June 27, 2017

Colorado Supreme Court: No Plain Error in Allowing Jury Access to DVD Where Defense Based on Motive, Not Inconsistency

The Colorado Supreme Court issued its opinion in Martinez v. People on Monday, April 24, 2017.

Testimonial Evidence—Electronic Exhibits—Jury Deliberations—Plain Error.

The Colorado Supreme Court reviewed for plain error a trial court’s decision to allow the jury unfettered access, during its deliberations, to the out-of-court statements of three sexual assault victims. These statements were memorialized in three DVDs and three transcripts thereof, all of which had been admitted as exhibits in petitioner’s criminal trial. The court concluded that even if the trial court erred in allowing the jury unfettered access to the victims’ statements, on the facts of this case, any such error did not so undermine the fundamental fairness of the trial itself as to cast serious doubt on the reliability of petitioner’s convictions, and thus was not plain. Accordingly, the court affirmed the judgment of the court of appeals and remanded the case for further proceedings consistent with the opinion.

Summary provided courtesy of The Colorado Lawyer.

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

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

Plain Error Review—Double Jeopardy.

These two cases present the issues of whether double jeopardy claims can be raised for the first time on direct appeal and, if so, what standard of review applies. The Colorado Supreme Court addressed the same issues in four cases also decided on February 27 (consolidated as Reyna-Abarca v. People, 2017 CO 15, ___ P.3d ___). There, 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. Applying that ruling here, the court concluded that the divisions in People v. Zadra, 2013 COA 140, ___ P.3d ___, and People v. Adams, No. 12CA339 (Colo. App. Mar. 12, 2015), correctly conducted plain error review of defendants’ unpreserved double jeopardy claims and merged certain of defendants’ convictions. Accordingly, the court affirmed the judgments in both cases.

Summary provided courtesy of The Colorado Lawyer.

Tenth Circuit: Lawyer’s Job is to Object When Court Commits Error

The Tenth Circuit Court of Appeals issued its opinion in United States v. Craig on Monday, July 27, 2015.

David Craig was convicted of possession of a stolen firearm and imprisoned. Upon release, he violated conditions of his supervised release. A revocation hearing was held on August 14, 2014, and Mr. Craig stipulated to various violations of his supervised release. The court stated its proposed findings, noted the applicable statutory maximum and Guidelines range, and announced its tentative sentence. At no point did Mr. Craig attempt to make a statement despite invitations to do so from the court. Mr. Craig appealed his sentence based on the district court’s denial of an opportunity to allocute.

The Tenth Circuit evaluated Mr. Craig’s claims under plain error review, declining his invitation to subject them to de novo review. The Tenth Circuit found that Mr. Craig’s counsel could easily have requested an opportunity for Mr. Craig to allocute at multiple points in the proceeding. The Tenth Circuit rejected counsel’s argument that it would have been impolite or unprofessional for him to interrupt the judge, noting that it is a lawyer’s job to object when the court is committing error.

The district court’s sentence was affirmed.

Colorado Court of Appeals: No Preservation Requirement for Sufficiency Claims Under Colorado Law

The Colorado Court of Appeals issued its opinion in People v. McCoy on Thursday, June 18, 2015.

CRS § 18-3-404—Medical Professionals—Actors.

The prosecution charged McCoy with unlawful sexual contact against two men, P.K. and G.M., arising out of separate incidents. According to each of the victims, McCoy told them that he worked in the television industry and invited them to work for them. During the victim’s interviews and training, held at McCoy’s house, McCoy touched them and asked them sexual questions. McCoy had previously told the victims that he was a physician. A jury convicted McCoy of four counts of unlawful sexual contact.

McCoy argued on appeal that the prosecution presented insufficient evidence to sustain his convictions under CRS § 18-3-404(1)(g), because the statute proscribes only conduct occurring in a physician–patient relationship and as part of a medical exam or medical treatment. Although McCoy raised this issue for the first time on appeal, Colorado law contains no preservation requirement for sufficiency claims. Therefore, the Court of Appeals reviewed the sufficiency of the evidence de novo, and found that the statute is clear and unambiguous and is not limited to medical professionals or those who claim to be medical professionals.

