosecution’s closing argument was arguably inappropriate, as a whole, the prosecutor’s statements were fair comments on the evidence. Therefore, they were not improper. Conversely, the prosecutor’s comments during voir dire did not appear to be tied to the evidence and were improper. However, these statements were not the focus of the overall voir dire and argument. Therefore, any error was harmless.

Defendant also argued that the trial court erred in entering convictions on each of the five counts of first-degree burglary. Defendant’s burglary convictions were based on the same unlawful entry of the victims’ home. Because a single entry can support only one conviction of first-degree burglary, even if multiple assaults occur, defendant’s five first-degree burglary convictions violated the Double Jeopardy Clause.

The case was remanded to the trial court with directions to vacate defendant’s conviction and sentence for four counts of first-degree burglary—assault/menace and correct the mittimus accordingly. In all other respects, the judgment was affirmed.

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

Colorado Supreme Court: Error for Trial Court to Take Judicial Notice of Defendant’s Absence in Court

The Colorado Supreme Court issued its opinion in Doyle v. People on Tuesday, February 17, 2015.

Colorado Rules of Evidence—Judicial Notice.

Defendant petitioned for review of the court of appeals’ judgment affirming his conviction for violating a condition of his bail bond. At the request of the prosecution, the trial court took judicial notice of the fact that defendant failed to appear in court on a particular day, as mandated by the relevant condition of his bond. The court instructed the jury that although it need not accept this judicially noticed fact as true, a judicially noticed fact is one that the court has determined is not the subject of reasonable dispute and one that the court has accepted as true.

The Supreme Court reversed. The resolution of a factual matter at issue in a prior judicial proceeding does not become an indisputable fact within the contemplation of CRE 201 because it was reflected in a court record. Accordingly, the trial court erred in taking judicial notice that defendant failed to appear in court on a particular day. Because the jury was instructed that this judicially noticed fact was not subject to reasonable dispute and had already been accepted as true by the court, the error was not harmless.

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

Colorado Court of Appeals: Pretrial Motion Insufficient to Preserve Issue for Appellate Review

The Colorado Court of Appeals issued its opinion in People v. Dinapoli on Thursday, February 12, 2015.

Assault—Jury—Modified Allen Instruction—Mistrial—Pretrial Ruling—Contemporaneous Objection.

K.M.’s dog and defendant’s dog “got into a tussle.” After the dogs separated, K.M. and defendant engaged in a physical altercation, during which defendant hit K.M. with a tree branch, dislocating her arm. Defendant claimed it was self-defense. The jury found defendant guilty of one count of second-degree assault.

On appeal, defendant contended that she was entitled to a new trial because the trial court should have told the jury that it would declare a mistrial if the jury could not reach a unanimous verdict. In response to the jury’s concern that they could not reach a verdict on the fourth charge, the court gave the jury a modified Allen instruction and instructed the jury to continue deliberations (Allen v. United States, 164 U.S. 492 (1896)). Trial courts are not required to supplement a modified Allen instruction with a mistrial advisement. Therefore, defendant was not entitled to a new trial on this argument.

Defendant also contended that she was entitled to a new trial because the prosecutor committed misconduct by referring to K.M. as the “victim” during trial. Although defendant obtained a pretrial ruling that precluded the parties from referring to K.M. as the victim, she never sought to enforce that ruling at trial with a contemporaneous objection. Because this error was not obvious and did not constitute plain error, defendant was not entitled to a new trial on this argument. The judgment was affirmed.

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

Colorado Court of Appeals: Trial Court Erred By Refusing Self-Defense Instruction for Reckless Manslaughter Charge

The Colorado Court of Appeals issued its opinion in People v. McClelland on Thursday, January 15, 2015.

Reckless Manslaughter—Self-Defense—Jury Instruction—Burden of Proof—In Life Photographs—Evidence.

Defendant’s father and the victim were involved in a physical altercation. Defendant pulled a gun out of his father’s backpack and shot the victim seven times, killing the victim. The jury found defendant guilty of reckless manslaughter.

On appeal, defendant contended that the trial court erred by not giving the jury a “self-defense law instruction” on the charge of reckless manslaughter.Instruction Number 19, which addressed the applicability of self-defense to the reckless manslaughter count, directed the jurors not to apply Instruction Number 18, which explained the legal meaning of self-defense. Therefore, the jurors received no guidance as to the meaning of self-defense with respect to the offense of reckless manslaughter. This cast serious doubt on the fairness of defendant’s conviction. Because the error was seriously prejudicial and obvious, it constituted plain error. Accordingly, defendant’s conviction was reversed and the case was remanded for retrial.

Defendant also contended that the trial court erred by placing the burden on him to prove self-defense to the charges of reckless manslaughter and criminally negligent homicide.Here, the trial court did not err. Defendant had the burden of proving self-defense to the charges of reckless manslaughter and criminally negligent homicide.

Defendant further argued that the trial court abused its discretion when it admitted three “in life” photographs depicting the victim participating in family events. In life photographs of homicide victims are not per se inadmissible; rather, their admissibility must be determined on a case-by-case basis. Here, the photographs were evidence of an undisputed fact—that the victim was alive prior to the shooting. Because the photographs had almost no probative value, and because the prosecutor sought to elicit the jury’s sympathy based on those photographs, the admission of the photographs unfairly prejudiced defendant and the trial court erred by admitting them. On retrial, the court should reconsider whether to allow in life photographs in light of the above discussion, and if so, how many, and whether to limit the prosecution’s comments about them so as to avoid the risk of unfair prejudice.

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

Colorado Court of Appeals: Jury Instructions Erroneously Failed to Consider Parent’s Actions; Error Not Harmless

The Colorado Court of Appeals issued its opinion in People in Interest of J.G. on Wednesday, December 31, 2014.

Dependency and Neglect—Proof as to Each Parent.

In January 2014, the Fremont County Department of Human Services (FCDHS) learned that 5-year-old S.L. had told her parents that her half-brother, 11-year-old Jo.G., had touched her inappropriately while she was trying to sleep. Mother and Father immediately reported the incident to police. Investigation found that Jo.G. had also inappropriately touched his 8-year-old sister. Jo.G was criminally charged and moved to an offense-specific foster home.

FCDHS then filed a petition in dependency and neglect, alleging that all five of the children living in the home were dependent and neglected because the environment in which Jo.G. was able to sexually act out against his sisters was injurious to all of the children. Mother admitted that Jo.G was dependent and neglected, but denied the allegation as to the other four children, and requested a jury trial on the issue of their adjudication.

The jury found that although none of the children lacked proper parental care and none were homeless, each child’s environment was injurious to his or her welfare. Accordingly, the court adjudicated all as dependent and neglected.

On appeal, the Court of Appeals found that the court erred by providing jury instructions and a special verdict form that allowed the jury to determine the status of each child without considering each parent’s actions, availability, ability, andwillingness to provide reasonable parental care. The Court further concluded that the trial court’s errors were prejudicial to mother, and therefore constituted grounds for reversal. As instructed, the jury was permitted to find that a child’s dependent status in relation to any respondent parent was sufficient to find that the child was dependent and neglected as to all respondent parents. If properly instructed to separately examine the children’s status in relation to each parent, the jury might have concluded that the children’s environment was notinjurious to their welfare, because mother was available, willing, and able to provide reasonable parental care. Had the jury made such a determination, the children could not have been adjudicated as dependent and neglected.

Accordingly, the order was reversed and the case was remanded for a new adjudicatory trial. If FCDHS does not pursue adjudication, the order and decree of adjudication must be vacated and the petition dismissed.

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

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

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

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

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

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

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

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

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