August 21, 2017

Colorado Supreme Court: Unfettered Access to Crime Scene Video Allowed Because it Does Not Present Great Risk of Undue Influence

The Colorado Supreme Court issued its opinion in Rael v. People on Monday, June 5, 2017.

Electronic Exhibits—Crime Scene Videos—Statements by the Defendant—Jury Deliberations.

This case required the supreme court to decide whether it was reversible error for a trial court in a criminal case to provide the deliberating jury with “unfettered and unsupervised access” to a crime scene video and a video of a police interview of the defendant. A division of the court of appeals concluded that the trial court did not err in either regard. In reaching this conclusion, the division relied on DeBella v. People, 233 P.3d 664, 665–66 (Colo. 2010), in which the court considered the propriety of a trial court’s order allowing the jury unfettered access to the videotapes of a child sexual assault victim’s out-of-court interviews. Although the supreme court agreed that the trial court retains discretion regarding juror access to the videos at issue, the court disagreed with the division that DeBella provides the appropriate framework for resolving this case.

The court nevertheless concluded that the division reached the correct result, namely, that the trial court did not abuse its discretion in allowing the jury unfettered access to those videos during deliberations. In arriving at this conclusion, the court observed that the non-testimonial crime scene video did not present the same risk of undue emphasis as do videos documenting witnesses’ out-of-court, testimonial statements (like the videotapes at issue in DeBella). The court likewise observed, consistent with well-established precedent, that a defendant’s confession is not subject to the same limitations during deliberations as the out-of-court statements of other witnesses. Accordingly, the court affirmed the judgment of the court of appeals and remanded the case for further proceedings consistent with this opinion.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Witness’s Vague and Fleeting Reference to Prior Criminal Activity Did Not Undermine Fairness of Trial

The Colorado Court of Appeals issued its opinion in People v. Salas on Thursday, May 18, 2017.

Sexual Assault on a Child—Due Process—Mistrial—Prior Criminality—Videotaped Interview—Inconsistent Statements—Sexually Violent Predator—Findings of Fact.

A jury found Salas guilty of sexual assault on a 9-year-old child by one in a position of trust and sexual assault on a child, pattern of abuse. The trial court’s order found him to be a sexually violent predator (SVP).

On appeal, Salas contended that the trial court abused its discretion and violated his rights to due process, a fair trial, and an impartial jury by denying his motion for a mistrial after victim’s grandmother testified by giving a nonresponsive answer to a question which, Salas contended, impermissibly referred to prior criminality. Because grandmother’s remark was fleeting, minimally prejudicial, and immediately followed by a curative instruction, the trial court did not abuse its discretion when it denied Salas’s motion for a mistrial.

Salas next contended that the district court abused its discretion when it denied his request to play a videotaped interview of grandmother. Here, defense counsel sufficiently confronted grandmother with her inconsistent statements and she either explained or conceded them. Thus admission of the videotape would have been cumulative, and the trial court did not abuse its discretion.

Salas also argued that the trial court’s determination that he qualified as an SVP failed to satisfy statutory and due process requirements because the court never made specific findings of fact in support of its determination as required by C.R.S. § 18-3-414.5(2). While the record evidence might support a conclusion that Salas either promoted or established a relationship with the victim for purposes of sexual victimization, the court did not make specific findings on this matter, and other evidence might lead to the opposite conclusion. This error was substantial and cast serious doubt on the reliability of the SVP designation.

The judgment and sentence were affirmed. The SVP designation was vacated and the case was remanded for the trial court to make specific findings of fact regarding Salas’s SVP designation.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Sentence Enhancement Based on Victims’ Ages Not Structural Error

The Colorado Court of Appeals issued its opinion in People v. Ewing on Thursday, January 26, 2017.

Leon Ewing was accused in March 2013 of sexually assaulting two brothers, M.B. and J.B., during the summer of 2008 while he was living in their family’s home. The boys were around 11 and 13 at the time of the assaults. The allegations arose in May 2011, and although they were investigated, Detective Nicholas Kundert could not locate Ewing until December 2012. After Ewing was located, he was charged with nine class 3 felony counts of sexual assault on a child by one in a position of trust—eight pertaining to the crimes against J.B. and one pertaining to the crimes against M.B. For the eight charges concerning J.B., Ewing was charged with one count of sexual assault on a child by one in a position of trust (pattern of abuse), and one count of sexual assault on a child by one in a position of trust (victim under 15 years old) for each of four separate incidents. The charge pertaining to M.B. was one count of sexual assault on a child by one in a position of trust (victim under fifteen 15 old). The complaint also included three crime of violence counts.

