May 23, 2017

Colorado Supreme Court: No Error in Convictions for Being Accessory and Complicitor to Same Crime

The Colorado Supreme Court issued its opinion in Montoya v. People on Monday, May 15, 2017.

Extreme Indifference Murder—Self-Defense—Accessory to Crime—Invited Error.

Montoya petitioned for review of the court of appeals’ judgment affirming his convictions for attempted extreme indifference murder, reckless manslaughter, criminally negligent homicide, and accessory to crime. See People v. Montoya, No. 06CA1875 (Colo. App. Sept. 13, 2012). Montoya and his cousin were tried together for the shooting death of a woman at a party, in the course of which they each fired a number of rounds in the direction of other party-goers. In a separate appeal to the court of appeals, Montoya’s homicide convictions were initially reversed for failure to properly instruct concerning self-defense against multiple assailants, but upon remand for reconsideration in light of intervening supreme court jurisprudence, all of his convictions were affirmed, not only with regard to the disputed issue of multiple assailants but against a variety of other assignments of error as well. Montoya’s subsequent petition for a writ of certiorari was partially granted by this court.

The supreme court affirmed the judgment of the court of appeals. The court held that (1) there was sufficient evidence to support Montoya’s conviction of attempted extreme indifference murder; (2) Montoya was barred from challenging on appeal the sufficiency of the evidence supporting his conviction for being an accessory to crime, a lesser non-included offense presented to the jury at his request; and (3) Montoya’s simultaneous convictions of reckless manslaughter and accessory to crime neither merged nor required concurrent sentences.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Double Jeopardy Claims May Be Raised for the First Time on Appeal

The Colorado Supreme Court issued its opinion in Reyna-Abarca v. People on Monday, February 27, 2017.

Plain Error Review—Double Jeopardy—Lesser Included Offenses.

In these four cases, which raise the ultimate question of whether driving under the influence (DUI) is a lesser included offense of either vehicular assault-DUI or vehicular homicide-DUI, the Colorado Supreme Court addressed (1) whether a double jeopardy claim can be raised for the first time on direct appeal, and (2) what test courts should apply in evaluating whether one offense is a lesser included offense of another.

The court concluded that unpreserved double jeopardy claims can be raised for the first time on appeal and that appellate courts should ordinarily review such claims for plain error. In so holding, the court rejected the People’s contention that defendants waive their double jeopardy claims unless they raise them at trial through a Crim. P. 12(b)(2) challenge to defective charging documents.

The court further concluded that the applicable test for determining whether one offense is a lesser included offense of another is the strict elements test articulated in Schmuck v. United States, 489 U.S. 705, 716 (1989). Under this test, an offense is a lesser included offense of another offense if the elements of the lesser offense are a subset of the elements of the greater offense, such that the lesser offense contains only elements that are also included in the elements of the greater offense. Applying this test to the cases before it, the court concluded that DUI is a lesser included offense of both vehicular assault-DUI and vehicular homicide-DUI, and thus, defendants’ DUI convictions must merge into the greater offenses. The court further concluded that in not merging such offenses, the trial courts plainly erred and that reversal of the multiplicitous convictions is therefore required.

Accordingly, the court affirmed the divisions’ rulings in People v. Reyna-Abarca, No. 10CA637 (Colo.App. Aug. 1, 2013), and People v. Hill, No. 12CA168 (Colo.App. Aug. 8, 2013), that appellate courts review unpreserved double jeopardy claims for plain error, but reversed the portions of the judgments in those cases concluding that DUI is not a lesser included offense of vehicular assault-DUI, and remanded for further proceedings consistent with the opinion. Similarly, the Court reversed the portion of the judgment in People v. Medrano-Bustamante, 2013 COA 139, ___ P.3d ___, concluding that DUI is not a lesser included offense of vehicular assault-DUI and vehicular homicide-DUI, and remanded for further proceedings. The Court affirmed the judgments in those cases in all other respects, and affirmed in full the judgment in People v. Smoots, 2013 COA 152, ___ P.3d ___.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Courts Should Review Unpreserved Double Jeopardy Claims for Plain Error

The Colorado Supreme Court issued its opinion in Scott v. People on Monday, February 27, 2017.

Plain Error Review—Double Jeopardy—Lesser Included Offenses.

