March 5, 2015

Colorado Court of Appeals: Defendant Not Entitled to Second Amendment Instruction for Firearm Used In Conjunction with Illegal Drug Transactions

The Colorado Court of Appeals issued its opinion in People v. Cisneros on Thursday, April 24, 2014.

Jury Instructions—Challenge for Cause—Deadly Weapon—Evidence—Right to Bear Arms—Controlled Substance—Miranda Rights—Motion to Suppress Statements—Res Gestae Evidence.

Defendant was at home with his wife, four children, brother, and mother when intruders who apparently intended to rob defendant fired shots into the apartment. Defendant grabbed a handgun and fired shots toward the intruders. Defendant’s 10-year-old daughter was caught in the crossfire. She was shot in the head and died at the scene.

The People charged defendant with child abuse resulting in death, possession with intent to distribute marijuana, possession of marijuana–eight ounces or more, and one special offender count under the special offender statute’s deadly weapon provision. The People alleged that defendant was an armed drug dealer who sold drugs out of his home, thereby placing his daughter in a situation that posed a threat of injury to her health. The People also alleged that defendant possessed the handgun in connection with his drug dealing business.

Regarding defendant’s contention on appeal for an elemental jury instruction concerning possession of a deadly weapon under CRS § 18-18-407(1)(f), the Court of Appeals ruled that the instructions as a whole properly informed the jury of the elements of the sentence aggravator and the proof beyond a reasonable doubt burden. The Court also ruled that there was sufficient evidence to support the jury’s findings that defendant possessed both a controlled substance and a deadly weapon, and to infer a nexus between the controlled substance and the weapon.

The Court determined that because the U.S. and Colorado Constitutions do not protect the unlawful purpose of possessing a firearm in furtherance of a drug offense, the Second Amendment right to bear arms in self-defense does not infringe on the constitutionally protected right to bear arms. Defendant was not entitled to the statute’s instruction. Further, because the jury found that defendant’s possession of the handgun was related to his drug offense, the statute was not unconstitutional as applied to him, nor was it unconstitutionally vague.

The Court did not agree with defendant’s argument that his statements to law enforcement officers should have been suppressed. Defendant was not in custody and was not being interrogated when he provided his statement to the officer at the scene or in the waiting room at the police station, and defendant voluntarily made statements to police after they advised him of his Miranda rights. Therefore, the trial court did not err in denying defendant’s motion to suppress.

The Court ruled that the trial court did not err in denying defendant’s causal challenge to a juror who worked as a reporter for The Denver Post. The record supported the court’s finding that this juror could “do what the law requires” and could handle any consequences of his relationship with law enforcement agencies.

Defendant contended that the trial court erred when it admitted, as res gestae, evidence concerning his prior acts of buying, selling, and receiving marijuana. This evidence, however, was relevant as to defendant’s knowledge and intent to distribute the marijuana, his possession of a deadly weapon in connection with that offense, and the dangerous circumstances in which defendant allowed his daughter to live. Therefore, the court did not err in admitting it. The judgment and sentence were affirmed.

Summary and full case available here.

Colorado Court of Appeals: Jury Properly Instructed on Element of Self-Defense

On Thursday, April 24, 2014, the Colorado Court of Appeals issued its opinion in People v. Lane.

Jury Instructions—Lay Testimony—Expert Testimony—Mental Examination—Restitution.

After consuming several drinks, defendant Jason Lane and the victim went to Lane’s motel room in Aurora, where the victim and a neighbor of Lane’s smoked crack cocaine. Afterward, Lane permitted the victim to spend the night. According to Lane, he awoke in the middle of the night to find the victim groping his chest and genitals over his clothing. Lane claimed he acted in self-defense by stabbing the victim with a steak knife thirteen times in the chest, killing him. The jury convicted Lane of second-degree murder, and the trial court sentenced him to forty-five years in prison. The trial court also ordered Lane to pay restitution to all three of the victim’s siblings.