The jury convicted Ewing of two counts of sexual assault on a child by one in a position of trust — one against J.B. and one against M.B. It specifically found that the assault against J.B. was not committed as part of a pattern of abuse. The jury made no findings regarding J.B.’s and M.B.’s ages at the time of the assaults. At sentencing, the court entered convictions and sentences for two counts of class 3 felony sexual assault on a child by one in a position of trust (victim under 15 years old). Sexual assault on a child by one in a position of trust is typically a class 4 felony. However, the offense is elevated to a class 3 felony if the victim is less than 15 years of age.

On appeal, Ewing contended that because the jury made no finding as to the ages of the victims at the time of the assaults, the district court erred in entering convictions and sentences for a class 3 felony. The court of appeals characterized the elevation of the offense to a class 3 felony as a sentence enhancer. The court held that although the district court erred in enhancing Ewing’s sentence without submitting the question to the jury, the error was harmless. The court found no reasonable possibility that the jury could have concluded that the victims were 15 or older at the time of the offenses. The information alleged that the offenses occurred between May 1, 2008, and August 31, 2008. Because each victim testified to his birthday, the jury was presented with undisputed evidence that the boys were not yet 15 years old at the time of the assaults. The Colorado Court of Appeals found no plain error in the district court’s sentence enhancement.

Ewing also argued that his recross-examination of Detective Kundert was impermissibly limited by the trial court. During Detective Kundert’s testimony, defense counsel asked to recross the detective “on biases,” arguing that the prosecution brought up “witness bias and/or interviewer/interrogative bias,” which had not been previously raised on direct or cross-examination. Defense counsel did not, however, raise a Confrontation Clause issue. The court denied the request, stating that the issue was extrinsic and had already been addressed. Because Ewing did not raise the Confrontation Clause issue in the trial court, the court of appeals reviewed for plain error and found none. The court found that the trial court’s decision to deny the recross was not in error because any information that could potentially have been elicited was only marginally relevant. Even assuming error, the court of appeals did not find that it rose to the level of plain error.

The court of appeals affirmed Ewing’s convictions and sentences.

Colorado Court of Appeals: “Fruit of the Poisonous Tree” Doctrine Did Not Apply to Statements

The Colorado Court of Appeals issued its opinion in People v. Archuleta on Thursday, January 26, 2017.

On December 5, 2012, Roger Louis Archuleta and his roommate in the housing facility left Archuleta’s apartment around 7 a.m., as captured by surveillance video. The roommate returned home around noon, and Archuleta returned later, remaining home the rest of the night. That night, other residents of the housing facility reported hearing loud noises. Around 4 a.m. on December 6, the surveillance video showed Archuleta dragging his roommate’s body down the hall, then back to his room. Archuleta then informed a residential aide at the housing facility that he had a body in his apartment that needed to be removed.

When the police arrived at defendant’s apartment, they found the deceased victim lying just inside the door, covered by a blanket. The police observed the victim had blood on him and appeared to have been beaten. They also found defendant seated on a mattress in the living room, apparently highly intoxicated and with a substantial amount of dried blood on his face and hands. There was blood spattered on all four walls in the apartment bedroom, which the prosecution’s expert testified was consistent with an altercation between two people.

The police took defendant to the police station; advised him of his Miranda rights under and interviewed him. They also took pictures of him, collected his clothing, and took swabs of suspected blood. Defendant ended the interview at the police station by indicating he wanted to speak to an attorney. Without obtaining a court order or defendant’s consent, police took defendant to the hospital, where three samples of his blood were drawn at one hour intervals. The court later held that the blood draw was unconstitutional; that holding was not challenged on appeal. Defendant was charged with second degree murder and first degree assault, and the jury found him guilty as charged.

Defendant appealed, arguing his convictions must be reversed because under the fruit of the poisonous tree doctrine, the trial court erred by failing to suppress statements he made in the course of his transport to and detention at the hospital for his blood draws, and also because there were errors in the jury instructions and the trial court improperly elicited and admitted testimony from the prosecution’s blood spatter analysis expert that his conclusions were independently verified. The court of appeals addressed the fruit of the poisonous tree doctrine argument first.

The court found no error in the trial court’s admission of defendant’s statements to police officers while at the hospital and in transit. Defendant had made numerous rambling statements to the police while at the hospital, including several comments that seemed to relate to the victim’s death. At one point, the officer left but a recorder was left on in the room. Defendant was heard saying, “Shit. [Victim’s name]. You’re dead, you’re dead brother. I killed you.” The trial court held that the fruit of the poisonous tree was the result of the blood draw, not the statements. The court noted that it was entirely speculative whether defendant would have continued to make statements while at the police station, and the vast majority of his statements were spontaneous. The court of appeals agreed, noting that the exclusionary rule was properly applied to the blood draw results, and that the statements were not fruit of the poisonous tree. The court found that defendant failed to establish a causal connection between the illegality of the warrantless blood draws and the challenged statements.