Here, the jury could have concluded that the victims submitted to examinations because McCoy led them to believe the examinations were part of a hiring process. The jury could also reasonably have concluded that McCoy examined the victims for his sexual gratification, and not for bona fide medical purposes, because both victims testified that McCoy touched their intimate parts while he examined them. Therefore, the evidence was sufficient to sustain McCoy’s convictions under CRS § 18-3-404(1)(g). The Court further held that the statute’s plain terms are not unconstitutionally overbroad and vague. The judgment was affirmed.

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

Tenth Circuit: Buyer-Seller Rule Did Not Preclude Conspiracy Convictions

The Tenth Circuit Court of Appeals issued its opinion in United States v. Gallegos on Thursday, April 30, 2015.

A law enforcement investigation of Iran Zamarripa, the regional supervisor of an international methamphetamine ring, led to the arrest and trial of Simona Gallegos. Gallegos was the common law wife of a co-defendant, Pedro Juarez, and she purchased relatively small quantities of meth from Zamarripa on three occasions. Gallegos was tried with three co-defendants and ultimately found guilty of one count of conspiracy to distribute methamphetamine and possession with intent to distribute, two counts of possession with intent to distribute, and one count of use of a communication facility to facilitate the distribution of methamphetamine. Gallegos appealed.

Gallegos’ first argument on appeal was that the district court erred by admitting hearsay statements of her alleged co-conspirators without independent evidence she conspired with them. The Tenth Circuit declined to address the issue, finding Gallegos failed to point to specific statements.

Gallegos next challenged the sufficiency of the evidence supporting all four of her convictions. Gallegos contended the government’s evidence only supported that she obtained methamphetamine for personal use. However, the evidence forming the bases for her convictions showed she purchased the meth for Juarez, and on one occasion because he “ha[d] people[ ] waiting.” Gallegos contended the buyer-seller rule precluded her conviction even if she purchased the meth to distribute, but the Tenth Circuit found that contrary to its own precedent. The Tenth Circuit found the evidence that Gallegos “ha[d] people[ ] waiting” was by itself sufficient to infer an agreement to distribute methamphetamine, and further evidence that meth was delivered to Gallegos and she purchased meth on credit supported her convictions.

The Tenth Circuit also addressed Gallegos’ variance argument. Gallegos argued that the government proved only that she conspired with Juarez, and the evidence created a “spillover effect,” enabling her to be convicted of crimes for which she was not involved. After conducting a plain error review, the Tenth Circuit found little risk of the “spillover,” and certainly not enough to satisfy the third prong of the plain error test. The Tenth Circuit also found Gallegos unable to satisfy the fourth prong of the review.

Gallegos next argued that the district court erred in allowing testimony concerning a co-defendant’s post-arrest request for an attorney. The Tenth Circuit again reviewed for plain error since Gallegos failed to preserve the issue for appeal. Gallegos argued the evidence invited an inference of the co-defendant’s guilt, which was improperly imputed to her. The Tenth Circuit disagreed, finding the prosecution presented distinct evidence as to Gallegos and the other co-defendants.

The district court’s judgment was affirmed.

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.

Tenth Circuit: District Court Erred in Suggesting Offense Level Before Finding Facts

The Tenth Circuit Court of Appeals issued its opinion in United States v. Sabillon-Umana on Monday, December 8, 2014.

Elder Geovany Sabillon-Umana was convicted of drug offenses as part of a larger trafficking scheme. Because of his relatively small role in the scheme, the district court suggested that he should have a base Guidelines offense level of 32 and requested the prosecutor to justify that offense level. The prosecutor offered facts to support the offense level, telling the court that finding Sabillon-Umana responsible for 1.5 kilos of heroin and 1.5 kilos of cocaine would arrive at that offense level, and the court adopted those factual findings. Later in the proceedings, when the defendant requested a sentence reduction for compliance with the prosecution, the court rejected his request, instead finding the prosecution had authority to issue sentence reductions.

The Tenth Circuit found two errors in the district court proceedings. First, the Tenth Circuit sharply reprimanded the district court for reversing the proper order of proceedings by deciding on an offense level before finding facts. The Tenth Circuit evaluated the facts on which Sabillon-Umana’s conviction was based and found he could only be responsible for 1.5 kilos of heroin and cocaine combined, not 1.5 kilos of each, which would reduce his base offense level to 30.