On appeal, Lane contended that the trial court erred in giving the jury improper jury instructions. The applicable self-defense statute emphasizes the reasonableness of a defendant’s use of self-defense. Here, the trial court properly instructed the jury on this element, and defense counsel did not tender an alternative instruction or raise further objections. The court also properly instructed the jury on the issue of defendant’s claim of an elemental traverse, which does not place the burden on the prosecution to disprove this type of self-defense.

Lane also contended that the trial court erred in excluding certain expert and lay testimony. The court did not err in finding that Lane’s request for expert testimony concerning post-traumatic stress disorder triggered Lane’s requirement to undergo a court-ordered examination for this condition, which Lane refused to do. The court also did not abuse its discretion in denying Lane’s request to present lay witnesses to testify about physical and sexual abuse perpetrated against him when he was a young child and an adolescent, because this testimony was too remote and irrelevant without expert testimony to explain the impact of such incidents on Lane’s mental state.

Lane further contended that the trial court erred in limiting the cross-examination of D.B., a prosecution witness who worked at the bar where Lane and the victim met the night of the crime. However, the record shows that defense counsel elicited, and the jury had ample information about, D.B.’s felony conviction and background to assess her credibility. Therefore, the trial court did not abuse its discretion in excluding the further details of this issue.

Finally, Lane contended that the trial court erred in awarding restitution for the travel expenses of all three of the victim’s siblings to attend the trial. Because the statute permits such restitution when a victim is deceased, the trial court did not err in awarding restitution to the victim’s siblings. The judgment and order were affirmed.

Summary and full case available here.

Tenth Circuit: Rule of Lenity Does not Apply in Plain Error Review

The Tenth Circuit Court of Appeals published its opinion in United States v. Williamson on Monday, March 17, 2014.

Defendant John S. Williamson has been protesting taxes for 30 years. In May 2008 the Internal Revenue Service (IRS) levied his wife’s wages to collect his back taxes. The IRS sent a notice of the levy, which Defendant returned, writing across the document: “Refused for cause. Return to sender, unverified bill.” In June 2008, Defendant sent an invoice for $909,067,650.00 to two IRS agents who had worked on the matter. The invoice listed the value of real and personal property allegedly seized by the IRS, added damages for various alleged torts, and then trebled the total “for racketeering.”

In December 2008, Defendant and Mrs. Williamson filed with the clerk of Bernalillo County, New Mexico, a claim of lien against the agents’ real and personal property for the same amount as the invoice. A grand jury indicted Defendant and Mrs. Williamson on two counts: (1) “corruptly endeavor[ing] to impede the due administration of the Internal Revenue Code by filing a false and fraudulent Claim of Lien,” in violation of 26 U.S.C. § 7212(a); and (2) “fil[ing] . . . a false lien and encumbrance against the real and personal property [of the IRS agents] on account of the performance of [their] official duties,” in violation of 18 U.S.C. § 1521.

Defendant’s defense at trial was essentially that he genuinely believed his lien was proper. A forensic psychologist testified that Defendant suffered from a delusional disorder that prevented him from abandoning his beliefs even when confronted with overwhelming evidence that he was wrong. Defendant requested instructions that would support his “genuine belief” defense to both charges, but the court rejected them and the jury returned verdicts of guilty on the two charges.

Defendant argued on appeal that the jury instruction concerning § 7212 should have informed the jury that he could be guilty only if he intentionally violated a known legal duty. The Tenth Circuit reviewed for plain error because at trial, defense counsel only argued the instruction should also contain a definition of “unlawful.” The court held that there was no plain error and that the rule of lenity did not apply because the “doubt required for the rule of lenity must be doubt raised by an adequately preserved argument.”

The court also rejected Defendant’s challenge to the § 1521 jury instruction for not including his requested good-faith defense. The § 1521 statute prohibits filing a false lien “having reason to know” it was false as well as knowingly filing a false lien. “Having reason to know” includes an objective component. A reasonable person knowing what Defendant knew would know the lien Defendant filed was false. Therefore, Defendant was not entitled to a good-faith defense instruction. The court affirmed his convictions.