Defendant also contended the jury instruction defining “cause” misstated the law because it instructed the jury that the victim’s preexisting physical condition was not a defense to the murder and assault charges. He argues that while a victim’s preexisting conditions generally do not impact the causation element, they are relevant to the culpable mental state. The court of appeals disagreed. The court held that because the trial court’s instruction that “it is no defense that the victim was suffering from preexisting physical ailments, illnesses, injuries, conditions or infirmities” was not a stand-alone instruction but rather was embedded into the definition of “cause,” there was no error. The court noted that it is no defense that a victim who had been in good physical condition would have survived an attack; a defendant cannot be excused from guilt and punishment because his victim was weak and could not survive the torture he administered. The court rejected defendant’s contention that the instruction misstated the law.

The defendant also asserted that the trial court plainly erred by giving an erroneous elemental instruction for first degree assault and admitting hearsay testimony from the prosecution’s blood spatter analysis expert. The court of appeals again disagreed, finding that the instruction tracked the statutory language and was therefore sufficient, and the blood spatter analyst’s testimony that someone else always reviews his work was a general statement that did not rise to the level of plain error.

The court of appeals affirmed defendant’s convictions.

Colorado Court of Appeals: Defendant’s Request for Jury Instruction on Lesser Nonincluded Offense Does Not Concede Guilt

The Colorado Court of Appeals issued its opinion in People v. Geisick on Thursday, July 28, 2016.

Benjamin Geisick got into an argument with his girlfriend at a motel, and the motel manager called the police. The motel manager pointed Geisick out to an officer, who called to Geisick and tried to talk to him. Geisick attempted to flee, and the officer and Geisick engaged in a struggle. Geisick was ultimately arrested and charged with second degree assault on a peace officer and attempting to disarm a peace officer. He was also charged with possession of drug paraphernalia based on a methamphetamine pipe officers found in his pocket.

At trial, the officer and Geisick offered very different accounts of the altercation. At the close of evidence, Geisick asked the trial court to instruct the jury on two lesser non-included offenses, resisting arrest and obstructing a peace officer. The jury found Geisick not guilty of assault and attempting to disarm but guilty of resisting arrest, obstructing a peace officer, and possession of drug paraphernalia. He was convicted and sentenced, and he appealed.

On appeal, Geisick first argued that the trial court erred in denying his challenge for cause of one potential juror, forcing him to use a peremptory challenge. The Colorado Court of Appeals, following the Colorado Supreme Court’s opinion in People v. Novotny, determined that Geisick failed to show prejudice since the juror was dismissed and did not contribute to the guilty verdict.

Next, Geisick argued that the trial court erred in admitting hearsay evidence about the physical altercation with the officer. An officer who interviewed the officer involved in the altercation testified as to what he heard in the interview. The court of appeals concluded that any error in admitting the testimony was harmless. At trial, Geisick objected to the interviewing officer’s testimony, and the trial court agreed that the testimony was potentially impermissible hearsay because the officer was testifying as to the other officer’s truthfulness. However, the court allowed the testimony under the excited utterance and prior consistent statement exceptions to the hearsay rule. The court of appeals expressed doubt that the entirety of the altercating officer’s interview could be admitted as an excited utterance, and, because the altercating officer was not cross-examined about the interview, it could not be admitted as a prior inconsistent statement. Nevertheless, the court found that any error was harmless because the altercating officer described the incident in detail, the interviewing officer was not an eyewitness, the jury was aware that the interviewing officer was only testifying as to what happened in the interview, and it was unlikely that the interviewing officer’s testimony rendered the altercating officer’s account of the incident more credible since the jury acquitted Geisick on the assault and attempting to disarm charges.

Geisick next contended that the evidence was insufficient to support the convictions on the lesser non-included offenses. The court of appeals found that by proffering the lesser charges, he impliedly assented to the sufficiency of the evidence to support those charges. The court disagreed with a prior panel ruling on the same issue, which decided that the defendant had invited any error. The court of appeals found that by offering the instructions on the lesser non-included offenses, the defendant did not admit guilt on the charges, so invited error was inappropriate. However, because the defendant had to represent to the court that the non-included charges could be applicable, he affirmatively waived any argument about the sufficiency of the evidence.

The court of appeals found no error to support Geisick’s cumulative error arguments, and affirmed his convictions and sentence.

Tenth Circuit: Confrontation Clause Only Implicated when Statement Admitted to Prove Truth of Matter Asserted

The Tenth Circuit Court of Appeals issued its opinion in United States v. Ibarra-Diaz on Monday, November 9, 2015.

