February 21, 2017

Tenth Circuit: A Defendant Cannot be Charged with Obstruction of Justice for Failing to Report Her Crime

The Tenth Circuit Court of Appeals issued its opinion in United States v. Kupfer on Tuesday, July 7, 2015.

Elizabeth Kupfer failed to report over $790,000 in gross income for joint tax returns filed from 2004 to 2006. She was charged with three counts of tax evasion, one for each year, and the jury found her guilty on each of the three counts. She was sentenced to three years in prison. She appealed, arguing (1) the district court’s jury instruction on willfulness was insufficient because it failed to describe particular mental states that did not constitute willfulness, such as negligence, inadvertence, mistake, or accident; (2) the trial court erroneously failed to conduct a hearing based on one juror’s affidavits averring improper conduct by another juror; and (3) the district court improperly increased the offense level based on obstruction of justice for Kupfer’s failure to disclose her crime.

The Tenth Circuit first addressed the jury instructions. The district court correctly instructed the jury that willfulness was required for a finding of guilt, and that willfulness referred to “the voluntary intent to violate a known legal duty.” Kupfer argued that although the instructions were correct as far as they went, they should have gone further and elucidated conduct that does not qualify as willfulness. The Tenth Circuit disagreed. Relying on circuit precedent, the Tenth Circuit found no error in the court’s failure to instruct on what conduct is not considered willful, and found that the district court’s decision was well within its discretion.

Next the Tenth Circuit evaluated the issue of whether the district court erred in failing to conduct a hearing on the juror’s affidavits of another juror’s misconduct. The district court received affidavits from the same juror from both the defense and prosecution, and declined Kupfer’s motions for a hearing and a mistrial. The district court could have reasonably concluded that the two affidavits relayed all the information it would have gleaned from the juror in a hearing, and it was a proper exercise of the court’s discretion to decline to hold a hearing.

The Tenth Circuit then addressed Kupfer’s argument that her sentence was improperly increased. The Tenth Circuit agreed. A defendant cannot be charged with obstruction of justice for failing to report her crime. The Tenth Circuit vacated the sentence and remanded for resentencing.

The Tenth Circuit affirmed the judgments of the district court but remanded for resentencing.

Colorado Court of Appeals: Instruction on Highest Degree of Care Unnecessary in Ambulance PI Case

The Colorado Court of Appeals issued its opinion in Bedee v. American Medical Response of Colorado on Thursday, September 10, 2015.

Negligence—Jury Instruction—Highest Degree of Care.

Bedee was a member of a medical team that transported a neonate in an ambulance owned by American Medical Response of Colorado (AMR). On the return trip, Bedee rode in the back of the ambulance, which was equipped with lap belts for occupants. The ambulance allegedly hit a series of dips in the road so severe that Bedee was lifted off her seat and slammed back down causing her lower back to twist and torque. Bedee sought damages for a lower back injury, alleging the drivers were negligent because they didn’t slow down when hitting the dips.

Before trial, Bedee submitted a trial brief arguing that a jury instruction should be given that the ambulance drivers owed its passengers the highest degree of care because of their control of the ambulance and her lack of freedom of movement during the ride. AMR rebutted this, arguing that ambulances are not common carriers under a Colorado statute and therefore the higher degree of care should not apply. The trial court did not give the instruction. The jury returned a verdict in favor of AMR, finding that AMR did not act negligently or cause Bedee’s injuries. Bedee appealed, arguing it was reversible error to not give the highest standard of care instruction.

The Court of Appeals discussed the elements of a negligence action and the factors set forth under Lewis v. Buckskin Joe’s, 396 P.2d 933 (Colo. 1964),for the highest degree of care instruction. It noted these factors have only been applied in Colorado to ski lift operators and operators of amusement rides. It also noted that a trial court may instruct a jury on the highest degree of care only where “all minds concur” that a business by its very nature is “fraught with peril to the public.” In addition, if a defendant is a “common carrier,” it has the duty to exercise the highest degree of care to its passengers.

Here, the Court found no evidence of an increased degree of risk on the return ambulance trip. Just as any other driver in Colorado, there was no reason to hold the ambulance driver to a higher degree of care than that of reasonable care. To hold otherwise would to establish precedent that every driver owes a higher degree of care than reasonable care to its passengers.

The Court also rejected the argument that the ambulance was a common carrier. The Court found that most jurisdictions based this determination on their statutes. In Colorado, the statutory definition in Title 40 does not encompass ambulances, and in fact, they are specifically excluded in CRS § 40-10.1-105(1)(d). The judgment was affirmed.

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

Colorado Court of Appeals: Reversible Error to Give Duplicitous Jury Instructions

The Colorado Court of Appeals issued its opinion in Walker v. Ford Motor Co. on Thursday, September 10, 2015.

Injury—Design Defect—Automobile—Jury Instruction—Consumer Expectation Test—Evidence—Causation—Other Incidents.

In this products liability action based on strict liability and negligence, defendant Ford Motor Company (Ford) appealed the trial court’s judgment entered on a jury verdict in favor of plaintiff Walker. Walker claimed to have sustained a traumatic brain injury and soft tissue neck injuries as a result of a car accident, in part because the driver’s seat in his 1998 Ford Explorer was defectively designed.