Tenth Circuit: Denial of Self-Defense and Involuntary Manslaughter Instructions Abuse of Discretion

The Tenth Circuit Court of Appeals published its opinion in United States v. Toledo on Tuesday, January 7, 2013.

Defendant-Appellant Dhanzasikam Toledo appealed from his conviction of voluntary manslaughter. Although the district court instructed the jury on second degree murder and voluntary manslaughter, it denied Toledo’s request for self-defense and involuntary manslaughter instructions. After an argument, Toledo’s uncle lunged at him across a barbed wire fence that separated their two properties and Toledo stabbed him.

The Tenth Circuit held it was an abuse of discretion to deny Toledo’s request for a self-defense instruction because there was evidentiary support for the instruction when the defendant’s testimony was taken into consideration.

The court also held the denial of an involuntary manslaughter instruction was error. A reasonable jury could could conclude that Toledo’s actions were a reasonable response to the threat he perceived from his uncle. Given that, the evidence also could support another conclusion—that his actions, though taken in self-defense, were less than reasonable and amounted to criminal negligence. In that case, involuntary manslaughter would be a proper finding.

The court reversed and remanded for a new trial.

Tenth Circuit: Failure to Request Special Verdicts for Factual Contentions Waived Right to Challenge Sufficiency of the Evidence

The Tenth Circuit Court of Appeals published its opinion in Pratt v. Petelin on Monday, August 19, 2013.

Jennifer Pratt sued Joseph Petelin, M.D. for medical negligence. He had operated on Pratt and allegedly removed her entire thyroid and cancerous mass but ignored her post-operative complaints of still feeling a mass in her neck and other symptoms. He refused to order a scan for her so she arranged one on her own and a different surgeon removed her cancerous lymph nodes and thyroid mass. The district court submitted four factual theories of negligence to the jury in one instruction, which returned a general verdict against Dr. Petelin in the amount of $153,000.

Dr. Petelin appealed, claiming three of the four factual contentions submitted to the jury were unsupported by sufficient evidence. Dr. Petelin did not object to the first factual contention, that he failed to remove all thyroid tissue, including a cancerous mass. The Tenth Circuit distinguished this appeal from cases cited by Petelin where a new trial was ordered because a jury may have relied on an incorrect or unsupported legal theory. Here, the jury was given one correct legal theory — medical negligence — and given four possible bases for finding Petelin liable. Because Petelin did not request a special verdict form for each factual contention, he waived his right to challenge the sufficiency of the evidence. The burden is on the appellant to request a special verdict where insufficiency of the evidence is asserted regarding some, but not all, of the factual theories in a jury instruction. To hold otherwise would be unfair to plaintiffs as a new trial could have been avoided by the defendant requesting special verdicts. The court affirmed.

Colorado Supreme Court: Instruction to Jury that It Could Discuss Case Prior to Deliberations was Harmless Error

The Colorado Supreme Court issued its opinion in People v. Flockhart on Monday, July 1, 2013.

Pre-Deliberation Jury Instruction—Challenges for Cause—Judicial Disqualification.

The Supreme Court held that the trial court erred by giving a pre-deliberation instruction in defendant’s criminal trial, because to do so was not authorized by rule or existing law. The Court found, however, that the erroneous instruction constituted non-constitutional trial error and was harmless. Accordingly, the Court reversed the court of appeals’ judgment and remanded the case to the trial court to reinstate defendant’s convictions. The Court further held that a trial court retains discretion to conduct challenges for cause in open court, and that the trial court did not err by denying defendant’s motion to disqualify the trial judge.

Summary and full case available here.

Colorado Court of Appeals: Proof of Prior Convictions Not “Element” of Class 3 Felony for Motor Vehicle Theft

The Colorado Court of Appeals issued its opinion in People v. Hopkins on Thursday, May 23, 2013.