An undercover detective with the Wichita Police Department set up a methamphetamine purchase from Jesus Ibarra-Diaz through a confidential informant (CI). The detective met Ibarra-Diaz and his girlfriend, Ana Valeriano-Trejo, in a shopping mall parking lot and got in their vehicle. Ibarra-Diaz indicated that another accomplice, Ricardo Estrada, would bring the drugs. When Estrada arrived, he recognized the detective and informed Ibarra-Diaz and Valeriano-Trejo that he was a cop. The detective got out of Ibarra-Diaz’s vehicle and confronted Estrada, and Ibarra-Diaz started to drive away, at which point police officers surrounded his vehicle and arrested him and Valeriano-Trejo.

After searching the two vehicles, officers found suspected methamphetamine in the wheel well of the vehicle Estrada was driving. Estrada, who was in a patrol car, voluntarily spoke to officers, telling them that there was over a pound of meth at the house he shared with Ibarra-Diaz and Valeriano-Trejo. Officers obtained a warrant and searched the residence, finding several pertinent items, including approximately one pound of meth in a container in the laundry room. A federal grand jury indicted the three co-defendants on one count of possession with intent to distribute a substance containing 50 grams or more of methamphetamine. Ibarra-Diaz exercised his right to a jury trial. He was convicted and sentenced to 188 months’ imprisonment.

Ibarra-Diaz appealed, raising several contentions of error. First, he argued that the district court violated his Confrontation Clause rights when it erroneously admitted several hearsay statements. Next, he argued he was denied a fair trial when the detective was allowed to present inflammatory testimony. Third, he contended that certain evidence rendered the indictment duplicitous and therefore denied him a fair trial. Finally, he contended there was insufficient evidence to support his conviction. The Tenth Circuit rejected each argument in turn, noting as an initial matter that all of Ibarra-Diaz’s arguments except his sufficiency challenge were raised for the first time on appeal and were subject only to plain error review.

Ibarra-Diaz argued that the district court erred in admitting through the detective’s testimony several statements of the CI or Mr. Estrada. The Tenth Circuit analyzed each in turn, reminding Ibarra-Diaz that a statement is only testimonial when it is admitted to prove the truth of the matter asserted. Ibarra-Diaz first argued it was error for the detective to testify that the narcotics investigation commenced because a CI gave information to the detective. The Tenth Circuit found no error, since the trial court stopped the detective’s testimony before he could reveal what he learned from the CI. Next, Ibarra-Diaz argued the court erred in allowing the detective to testify that the CI was afraid of Ibarra-Diaz. Because the detective’s remark was stricken from the record and the court gave the jury two separate instructions to consider only testimony that was not stricken, there was no error. Third, Ibarra-Diaz argued it was error for the detective to testify that the CI told him Ibarra-Diaz had “some dope” for sale. The Tenth Circuit found no error because the statement in question was not hearsay since it was offered for a different purpose than to prove the truth of the matter asserted. The Tenth Circuit similarly found no Confrontation Clause violations for the fourth and fifth points of error, since the actions in question were not statements. The next statement was also not hearsay because it was offered to explain the detective’s conduct. Ibarra-Diaz’s seventh challenge similarly failed because the detective was not reciting statements. The Tenth Circuit found that the eighth statement was also not offered to prove the truth of the matter asserted.

Ibarra-Diaz’s final Confrontation Clause challenge concerned the detective’s testimony that Estrada told him there was additional methamphetamine at the house. The government conceded that the statement was testimonial and violated the Confrontation Clause, but the Tenth Circuit did not find plain error because the admission did not substantially affect the outcome of the proceeding because even without the statement, overwhelming evidence supported Ibarra-Diaz’s conviction.

Ibarra-Diaz argued that some of the detective’s testimony was inflammatory and unduly prejudiced the jury. Ibarra-Diaz argued the statements unfairly painted a picture of him as a dangerous drug dealer. The Tenth Circuit elected to consider Ibarra-Diaz’s arguments as FRE 403 challenges, and found that the testimony was mostly irrelevant and its probative value was outweighed by the danger of confusing the issues or misleading the jury. However, the Tenth Circuit found that even if the district court erred, the error was not clear or obvious, and any error did not substantially prejudice Ibarra-Diaz. The Tenth Circuit noted that the evidence tended to show that the detective was afraid of Mr. Estrada, not Ibarra-Diaz, and the testimony had no effect on Ibarra-Diaz’s substantial rights.

The Tenth Circuit then turned to Ibarra-Diaz’s contention that he was deprived of a unanimous jury verdict by a duplicitous indictment. Ibarra-Diaz acknowledged that the indictment was not duplicitous on its face, but argued that the presentation of the two separate bundles of methamphetamine, taken from the vehicle and the house, rendered the indictment duplicitous because there were two factual presentations for the same offense. The Tenth Circuit declined to consider the issue, which was raised for the first time on appeal.