In this case, the supreme court reviewed two issues: (1) whether a double jeopardy claim can be raised for the first time on appeal, and (2) whether defendant William Costello Scott’s convictions for both aggravated robbery-menaced with a deadly weapon (“aggravated robbery-menaced victim”) and menacing amounted to plain error. In light of the Colorado Supreme Court’s opinion in Reyna-Abarca v. People, 2017 CO 15, ___ P.3d ___, also decided on February 27, the court concluded here, contrary to the division majority below, People v. Scott, No. 08CA2327 (Colo. App. Nov. 8, 2012), that unpreserved double jeopardy claims can be raised for the first time on appeal and that courts should ordinarily review such claims for plain error. The court further concluded, however, that in the circumstances presented here, any error that might have occurred when the trial court entered judgment on Scott’s convictions for both aggravated robbery-menaced victim and menacing was not obvious, and thus did not amount to plain error.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Court of Appeals Correctly Evaluated Unpreserved Double Jeopardy Claim for Plain Error

The Colorado Supreme Court issued its opinion in Zubiate v. People on Monday, February 27, 2017.

Plain Error Review—Double Jeopardy—Lesser Included Offenses.

In this case, the Colorado Supreme Court addressed (1) whether a defendant may raise his or her unpreserved double jeopardy claim for the first time on appeal and, if so, what standard of review applies, and (2) whether driving under revocation (DUR) is a lesser included offense of aggravated driving after revocation prohibited (aggravated DARP). In Reyna-Abarca v. People, 2017 CO 15, ¶¶ 2–3, ___ P.3d ___, also decided on February 27, the court (1) concluded that unpreserved double jeopardy claims can be raised for the first time on appeal and that appellate courts should ordinarily review such claims for plain error and (2) clarified the applicable test to be employed in determining whether one offense is a lesser included offense of another.

Applying those rulings here, the court concluded that the division in Zubiate v. People, 2013 COA 69, ___ P.3d ___, correctly (1) conducted plain error review of Zubiate’s unpreserved double jeopardy claim, and (2) determined that DUR is not a lesser included offense of aggravated DARP, although the court’s analysis differs somewhat from that of the division. Accordingly, the court affirmed the judgment of the court of appeals.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Psychiatrist’s Brief Statements Tending to Imply Guilt Harmless

The Colorado Court of Appeals issued its opinion in People v. Marko on Thursday, October 8, 2015.

First-Degree Murder—Sexual Assault—Not Guilty by Reason of Insanity—Challenge for Cause—Mistrial—Miranda—Motion to Suppress—Search Warrant—Prosecutorial Misconduct—Military—Right to Counsel—Voluntariness—Merger—Multiplicity.

The victim met with Marko after knowing him a few months through an online social network account. Marko admitted driving the victim to the mountains, where he knocked her unconscious, sexually assaulted her, blindfolded and gagged her, and cut her throat with a knife, killing her. At trial, a jury rejected Marko’s insanity defense and found him guilty of first-degree murder, sexual assault, and attempted sexual assault.

On appeal, Marko argued that the court erred in denying the challenge for cause to Juror C because Juror C made un-rehabilitated statements indicating an inability to follow the law on the insanity defense. Any error was harmless because Juror C did not serve on the jury, and Marko failed to show that he was prejudiced by it.

Marko also argued that the trial court erred in denying his motion for a mistrial after Juror M expressed concerns in front of the other jurors that Marko would be released in a short period of time if he were found not guilty by reason of insanity (NGRI). Juror M’s statements, however, did not indicate that he had any personal knowledge regarding how long those found NGRI were committed. Therefore, it could not be shown that the statements affected the verdict merely because they were improper, and the trial court did not abuse its discretion in failing to declare a mistrial.

Marko further argued that the trial court erroneously concluded that he was not in custody during the portion of the October 11 interview with the sheriff’s officers that occurred before he was advised of his Miranda rights, and thus the court erred in denying his motion to suppress the statements he made at that time. Marko was subject to restraint on his freedom of movement by virtue of his position in the military. However, because Marko was informed at the outset of the interview that he was not under arrest and was free to go at any time, he was not in custody during this portion of the interview. After Marko was advised of his Miranda rights, he did not thereafter properly invoke his right to silence by stating that he wanted to go home. Therefore, his statements were voluntary. Additionally, Marko did not invoke his right to counsel by stating he wanted an attorney only if the detective was going to administer a truth verification exam. Therefore, the trial court did not err in denying his motion to suppress.

Additionally, Marko argued that the trial court erred in not suppressing the evidence obtained from the search of his barracks room because the search was not conducted pursuant to a valid search warrant. Even if the search warrant was invalid, the law enforcement officers involved in obtaining and executing the warrant acted in an objectively reasonable manner. Therefore, the trial court did not err.

Marko also argued that the psychiatrist’s testimony violated CRS § 16-8-107(1)(a) and (1.5)(a) because the psychiatrist who performed his court-ordered sanity examination testified that Marko knew his actions were wrong rather than confining his testimony to whether Marko had the capacity to distinguish right from wrong or form the culpable mental state at the time of the offense. Evidence acquired for the first time from communications derived from a defendant’s mental processes during the court-ordered examination is admissible only as to the issue of insanity. Therefore, the psychiatrist’s statements that Marko knew the wrongfulness of his actions violated CRS § 16-8-107 and defendant’s right against self-incrimination. However, any error was harmless beyond a reasonable doubt because the other evidence regarding this issue was substantial, the psychiatrist’s comments were minimal, and the prosecution limited her comments to issues raised by the NGRI plea.