Aggravated Motor Vehicle Theft—Prior Convictions—Element—Due Process—Class of Felony.

Defendant appealed the judgment of conviction entered on a jury verdict finding him guilty of aggravated motor vehicle theft in the first degree. The Court of Appeals affirmed the judgment.

Based on proof that defendant had two prior convictions involving theft of a motor vehicle, the court ruled that the current charge was punishable as a class 3 felony and sentenced defendant to ten years in prison. Defendant contended that proof of his prior convictions is an element of the class 3 felony and that the trial court erred when it did not submit this element to the jury for its determination beyond a reasonable doubt. Alternatively, he argued that even if proof of prior convictions is not an element, due process required the court to submit the question to the jury.

CRS § 18-4-409(2)(a) describes the elements of motor vehicle theft in the first degree, which does not include proof of prior convictions. CRS § 18-4-409(3) addresses only the class of felony (it does not create a separate crime), and CRS § 409(3)(b) describes when aggravated motor vehicle theft in the first degree can be a class 3 felony. Therefore, the actus reus and mens rea are the same for the class 3 and class 4 felonies, and proof of two prior convictions related to motor vehicle theft is not an element of the class 3 felony. It follows that due process does not require that defendant’s prior conviction be proved to a jury beyond a reasonable doubt.

Summary and full case available here.

Tenth Circuit: Defendant’s Conviction of Conspiracy to Possess with Intent to Distribute Cocaine Affirmed

The Tenth Circuit published its opinion in United States v. Patterson on Friday, April 5, 2013.

The events that gave rise to Adrian Patterson’s indictment stem from a Drug Enforcement Administration (DEA) investigation into whether Bernard Redd was distributing cocaine in Wichita, Kansas. A substantial portion of the evidence presented against the co-conspirators was obtained through wiretaps of their telephone conversations, which was presented at trial. Patterson was convicted by jury trial of a number of drug charges, including conspiracy to possess with intent to distribute five kilograms or more of cocaine.

On appeal, Patterson raised a number of challenges to his conviction and sentence. He contended:

(1) The district court erred in denying his request for a pretrial hearing to determine his competency to stand trial.

A defendant’s right to a competency hearing is governed in part by 18 U.S.C. § 4241(a), which requires a district court to grant a motion for a hearing in limited circumstances. These include “if there is  reasonable cause to believe that the defendant may presently be suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense. Based on the district court’s observations of Patterson, the Tenth Circuit held the district court did not abuse its discretion in denying his request for a competency hearing.

(2) The evidence offered by the government was insufficient to support his conviction and to provide a basis for the admission of testimony under the coconspirator exception to the hearsay rule.

The Tenth Circuit found that the district court’s factual finding as to the existence of a conspiracy was not clearly erroneous. Further, in the light most favorable to the government, a rational juror could draw the conclusion from the evidence that Patterson was involved in a conspiracy to distribute cocaine.

(3) His Sixth Amendment rights under the Confrontation Clause were violated when hearsay testimony linking him to the conspiracy was introduced at trial.

Patterson argued that the admission of hearsay testimony violated principles established by the Supreme Court in Crawford v. Washington, 541 U.S. 36 (2004), and Bruton v. United States, 391 U.S. 123 (1968). The Court held that the admission of statements violated neither Crawford nor Bruton because both statements were made in furtherance of a conspiracy and were therefore nontestimonial.

(4) The district court improperly instructed the jury.

The district court made statements about its schedule. Patterson argued the statements exerted undue coercion on the jury. The Tenth Circuit held Patterson’s interpretation of the comments as coercive had no basis in the record or in the law. The district court did not plainly err in its interaction with the jury over scheduling matters.

(5) The district court’s finding at sentencing that he was responsible for the distribution of fifteen kilos of cocaine is clearly erroneous.