Finally, Ibarra-Diaz challenged the sufficiency of the evidence. At trial, the prosecution advanced two theories of Ibarra-Diaz’s guilt: as a complicitor and as a principal. Ibarra-Diaz confined his sufficiency challenge to the aiding and abetting theory, notably not challenging the theory of him as principal. The Tenth Circuit found this fatal to his arguments. Because there was more than enough evidence to support Ibarra-Diaz’s convictions as a principal, there was no need to address the aiding-and-abetting theory. However, the Tenth Circuit found ample evidence to support the complicitor theory as well.

The Tenth Circuit affirmed the district court.

Tenth Circuit: Garcetti/Pickering Test Applies to Pretextual Termination of Police Officer

The Tenth Circuit Court of Appeals issued its opinion in Seifert v. Unified Government of Wyandotte County/Kansas City, Kansas on Friday, February 27, 2015.

Max Seifert was a reserve deputy for the Wyandotte County Sheriff’s Department in Kansas. In July 2003, Barron Bowling was involved in a minor car accident with a DEA agent, after which the DEA agent and another agent pulled Bowling from the car and pummeled, kicked, and insulted him while he was forced to lay shirtless on hot pavement. Seifert, then a detective with the Kansas City, Kansas Police Department (KCKPD), investigated the incident and documented the agents’ misconduct, despite pressure from others in the KCKPD to cover up the facts. He testified at Bowling’s criminal trial in 2005, and was forced into retirement from the KCKPD later that year.

Seifert then received a commission as a reserve deputy with the Wyandotte County Sheriff’s Department (WCSD). From January 2006 to June 2009, he assisted the WCSD with criminal investigations to satisfy his requisite 16 hours per month of volunteer time. In June 2009, KCKPD and the Unified Governments settled their claims with Bowling, and five days later, Seifert was removed from investigations by the WCSD. Seifert’s supervisor, undersheriff Roland, informed Seifert that the Wyandotte County District Attorney and an AUSA refused to accept cases involving Seifert because of concerns about his credibility. Roland also informed Seifert that by department rule he could not continue his work as a reserve deputy while simultaneously maintaining a civilian position in the jail. Seifert met with the police captain shortly thereafter, who told him there was no such rule precluding dual roles. Seifert also encountered the DA, who relayed it was not his office that had problems with Seifert but people in other jurisdictions.

In early 2010, the reserves supervisor asked Roland if he could have Seifert conduct training of other officers, since there was no other reserve work, but Roland would not allow it, citing the credibility issue. The trial of Bowling’s claims with the remaining defendants began on March 1, 2010, and Seifert testified on March 4 and 9. On April 8, 2010, the trial concluded. Five days later, Seifert received a memorandum signed by Roland and the reserves supervisor with Sheriff Ash copied, stating Seifert’s service as a deputy was no longer needed.

Seifert brought claims in federal district court under §§ 1983 and 1985 and under Kansas state law, all of which alleged that the actions against him were taken to deter him from testifying for Bowling or punish him for doing so. His § 1983 claims alleged defendants’ actions violated his First Amendment rights, and the § 1985 claims violated that statute’s prohibition against conspiracies to deter witnesses from testifying. The district court granted defendants’ motion to dismiss based on the two-year time bar in §§ 1983 and 1985 and granted summary judgment to defendants on all remaining claims. Seifert appealed.

The Tenth Circuit first evaluated the 2014 Supreme Court decision in Lane v. Franks, 134 S. Ct. 2369 (2014), which evaluated free speech concerns in the context of a government employee testifying as a citizen based on events discovered while in the employee’s official capacity. Turning to the instant case, the Tenth Circuit applied the five-pronged Garcetti/Pickering test. Defendants disputed the first, fourth, and fifth prongs, and the Tenth Circuit analyzed them in turn. Lane directly impacted the first prong, whether the speech was made pursuant to the employee’s official duties. Plaintiff’s testimony in this case was protected speech, because he was testifying as a citizen about matters that concerned his work but were not part of it. Although police officers routinely testify as part of their work, plaintiff’s testimony in the Bowling case was different from routine testimony given by police officers at standard trials. The Tenth Circuit found that plaintiff satisfied the first prong.

Since the second and third prongs were not in dispute, the Tenth Circuit turned to the fourth prong—whether the protected speech was a motivating factor in the adverse employment action. The Tenth Circuit found the timing suspicious for both of plaintiff’s adverse employment actions. Likewise, it found defendants’ proffered excuse, i.e., plaintiff’s “Giglio problem,” not credible because the adverse order involving Seifert was remote in time, Seifert had testified in several matters since then, Roland had a similar adverse order that did not affect his employment, the impeachment evidence against Seifert would not be significantly helpful to defense counsel, and it likely would not matter at all in state court.

