May 22, 2017

Colorado Supreme Court: Allowing Jury Unfettered Access to DVD Unfairly Prejudiced Defendant

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

Testimonial Evidence—Electronic Exhibits—Jury Deliberations—Abuse of Discretion.

This case concerns the scope of a trial court’s discretion to permit, deny, or restrict the jury’s access during deliberations to a DVD containing the recorded statement of a child sexual assault victim, which DVD was admitted as an exhibit in a criminal trial. The Colorado Supreme Court concluded that the trial court did not employ the requisite caution to ensure that the DVD would not be used in such a manner as to create a likelihood that the jury would accord it undue weight or emphasis. Specifically, the trial court relied on the Colorado Court of Appeals’ analysis in People v. DeBella, 219 P.3d 390, 396-97 (Colo. App. 2009), rev’d, 233 P.3d 664 (Colo. 2010). By relying on an analysis that the supreme court later rejected, the trial court misapplied the law and abused its discretion. Moreover, because the nature of the DVD and its importance to the case’s resolution left the court with grave doubts as to the effect that unfettered access had on the verdict and the fairness of the proceedings, the court could not deem the error harmless. The court of appeals’ judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Trial Court Did Not Err in Refusing to Poll Jurors about Prejudicial News Report

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

Criminal Law—Jury Prejudice—Jury Polling— Prejudicial News Reports.

The Colorado Supreme Court determined whether a trial court abused its discretion by refusing to poll the jury about whether jurors had seen a prejudicial news report that had aired the night before and was available online. Because the trial court gave repeated, specific admonitions to jurors to avoid “newscasts” and “newspaper sites” (including on the day of the newscast), and these were the only places on which the prejudicial report was available, the court held that the trial court did not abuse its discretion when it refused to poll jurors. Therefore, the supreme court reversed the court of appeals’ judgment and affirmed defendant’s conviction.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Trial Court’s Repeated Admonitions to Jury about News Reports Presumably Heeded

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

Criminal Law—Jury Prejudice—Jury Polling—Prejudicial News Reports.

In this case, a companion to People v. Jacobson, 2017 CO 28, the Supreme Court determined whether a trial court abused its discretion by refusing to poll the jury about whether jurors had seen a news report about the case that had been posted online and ran in a local newspaper. Here, the trial court gave repeated admonitions not to seek out news about the case, including just before the newspaper released the story. Thus, the trial court did not abuse its discretion by refusing to poll the jury. Therefore, the Supreme Court reversed the Court of Appeals’ judgment and affirmed defendant’s conviction.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Failure to Properly Advise Defendant of Immigration Consequences was Deficient Performance

The Colorado Court of Appeals issued its opinion in People v. Sifuentes on Thursday, April 20, 2017.

Felony—Plea Agreement—Immigration—Deportation—Ineffective Assistance of Counsel—Prejudice.

The prosecution charged defendant with distributing and conspiring to distribute a controlled substance, class three felonies. Defendant later pleaded guilty to an added count of distribution of a schedule III controlled substance as a class four felony, in exchange for dismissal of the original charges. The trial court sentenced defendant to Community Corrections (Comcor) for five years. Comcor, however, rejected defendant when Immigration and Customs Enforcement placed him on an immigration detainer following his conviction. The trial court therefore resentenced defendant to 42 months in prison followed by three years of mandatory parole. Unbeknownst to defendant and defense counsel, the conviction triggered automatic mandatory deportation under federal law.

Defendant filed a Crim. P. 35(c) petition for postconviction relief seeking to withdraw his guilty plea on the ground of ineffective assistance of his plea counsel based on the erroneous advice regarding deportation. The postconviction court denied the petition. Although the court agreed that plea counsel failed to properly advise defendant, it determined that defendant did not suffer prejudice because due to the purported evidence against him, even if defendant had known the consequences of his plea, it would not have been rational for him to reject the plea offer. The court further concluded that even if he had established prejudice, defendant was not entitled to relief due to the circumstances of his providency hearing.

On appeal, defendant contended that the district court erred in determining that his plea counsel’s deficient performance did not prejudice him. When an alien defendant enters a guilty plea based on erroneous representations as to deportation consequences, he will in most cases be permitted to withdraw the plea. Here, defendant presented some objective corroborating evidence of his prejudice claim (e.g., his plea counsel’s testimony confirming defendant’s concerns about deportation and her erroneous advice about deportation). Although the prosecution’s case against defendant appeared to be strong, it cannot be concluded that a conviction would have resulted if defendant went to trial. The court of appeals concluded that rejecting the guilty plea offer and going to trial would have been a rational decision for defendant. Because defendant established a reasonable probability that his plea counsel’s deficient performance affected the outcome of the plea process, he was allowed to withdraw his guilty plea.

The order was reversed and the case was remanded with directions.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Any Relevance of Polygraph Examination Overly Prejudicial and Confusing to Jury

The Colorado Court of Appeals issued its opinion in People in Interest of G.E.S. on Thursday, December 15, 2016.