Patterson next challenged the district court’s factual finding at sentencing that he was responsible for distributing fifteen kilograms of cocaine. The Tenth Circuit found Patterson did not meet his burden of showing clear error. The testimony supported a finding that up to sixty kilograms of cocaine was actually or intended to be distributed during the conspiracy.

(6) The indictment was insufficiently specific as to the counts charged against him.  

The two principal criteria by which the sufficiency of an indictment is assessed are “first, whether the indictment contains the elements of the offense intended to be charged, and sufficiently apprises the defendant of what he must be prepared to meet, and, secondly, in case any other proceedings are taken against him for a similar offense[,] whether the record shows with accuracy to what extent he may plead a former acquittal or conviction.” United States v. Washington, 653 F.3d 1251, 1259 (10th Cir. 2011).

Based on this standard, the Tenth Circuit found no error.

(7) The district court erred in failing to exclude evidence obtained in violation of his Fourth Amendment rights.

Patterson’s last claim is that the district court erred in not granting his motion to suppress evidence obtained from the government’s alleged illegal use of cell site location information. By failing to develop any argument on this claim in the Tenth Circuit, Patterson waived this claim.


Tenth Circuit: Jury’s Award in Breach of Insurance Contract Case Affirmed

The Tenth Circuit published its opinion in Ryan Development Company v. Indiana Lumbermens Mutual Insurance Company on Wednesday, March 27, 2013.

This case arose from a fire that destroyed a Texas manufacturing facility in April 2009. The owner of the facility, Agriboard, manufactured building panels made of compressed straw. At the time of the fire, Agriboard was insured under a fire and related losses insurance policy issued by Indiana Lumbermens Mutual Insurance Company (“ILM”) with various coverages, including lost income. ILM paid $450,000. Agriboard sued ILM for breach of an insurance contract, and ILM paid $1.8 million. Agriboard continued to seek recovery under the policy, but ILM refused to pay the amount requested. Agriboard re-filed suit, seeking $2.4 million in unpaid coverage.

The jury awarded Agriboard $2,261,166 for breach of contract. ILM renewed its motion for judgment as a matter of law, or in the alternative, for a new trial, asserting four grounds for relief: (1) prejudicial remarks in Agriboard’s closing arguments; (2) confusing and inappropriate jury instructions; (3) inadmissible expert testimony; and (4) a verdict unsupported by the evidence. The trial court denied the motion. ILM appealed.

At issue on appeal was ILM’s motion for a new trial.

First, ILM argued it was entitled to a new trial because Agriboard’s accountants offered expert testimony after the trial court ruled in limine that such testimony was inadmissible. Because the district court admitted the accountants’ testimony under FRE 701, where a non-expert witness may offer opinions not based on scientific, technical, or other specialized knowledge within the scope of Rule 702, the Tenth Circuit held that the district court did not abuse its discretion in admitting the accountants’ testimony.

Second, ILM challenged certain jury instructions, asserting they were (1) inappropriate because Agriboard never elicited testimony that the policy was ambiguous, and (2) designed to confuse the jury. The Tenth Circuit’s review of the record confirmed the district court’s finding that the instructions on how to interpret an insurance policy and what to do when the policy and endorsement conflict were suitable for the jury.

Third, ILM argued a new trial was warranted because Agriboard’s counsel made improper remarks during closing arguments. The decision to grant a new trial based upon counsel’s misconduct is left largely to the discretion of the district court. A new trial is appropriate only if the moving party shows that it was prejudiced by the attorney misconduct. Because the jury was instructed that closing arguments are not evidence, any remarks were brief and unlikely affected Agriboard’s substantial rights, particularly given that the jury was instructed to follow the law as the judge explained.

Finally, ILM argued the verdict was not supported by the evidence. When a new trial motion asserts that the jury verdict is not supported by the evidence, the verdict must stand unless it is clearly, decidedly, or overwhelmingly against the weight of the evidence. Absent an award that shocks the judicial conscience or raises an irresistible inference that passion, prejudice, corruption or other improper cause played a part in the jury’s damage award, an appeals court will not disturb the jury’s damage award. Ample evidence was introduced at trial for the jury to conclude that ILM breached its contract. Thus, the trial court did not abuse its discretion.