The Tenth Circuit next evaluated the fifth prong, whether defendant would have reached the same employment decision regardless of the testimony. The Tenth Circuit found that plaintiff satisfied this prong as well, as defendant’s proffered explanations for termination of Seifert were pretextual as explained in the analysis of the fourth prong. The Tenth Circuit therefore reversed summary judgment on plaintiff’s § 1983 claim against the Unified Government. However, the Tenth Circuit  affirmed qualified immunity against Roland and Ash individually, as they could not reasonably have been expected to know the impact of Lane on their actions as employers since the actions predated Lane by several years.

Turning next to the § 1985 claim, the Tenth Circuit found sufficient evidence that Seifert was punished for testifying in the Bowling matters, and reversed on this claim. Because Roland and Ash did not raise individual qualified immunity arguments, the Tenth Circuit did not evaluate them. Finally, the Tenth Circuit affirmed the district court’s dismissal of Seifert’s state law claims, finding a sufficient remedy existed in federal court.

The judgment was affirmed in part, reversed in part, and remanded. Plaintiff’s motion to seal was granted.

Colorado Court of Appeals: Defense Counsel Waived Confrontation Clause Claim by Eliciting Testimonial Statements

The Colorado Court of Appeals issued its opinion in People v. Merritt on Thursday, September 25, 2014.

Confrontation Clause—Autopsy Report—Testimonial.

A hotel desk clerk found Welch’s body in the room where she had lived for about five years. Her throat had been cut and a large amount of blood was visible on her body and on the bed beneath her. Defendant, a security guard at the hotel, was charged with her death. He was found guilty of second-degree murder and was sentenced to thirty-six years in the custody of the Department of Corrections.

On appeal, defendant alleged that the court violated his rights under the Confrontation Clause by admitting an autopsy report prepared by a doctor who was not present at trial. Dr. Lear-Kaul performed an autopsy and authored a report detailing her findings and conclusions regarding the cause and manner of Welch’s death. Because Dr. Lear-Kaul was on maternity leave during the trial, her supervisor, Dr. Dobersen, testified regarding the autopsy report and the cause of death.

Given the state of the body, the nature of the crime scene, and the statutorily mandated cooperation between the coroner’s office and the district attorney’s office, it was reasonable for Dr. Lear-Kaul to assume that the report containing her findings and conclusions would be used in the eventual prosecution of a murder suspect. Therefore, the statements were testimonial. However, by asking Dr. Dobersen questions about alternative causes of death, which relied on facts contained in the autopsy report, defendant’s counsel intentionally opened the door on a particular line of questioning and effectively waived the right to confrontation. The judgment was affirmed.

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

Tenth Circuit: No Confrontation Clause Violation for Testimony of Anonymous Confidential Informants

The Tenth Circuit Court of Appeals issued its opinion in United States v. Gutierrez de Lopez on Friday, August 1, 2014.

Maria Letitia Gutierrez de Lopez (Gutierrez), along with co-defendant Jesus Cabral-Ramirez (Cabral), was caught attempting to transport illegal aliens from El Paso, Texas to Denver, Colorado by federal law enforcement officers as part of a sting operation. In 2010, FBI and Border Patrol agents initiated “Operation Desert Tolls,” a joint investigation into alien-smuggling operations in New Mexico, Texas, and Colorado. In June 2011, agents apprehended “John Smith,” who agreed to become an informant for the FBI. In November 2011, Smith was contacted by Cabral, who offered to put Smith in touch with Gutierrez to “arrange for work” smuggling undocumented aliens away from the border. Gutierrez called Smith regarding the transport of a person later identified as Eneldo Valenzuela-Carrillo. The government recorded various conversations between Gutierrez and Smith and Cabral and Smith regarding the transport and payment. On November 21, 2011, Smith, Cabral, and Gutierrez began the transport of Valenzuela-Carrillo. Gutierrez picked up the payment money for the transport at a Walmart money center and distributed it to herself, Smith, and Cabral. However, federal agents arranged for Gutierrez’s vehicle to be stopped south of Santa Fe, where they took Valenzuela-Carrillo and another suspected alien into custody. Gutierrez was not arrested at that time.