On appeal, Ford argued that the trial court’s instruction number 19 to the jury, which discusses the “consumer expectation” test, was incorrect as a matter of law. Jury instruction number 19 complied with Colorado Jury Instruction (CJI)-Civ. 4th 14:3 (2015). However, the first sentence of CJI-Civ. 4th 14:3 misapplies Colorado law. Further, because the consumer expectation test is included in the risk-benefit test instruction that was given to the jury as instruction number 19, the trial court erred by giving a separate instruction that also included the consumer expectation test. The combined instructions allowed the jury to consider the consumer expectation test twice: once in the risk-benefit test in instruction number 18, and again in instruction number 19. The consumer expectation test is not an alternative test to the risk-benefit test, but is a sub-part of that test. Because the error was not harmless, the judgment was reversed and the case was remanded for a new trial.

Ford also contended that Walker’s defect and causation evidence was insufficient. Lewis, a biomechanical engineer and expert on injury causation, testified that, if Walker’s seat back had remained upright in the accident and the seat had had an adequate headrest, Walker would not have sustained any of his more significant injuries. Walker also presented testimony of Lewis and engineer Brown to show that an alternative design could have provided better protection than the seat in Walker’s Explorer. The jury could have concluded from Lewis’s and Brown’s testimony that an alternative design was available that could have prevented Walker’s injuries, and that the Explorer’s car seat was defectively designed. The evidence also allowed the jury to determine that the car seat was the cause of Walker’s injuries. Because there was competent evidence to support the verdict, Ford was not entitled to judgment notwithstanding the verdict.

Ford further contended that the trial court erred by permitting Walker to introduce evidence of other incidents involving Ford vehicles. Evidence of similar accidents, occurrences, or injuries may be offered to refute testimony that a given product was designed without safety hazards. Evidence of prior similar incidents is relevant to show that the manufacturer had notice of an actual or potential product defect. Here, the four vehicles in the other incidents were all Ford Explorers and all appeared to have involved the same or similar seat design as the seat in Walker’s Explorer. Though Ford points to differences in the types of accidents and injuries in those other incidents, those differences went only to the weight to be given to the evidence, and not to its admissibility. Therefore, it was not error to admit this evidence of other incidents.

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

Tenth Circuit: No Speedy Trial Act Violation Where Motions Pending During Contested Period

The Tenth Circuit Court of Appeals issued its opinion in United States v. Zar on Tuesday, June 23, 2015.

Derek Zar and his mother Susanne Zar participated in a mortgage fraud scheme orchestrated by Michael Jacoby. The three were tried together and, after a three-week trial, a jury convicted Jacoby of 11 counts of wire fraud, three counts of money laundering, and two counts of bank fraud; Derek Zar of four counts of wire fraud and one count of money laundering; and Susanne Zar of three counts of wire fraud and one count of money laundering. Each defendant was sentenced to a term of imprisonment and ordered to pay restitution. They each appealed separately, but the Tenth Circuit joined the appeals.

The Tenth Circuit first considered Derek’s and Susanne’s challenges to the district court’s denial of the Zars’ joint motion to sever their trial from Jacoby’s, their joint motion to dismiss the indictment based on Speedy Trial Act violations, and their joint motion to suppress statements made to IRS agents. Because the motion to sever and the motion to dismiss were both based on Speedy Trial Act violations, the Tenth Circuit considered those first. Noting that the Speedy Trial clock is tolled when motions are pending, the Tenth Circuit initially found that motions were pending during the entire period the Zars contest was applicable to their speedy trial rights. The Tenth Circuit analyzed the district court’s rulings and found that it did not abuse its discretion in denying the severance motion, and counted only 23 days ticked off the speedy trial clock between the indictment and the trial. The district court’s denials of the motions to dismiss and to sever were affirmed.

Next the Tenth Circuit evaluated the statements the defendants made to IRS agents. Although it was somewhat concerned that the agents did not specifically announce that their questioning of the Zars was a consensual conversation, the Tenth Circuit found no error in the district court’s allowance of the testimony. The Tenth Circuit found that the statements made by the Zars to the IRS agents were non-testimonial and not barred. Susanne Zar also argued that the admission of statements Derek Zar made to an IRS agent violated her Confrontation Clause rights as stated in Crawford v. Washington. After a plain error review, the Tenth Circuit concluded that the district court’s limiting instruction sufficiently ameliorated any harm that could have come from admission of the statements.

The three defendants jointly argued that Instruction 17 incorrectly stated the elements of wire fraud by omitting an essential element, the scheme to defraud, and by adding an element which impermissibly broadened the basis for conviction. The Tenth Circuit analyzed the instruction and found that the district court correctly applied Tenth Circuit precedent in omitting the language from the instruction. The Tenth Circuit further found that the modifications to the instruction were harmless, and if they had any effect it worked in defendants’ favor. The three defendants also asserted ineffective assistance of counsel claims, which the Tenth Circuit dismissed as unripe since they had not yet been adjudicated in district court.

The defendants also all challenged their sentences, averring the increase in base offense level was unsupported and relying on Apprendi and Alleyne. The Tenth Circuit found their reliance misplaced, since none of the defendants were subject to mandatory minimum sentences. It evaluated each defendant’s sentence and affirmed each separately.

The Tenth Circuit affirmed the district court’s rulings as to each defendant.

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.