Colorado Court of Appeals: Although Constitutional Confrontation Rights Violated, Error was Harmless Beyond a Reasonable Doubt

The Colorado Court of Appeals issued its opinion in People v. Houser on Thursday, January 31, 2013.

Patronizing a Prostituted Child—Affirmative Defense—Reasonable Belief in Age Defense—Confrontation Rights—Cross-Examination—Plea Agreement—Jury Instruction—Lesser-Included Offense.

Defendant appealed the judgment of conviction entered on a jury verdict finding him guilty of patronizing a prostituted child. The judgment was affirmed and the case was remanded for correction of the mittimus.

A.J., age 16, was arrested in Denver and charged with prostitution, soliciting for the purpose of prostitution, and possession of a controlled substance. A.J. told police that the night before her arrest, she had gone to defendant’s home in Douglas County, where he paid her $240 to engage in sexual acts with him. Based on A.J.’s statements, defendant was charged in Douglas County with patronizing a prostituted child.

Defendant first contended that the trial court erred by precluding him from raising the defense that he reasonably believed A.J. was at least 18 years old. However, CRS § 18-7-407 prevents a defendant from offering a reasonable belief in age defense to a charge of patronizing a prostituted child. Therefore, the court did not err in this regard.

Defendant also contended that the trial court violated his confrontation rights by precluding cross-examination of A.J. on the details of her plea agreement, her continued prostitution, and the outstanding warrant. The jury heard only that A.J. had been arrested, agreed to plead guilty, and provided information to police. The disparity between the originally charged class 3 felony (drug possession) and the class 3 misdemeanor (prostitution) to which A.J. pleaded was likely to cause an average juror to infer that she had received significant benefit from testifying. Therefore, although the court committed constitutional error in limiting cross-examination on the plea agreement, the overwhelming evidence of defendant’s guilt rendered this error harmless beyond a reasonable doubt. Further, the exclusion of evidence of the outstanding warrant against A.J. and of her continued prostitution was harmless beyond a reasonable doubt for the same reasons.

Defendant further argued that the trial court’s instruction defining “prostitution by a child” was erroneous. The definitional instruction substantially followed the statutory language, and it was not error that the instruction provided multiple ways by which an act could constitute “prostitution by a child.” Defendant’s e-mails were sufficient to support a jury finding to this effect. Therefore, the trial court’s definitional instruction did not constitute plain error.

Defendant also challenged the trial court’s failure to give his tendered jury instruction on the lesser-included offense of attempt. However, given the definition of “prostitution by a child,” the evidence would not have permitted the jury to acquit defendant of patronizing a prostituted child while convicting him of the lesser-included attempt offense. Therefore, the trial court properly rejected defendant’s attempt instruction.

Summary and full case available here.

Colorado Court of Appeals: Trial Court Erred in Requiring Jury to Determine Penalties but Error was Corrected in Trial Court and Therefore There Was No Harm

The Colorado Court of Appeals issued its opinion in Graham v. Zurich American Insurance Co. on Thursday, November 1, 2012.

Employment—Colorado Wage Claim Act—Penalties—Jury—Attorney Fees.

Zurich American Insurance Company appealed from the trial court’s final judgment in favor of Michael Graham. The judgment was affirmed and the case was remanded.

After being terminated from his job at Zurich, Graham brought an action to recover certain bonuses that, in his view, constituted unpaid wages under the Colorado Wage Claim Act. The jury found in Graham’s favor and awarded $28,326.98 in damages, but it failed to add certain penalties that are mandatory under the Wage Claim Act. After the court gave the jury additional instructions, the jury entered a verdict in favor of Graham that included penalties. The court entered judgment on the first verdict in the amount of $28,326.98, plus penalties and interest.