In May 2012, Gutierrez was indicted by a federal grand jury on one count of conspiring to transport undocumented aliens, and she was arrested by FBI agents in June 2012. She pled not guilty. At trial, the government sought to prove that Valenzuela-Carrillo was unlawfully present in the United States, but they had deported him prior to trial, so they introduced testimony from Senior Border Patrol Agent Knoll instead to prove Valenzuela-Carrillo’s status as an undocumented alien. The government also used Knoll’s testimony to support their theory that Gutierrez intended to “further” Valenzuela-Carrillo’s illegal presence by transporting him away from the border. Over the defense’s objections, Knoll provided expert testimony on the alien smuggling trade. The government also offered testimony from two confidential informants, who requested anonymity because of the involvement of a Mexican drug cartel’s connection to the case. The two witnesses, who testified as “John Smith” and “James Jones,” testified regarding their roles in arranging transportation and payment with Gutierrez. The government supplied background information including criminal history, compensation figures for cooperating with the FBI, and immigration status, but refused to disclose their true identities.

Gutierrez was convicted as charged. She appealed, contending that the district court erred in allowing (1) Knoll to testify regarding Valenzuela-Carrillo’s immigration status in violation of the Confrontation Clause and Federal Rules of Evidence regarding hearsay; (2) Knoll to offer expert testimony unhelpful to the jury; and (3) the two confidential informants to testify anonymously in violation of the Confrontation Clause. The Tenth Circuit addressed each claim in turn.

At trial, Knoll testified that he personally retrieved the two individuals from Gutierrez’s vehicle for processing. When he could not remember their names, the prosecution briefly showed him their immigration files to refresh his memory. Defense counsel objected, concerned that Knoll would introduce evidence from these forms regarding the two individuals’ immigration status, but the district court allowed the prosecution to show Knoll the files. On appeal, Gutierrez argued that this violated FRE 602 regarding personal knowledge, but the Tenth Circuit disagreed, finding that Knoll’s testimony supported a conclusion that he had personal knowledge of the immigration status of the two aliens. Gutierrez also argued that Knoll’s testimony violated the Confrontation Clause, but again the Tenth Circuit disagreed because Knoll was present at trial and defense had the opportunity to cross-examine him.

Next, Gutierrez asserted that Knoll’s testimony was unhelpful to the jury. Before trial, defense moved in limine to exclude Knoll’s proffered expert testimony on several grounds, but the district court denied the motion, reasoning that Knoll was qualified to testify as an expert due to his experience as a senior border patrol agent, and the testimony would be reliable and helpful to the jury. Defense counsel again objected at trial under FRE 702(a)’s helpfulness standard. The Tenth Circuit reviewed the district court’s decision to allow the testimony and found no abuse of discretion. The Tenth Circuit opined that Knoll’s testimony would allow insight into the alien smuggling trade and the function and locality of border patrol agents that the average juror would not have, and affirmed the district court.

Finally, turning to the testimony of the confidential informants, the Tenth Circuit found ample reason for protecting their identities. The government requested anonymity for security reasons, worried that if the names were released in open court, that information would make it back to the Mexican drug cartels to which the informants were connected. The government also noted that its investigation was ongoing and at least one of the informants would continue to provide information. The Tenth Circuit agreed with Gutierrez that the government failed to make an adequate showing of the need for secrecy, since the government’s assertions of risk to the informants were generalized statements that anyone who testifies against a cartel faces danger. However, despite the government’s inadequate showing of the need for secrecy, the Tenth Circuit ruled that Gutierrez was provided ample information for Confrontation Clause purposes, particularly because the two informants testified in person and the government provided significant impeachment material. The Tenth Circuit determined that any error resulting from the insufficient showing of the need for secrecy was harmless in light of Gutierrez’s adequate ability to cross-examine and impeach the witnesses.

Gutierrez’s conviction was affirmed.

Colorado Court of Appeals: Codefendant’s Guilty Plea Cannot Be Used as Evidence of Defendant’s Guilt

The Colorado Court of Appeals issued its opinion in People v. Rios on Thursday, July 17, 2014.

Second-Degree Murder—First-Degree Assault—Jury Instructions—Plea Agreement—Refusal to Testify—Use of Physical Force—Combat-by-Agreement—Self-Defense.

A fight between rival gangs resulted in the death of a 16-year-old (victim) after Lakiesha Vigil, a member of defendant’s gang, drove her car into a crowd of people who had moved their fight to a driveway. She hit the victim, pinning his upper torso against the wall. Vigil then drove the car out of the driveway. It was unclear whether defendant and/or defendant’s cousin, Anthony Quintana, hit the victim with a bat a few times before getting into Vigil’s vehicle. The victim died at the hospital several hours after the incident. Defendant was convicted of second-degree murder and first-degree assault.