Marko additionally argued that the prosecutor made several statements during voir dire and closing argument that constituted prosecutorial misconduct. Although some of the statements were improper, they did not require reversal.

Finally, Marko argued, and the Court of Appeals agreed, that his attempted sexual assault convictions must be vacated under the doctrine of merger because the attempted sexual assault charges are lesser included offenses of the sexual assault charges. The judgment was affirmed in part, Marco’s convictions and sentences for attempted sexual assault were vacated, and the case was remanded with directions.

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

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.

Colorado Court of Appeals: Strategic Choices by Defense Attorney Do Not Constitute Ineffective Assistance

The Colorado Court of Appeals issued its opinion in People v. Newmiller on Thursday, July 3, 2014.

Ineffective Assistance of Counsel.

Defendant, his brother, and their friends went to a strip club in Colorado Springs to celebrate defendant’s birthday. When the group was leaving the club, they had an altercation with another group (victim’s group) regarding a comment someone in the victim’s group had made to a dancer. The two groups confronted each other soon after, and the victim was stabbed in the heart. He later died from his injuries.

On appeal, defendant argued that his trial attorneys were ineffective. To establish prejudice, a defendant must show a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Here, counsel’s failure to request a lesser included offense instruction or consult with defendant on the matter did not constitute ineffective assistance, because it was an adequately informed strategic choice by defendant’s attorneys. Additionally, contrary to defendant’s assertions, counsel’s failure to request an instruction on the lesser non-included offense of accessory to crime did not constitute ineffective assistance, because there was no factual basis for this requested instruction; it could be considered a strategic choice by defendant’s attorneys. Further, the level of investigation by defendant’s counsel and the subsequent decision not to retain a medical expert clearly met the standard of reasonably competent assistance. Also, defendant has not shown that, in light of all the circumstances, counsel’s failure to call a crime scene reconstruction expert was “outside the wide range of professionally competent assistance.” Finally, one attorney discussed the case with defendant on multiple occasions and this attorney’s advice to defendant regarding his right to testify was within the range of competence demanded of attorneys in criminal cases. Therefore, defendant failed to prove that his attorneys were ineffective. The district court’s order denying defendant’s Crim.P. 35(c) motion for post-conviction relief was affirmed.

Summary and full case available here.

Colorado Court of Appeals: Rioting Not Lesser Included Offense of Rioting in Detention Facility

The Colorado Court of Appeals issued its opinion in People v. Lacallo on Thursday, June 19, 2014.

Public Disturbance—Riot—Detention Facility—Lesser Included Offense—Crime of Violence—Sentence.

Defendant and other inmates refused to leave a common area of the Jefferson County jail and lockdown. Before being returned to their cells, they damaged the common area. During the disruption, visiting members of the public were evacuated from the jail.

On appeal, defendant asserted that the prosecution failed to prove a “public disturbance” under CRS § 18-9-101(2), because a detention facility is not a place open to the public. Defendant failed to preserve this argument in the trial court, so the Court of Appeals reviewed this challenge for plain error. No Colorado case has interpreted the phrase “public disturbance” under CRS § 18-9-101(2), and there are no Colorado cases that provide a commonly accepted definition for the term “public” that would have alerted the trial court to alleged error arising from defendant’s interpretation. Thus, because determining the meaning of “public disturbance” under existing Colorado authority would be difficult, “the alleged error cannot be regarded as plain or obvious.”

Alternatively, defendant contended that even if sufficient evidence supported his conviction for engaging in a riot, because it is a lesser included offense of rioting in a detention center, the convictions should merge. However, each of these two offenses requires proof of one element that the other does not. Under CRS § 18-8-211(1), the offender must have been confined in a detention facility. Under CRS § 18-9-104(1), the offender—who need not have been confined—must have caused a public disturbance. Thus, engaging in a riot is not a lesser included offense of rioting in a detention facility.

The Attorney General conceded defendant’s contention that the trial court erred by applying crime of violence for sentencing to his conviction for engaging in a riot. The trial court imposed a consecutive six-year sentence for engaging in a riot, after the prosecution told the court that this offense was a crime of violence. However, CRS § 18-9-104(1) does not define engaging in a riot as a crime of violence. Because neither an increased sentencing range nor a consecutive sentence was mandated, defendant’s entire sentence was vacated and the case was remanded for resentencing.

Summary and full case available here.