Zurich contended that the court erred in granting judgment for Graham. It is the jury’s responsibility to make the necessary factual findings as to whether the employee made a written demand for payment, whether the employer paid the employee within fourteen days, and whether the employer’s failure to pay was willful. After receiving the jury’s factual findings, the court is then responsible for determining the penalties as a matter of law. Here, the court erred in requiring further deliberations after it received the first verdict. The court should have recognized that the first verdict contained all the necessary factual findings, and it should have corrected the jury’s determination of penalties as a matter of law. Therefore, although the court erred in further instructing the jury to determine penalties, it corrected its error by entering judgment on the first verdict and determining penalties based on the jury’s factual findings. The judgment was affirmed and the case was remanded to the court to determine, in its discretion, whether Graham should be awarded the reasonable attorney fees he incurred in defending this appeal.

Summary and full case available here.

Colorado Court of Appeals: Defense Counsel’s Assistance at Trial Court Was Effective in Several Ways

The Colorado Court of Appeals issued its opinion in People v. Aguilar on Thursday, October 25, 2012.

Crim.P. 11 and 35(c)—Second-Degree Murder—Felony Murder—Burglary—Ineffective Assistance of Counsel—Expert Witness—Jury Instruction—Double Jeopardy Rights—Providency Hearing—Sentencing.

Defendant, appearing pro se, appealed the district court’s order denying his Crim.P. 35(c) motion for post-conviction relief alleging ineffective assistance of counsel. The order was affirmed.

Defendant and his companions broke into the victim’s home, bound and gagged the victim, and covered him with a mattress. They then ransacked the victim’s home and carried items away. The victim was unable to free himself and consequently died. A jury found defendant guilty of first-degree burglary, second-degree burglary, theft, robbery, and conspiracy to commit robbery. The jury could not reach a verdict on a charge of felony murder and a mistrial was granted with respect to that charge. Before the scheduled retrial, defendant pleaded guilty to second-degree murder in exchange for dismissal of the felony murder charge.

Defendant contended that he received ineffective assistance of trial counsel because counsel failed to hire an expert to observe and rebut the prosecution’s use of consumptive DNA testing. Defense counsel’s decision to call or not call his own DNA expert was a matter of trial strategy. Defendant failed to allege facts establishing that counsel’s choice was outside the wide range of professionally competent assistance. Consequently, defendant was not entitled to a hearing on this claim.

Defendant also contended that counsel was ineffective for failing to tender a reckless manslaughter instruction at trial. Defendant’s theory of defense was that he did not cause the victim’s death. Therefore, reckless manslaughter was inconsistent with defendant’s theory of defense and defendant cannot prove that counsel’s performance was deficient in this regard.

Defendant also argued that his trial counsel was ineffective for not advising him of his double jeopardy rights. Specifically, defendant argued that because the jury had convicted him of first-degree burglary, a lesser-included offense of felony murder, he could not be retried for felony murder and, therefore, his counsel was ineffective in neglecting to advise him that he should not plead to another lesser included offense of felony murder. The jury convicted defendant of burglary and expressly hung on the charge of felony murder. The implied acquittal rule does not bar retrial of a greater offense when a jury deadlocks on that charge but convicts on a lesser-included offense. Therefore, a retrial for felony murder would not have violated defendant’s double jeopardy rights. Consequently, his claim that counsel was ineffective for allowing his guilty plea to avoid a second trial failed.

Defendant further contended that he received ineffective assistance of counsel during the Crim.P. 11 providency hearing. However, the plea agreement signed by defendant and the record of the plea hearing do not support defendant’s argument. Because defendant was advised orally or in writing of each of the asserted errors, he failed to establish that his plea was not voluntary, knowing, or intelligent, or that his defense counsel provided deficient performance.

Finally, because defendant’s convictions were not supported by identical evidence, his counsel was not ineffective in failing to secure concurrent sentences. The order was affirmed.

Summary and full case available here.