Next, the Tenth Circuit found plain error in the district court’s failure to reduce the sentence due to Sabillon-Umana’s participation with the prosecution. The district court had contemplated a sentence of 72 months prior to stating it would not reduce the sentence unless the prosecution suggested it, and instead arrived at a sentence of 96 months. The Tenth Circuit found that sentencing discretion lies solely in the court.

The case was remanded for resentencing.

Tenth Circuit: Plain Error Reversal Required Due to Expert’s Impermissible Testimony Regarding Defendant’s Untruthfulness

The Tenth Circuit Court of Appeals issued its opinion in United States v. Hill on Monday, April 28, 2014.

Stanley Hill appealed his conviction of several charges related to a robbery of a bank in Tulsa, Oklahoma. Stanley Hill and his brother, Vernon Hill, were charged with bank robbery after a tracking device on stolen bills led police to Stanley’s father’s house, where Stanley and Vernon were arrested. Stanley claimed that he had spent the night at his girlfriend’s house and was sleeping at the father’s house at the time the robbery occurred. A Tulsa police officer and an FBI agent, Agent Jones, conducted a taped interview of Stanley in which he denied involvement in the robbery.

Agent Jones testified at trial as a qualified expert. His testimony discussed his theory of the case, that Stanley had been the getaway driver during the robbery. Agent Jones also testified that he had been specially trained to detect untruthfulness, and that in his opinion Stanley was not truthful during testimony. He offered several points to emphasize his opinion of Stanley’s untruthfulness.

Although a contemporaneous objection was not made to Agent Jones’ testimony, the Tenth Circuit conducted a plain error review and determined that the testimony regarding Stanley’s truthfulness was impermissible. Stanley did not argue that Agent Jones was unqualified to testify under FRE 702, but rather that the subject matter of his testimony—the credibility of another person—was outside the scope of Rule 702. The Tenth Circuit agreed, noting that such testimony usurps the function of the jury, is not helpful to the jury, and can unduly influence a jury because a credible expert holds more authority to the average juror than a defendant.

The Tenth Circuit determined that the error was not harmless. The prosecution did not have a strong case against Stanley, and much of their evidence against him hinged on the proposition that his testimony was false. The Tenth Circuit acknowledged that Stanley showed that there was a reasonable probability that he would not have been convicted without Agent Jones’ testimony. The Tenth Circuit issued a warning to the defense bar that reversal in the absence of contemporaneous objection is a rare exception rather than the rule, but Stanley satisfied all four prongs of the plain error standard and the case was reversed and remanded with instructions for vacation of the sentence and convictions.

Colorado Supreme Court: Determination that Instructional Error Did Not Constitute Plain Error Does Not Control Determination of Prejudice Because the Two Standards Differ

The Colorado Supreme Court issued its opinion in Hagos v. People on Monday, November 5, 2012.

Crim.P. 35(c) Postconviction Proceedings—Ineffective Assistance of Counsel—Plain Error Review.

The Supreme Court held that a determination on direct appeal that instructional error did not constitute plain error does not control a determination of prejudice under Strickland v. Washington, 466 U.S. 668, 684-86 (1984), because the two standards are not the same. The plain error standard requires that an error impair the reliability of the judgment of conviction to a greater degree than the Strickland prejudice standard. Hagos’s ineffective assistance of counsel claim, nonetheless, failed under the separate, fact-specific Strickland analysis. Thus, the Court affirmed the court of appeals’ judgment, albeit on different grounds.

Summary and full case available here.

Colorado Supreme Court: Plain Error Standard Differs from Standard Defined in Strickland v. Washington

The Colorado Supreme Court issued its opinion in Villareal v. People on Monday, November 5, 2012.

Crim.P. 35(c) Postconviction Proceedings—Ineffective Assistance of Counsel—Plain Error Review.

The Supreme Court, employing the reasoning of Hagos v. People, 2012 CO 63 (No. 10SC424), affirmed the judgment of the court of appeals. The Court held that a determination on direct appeal that instructional error did not constitute plain error does not control a determination of prejudice under Strickland v. Washington, 466 U.S. 668, 684-86 (1984), because the two standards are not the same. The plain error standard requires that an error impair the reliability of the judgment of conviction to a greater degree than the Strickland prejudice standard. Villarreal’s ineffective assistance of counsel claim, nonetheless, failed under the separate, fact-specific Strickland analysis.

Summary and full case available here.