Dependency and Neglect—Sexual Abuse—Evidence—Psychosexual Evaluation—Polygraph Examination—Child Hearsay.

Father’s 12-year-old stepdaughter, J.O-E., made allegations of father’s inappropriate sexual behavior toward her to her therapist. She made additional allegations in a recorded forensic interview. Shortly thereafter, J.O-E. recanted her story. In the meantime, the family voluntarily cooperated with the Department of Human Services (Department) and followed the Department’s recommended safety plan, which required father to leave the family home and have no contact with his infant child G.E.S. or any of his three stepchildren. Father took a psychosexual evaluation, but because he refused to take a polygraph examination, the Department filed a dependency and neglect petition as to G.E.S. Father denied the allegations and requested a jury trial. At a pre-trial hearing, the court determined that J.O-E. was unavailable to testify, and at trial, admitted her hearsay statements without her testifying. The court also ruled that the probative value of evidence regarding the evaluation and polygraph refusal outweighed its prejudicial effect and allowed this evidence. After the jury returned its verdict, the court entered judgment adjudicating G.E.S. dependent and neglected.

On appeal, father contended that the district court erred in admitting evidence that he underwent a psychosexual evaluation and refused to undergo a polygraph examination. Under the Children’s Code, father had no duty to cooperate by completing a psychosexual evaluation and polygraph. Further, evidence of polygraph test results is per se inadmissible at an adjudicatory trial because they are not reliable. Here, the prejudicial impact of both the polygraph evidence and evidence of father’s partial cooperation with the Department’s request that he complete its evaluative processes required reversal.

Father also contended that the court erred in admitting J.O-E.’s hearsay statements. Under CRS § 13-25-129(1), an out-of-court statement made by a child describing an unlawful sexual offense, which would otherwise be inadmissible, is admissible if the court determines that (1) the time, content, and circumstances of the statements provide sufficient safeguards of reliability; and (2) the child either testifies at trial or is unavailable as a witness and there is corroborative evidence of the act that is the subject of the statements. Here, father did not challenge the court’s findings that the statements were reliable and that corroborative evidence supported J.O-E.’s statements. The Court of Appeals agreed with the district court that the Sixth Amendments’ Confrontation Clause does not extend to dependency and neglect cases, and the record supported the finding that J.O.-E. was not available to testify, because testifying would gravely harm her mental and emotional health. Thus, the court did not abuse its discretion in admitting J.O-E.’s hearsay statements.

The judgment was reversed and the case was remanded for a new trial.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Objection to Prejudicial Evidence Preserved Despite Direct Examination Testimony

The Colorado Court of Appeals issued its opinion in McGill v. DIA Airport Parking, LLC on Thursday, November 17, 2016.

Trina McGill filed a negligence claim against DIA Airport Parking after the side mirror on one of its shuttle buses hit her in the head. Before trial, McGill moved to exclude evidence of a 20-year-old conviction for check kiting, a type of check fraud. The trial court denied her motion under CRE 608(b) but did not address CRE 403. At trial, McGill introduced the check fraud evidence on direct examination. The jury returned a verdict in favor of DIA, and McGill appealed, arguing the trial court erred in admitting the evidence under CRE 608(b) and 403. DIA argued McGill could not challenge the admission because she introduced it first on direct examination.

The Colorado Court of Appeals found that invited error did not apply because McGill did not expressly acquiesce in the trial court’s ruling. Instead, the trial court ruled over her objection that the evidence was admissible, and she strategically introduced it at trial in an attempt to mitigate the damage. The court of appeals also declined to rule that she waived her right to challenge the evidence. McGill’s attempt to counter the effect of the impeachment evidence was not an intentional abandonment of her objection.

The court of appeals evaluated the U.S. Supreme Court’s ruling in Ohler v. United States, 529 U.S. 753, 755 (2000), and found the dissent by Justice Souter persuasive. Because Ohler‘s ruling did not address constitutional issues, it is not binding on state courts. Justice Souter’s dissent asserted that the majority opinion fostered unfairness at trial. The court of appeals agreed, and ruled that when a party has objected to the admission of impeachment evidence, it is unnecessary and unfair to force her to choose between preserving that objection for appeal and pursuing the most advantageous trial strategy. The court therefore concluded that McGill could challenge the trial court’s ruling on appeal.

The court next addressed McGill’s argument that the trial court erred by admitting the underlying facts of her check fraud conviction under CRE 608(b) because the fact that she passed bad checks many years ago was not probative of her character for truthfulness. The court of appeals disagreed, finding that the small amount of the crime and the length of time intervening went to the weight of the evidence, not the admissibility. The court found no error.

The court turned to McGill’s argument that the trial court erred in not evaluating the evidence under CRE 403. The court found that although the trial court did not make express findings, there was nothing to suggest that it had not conducted a CRE 403 analysis. The court noted that because McGill did not argue on appeal that the evidence was inadmissible under the rule, it would not address that argument.

The trial court’s judgment was affirmed.