On appeal, defendant argued that the trial court erred in failing to instruct the jury not to consider Quintana’s refusal to testify as evidence of his guilt, and erred in informing the jury about Quintana’s plea agreement. Quintana had entered into a plea agreement whereby he agreed to testify against defendant. However, when called to testify against defendant, Quintana refused to testify. The trial court thereafter erred by instructing the jury regarding Quintana’s guilty plea, because it may have given rise to an impermissible inference of defendant’s guilt, which was not cured by any limiting language. Further, this error was not harmless beyond a reasonable doubt. The Court of Appeals reversed defendant’s convictions, and the case was remanded for a new trial.

Defendant also argued that the trial court erred in instructing the jury on the use of physical force as a self-defense. The trial court erred in instructing the jury on the provocation exception to self-defense, because the evidence did not warrant giving these instructions. Accordingly, on retrial, if the same or similar evidence is presented, the trial court should not instruct the jury on the provocation exception to self defense.

Finally, the court’s combat-by-agreement instructions failed to instruct the jury that the prosecution had the burden of proving beyond a reasonable doubt mutual combat has been established. If this error arises on retrial, it also must be corrected.

Summary and full case available here.

Colorado Court of Appeals: Witness’s Factual Observation Admissible Despite Use of Word “Guilty” to Describe Defendant’s Appearance

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

Discovery—Sanctions—Due Process—Relevant—Evidence—Ultimate Issue—Testimony—Summary Characterization—Hearsay—Bias.

Defendant attended a party in his apartment complex that was hosted by a couple he did not know. At least two children, including the 7-year-old victim, C.L., also were present. Defendant was asked to leave the party when someone observed him acting inappropriate with C.L. After speaking with C.L., the responding officer and a forensic interviewer determined that defendant had behaved inappropriately with her. Defendant subsequently was found guilty of sexual assault on a child.

On appeal, defendant asserted that the trial court erred by refusing to sanction the prosecution for withholding, until just before trial, the fourth interrogation of defendant, and for misrepresenting the content of the interrogation. However, defendant did not suffer any prejudice resulting from the late disclosure. Defendant received the evidence before the trial began, he was offered additional time to effectively review it but refused a continuance, and he was able to use the information during cross-examination of the detective. Additionally, the late disclosure was not willful. Hence, the trial court did not abuse its discretion in declining to sanction the prosecution for its late disclosure of evidence.

Defendant also asserted that the trial court erred by allowing J.H. to testify that defendant was “very guilty-looking” following the incident. A lay witness may testify about a summary conclusion based on the witness’s perception. Here, J.H. was physically present at the party where the assault occurred, and observed defendant immediately after the incident occurred with C.L. J.H. provided a summary characterization of her perception of how defendant looked and acted immediately following the incident. Therefore, the trial court did not abuse its discretion by allowing the challenged testimony.

Defendant further argued that the trial court erred by allowing C.L.’s father to testify that C.L. had attended a support group after the assault and had told him that thinking about the incident made her feel sick to her stomach. Because C.L.’s statements described her state of mind or physical condition resulting from the incident with defendant, the testimony did not violate the hearsay rules and was admissible.

Defendant additionally argued that admission of the father’s testimony violated the trial court’s orders and his right to an impartial judge when the court advised the prosecutor how the testimony might be admitted without providing discovery about the support group to defendant. The judge did not act as an advocate, and the testimony conformed with the court’s orders. Therefore, admission of this testimony was not error. The judgment was affirmed.

Summary and full case available here.

Colorado Court of Appeals: Error to Allow Jury Unfettered Access to Videotaped Interview of Child Sexual Assault Victim

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

Sexual Assault on a Child by one in a Position of Trust—Videotape—Evidence—Jury Deliberations.

Defendant was a friend of L.T., a mother of two small children. In 2008 and 2009, he watched the children four times, including two overnights, without their mother being present. On one of the overnights, he allegedly sexually assaulted J.B., L.T.’s 5-year-old daughter. A jury found defendant guilty of sexual assault on a child and sexual assault on a child by one in position of trust.

On appeal, defendant contended that the trial court abused its discretion when it gave the jury during deliberations unrestricted and unsupervised access to the videotaped forensic interview of J.B. The trial court admitted the videotaped interview as child hearsay under CRS § 13-25-129. However, the trial court abused its discretion in allowing the jury unfettered access to the statements during deliberations. During her live testimony during trial, almost two years after the alleged assaults, J.B. was unable to remember many details about what had happened between her and defendant. Thus, J.B.’s credibility was the main issue at trial, and the video, which was taken a day after J.B. first reported the assaults to her mother, filled in the gaps of her testimony. Furthermore, the court gave no limiting instruction regarding the jury’s use of the video. These errors created grave doubt as to the error’s effect on the verdict or the fairness of the trial proceedings. Therefore, defendant’s convictions were reversed and the case was remanded for a new trial.

Summary and full case available here.