April 30, 2017

Top Ten Programs and Homestudies of 2016: Litigation

The year is drawing to a close, which means that the compliance period is ending for a third of Colorado’s attorneys. Still missing some credits? Don’t worry, CBA-CLE has got you covered.

Today on Legal Connection, we are featuring the Top Ten Litigation Programs and Homestudies. Litigation encompasses several practice areas, including commercial litigation, tort/insurance, civil litigation, and more, but some things are common to all trial attorneys. CBA-CLE offers many great programs for litigators, and our litigation library contains both helpful treatises and reference guides. Find the program, homestudy, or book you need at cle.cobar.org/Books/Litigation.

And now, for the Top Ten Litigation Programs and Homestudies of 2016.

10. Expert Witness Introduction for Colorado Practitioners: Top 10 Tips
This CLE covers key basics of Colorado expert witness practice: who is an expert witness (CRE 702);  what are the requirements of being an expert (CRE 702); when may an expert witness testify (CRE 702); what are the discovery requirements applicable to expert witnesses (CRCP 26(a)(2)(B); what is the timing for required disclosure of expert witnesses (CRCP 26(a)(2)(C) and the sanctions for failing to disclose expert witnesses properly and timely (CRCP 37(c)(1))? This CLE will be based on Colorado law, but will present a comparison to federal law, and identify key federal cases under analogous Rules where Colorado law is absent. Order the Video OnDemand here and the MP3 here. Available for 1 general credit.

9. Making Your Record: The Why, When, and How of Appellate Advocacy in Trial Court
Learn how to “make your record” in state and federal court to preserve your issue on appeal in the Pre-trial, Trial, and Post Trial phases. Attorney Kendra Beckwith will cover Pleadings, Pre-Trial Motions, Discovery Disputes, Trial Objections and Motions, Jury Instructions and Verdict Forms, Post-Trial Motions, and Notice of Appeal. Order the Video OnDemand here and the MP3 here. Available for 1 general credit.

8. Deposition Practice: Nuts and Bolts
You will leave this half-day program immediately prepared to plan and implement more effective depositions. This is a skills building program that covers every aspect of the deposition process, filled with tips on questions that will draw out information, obtain admissions, support motion practice and set up successful cross examination at trial. You will also learn how to prepare your witness to be deposed, conveying information truthfully while avoiding manipulation. Your seasoned presenter and litigator has extensive knowledge and experience, and will provide you with invaluable pointers and information. Trial lawyers of all experience levels will pick up tips, ideas, and insights. This program is about the art as well as the science of discovery practice. Order the Video OnDemand here, the CD homestudy here, and the MP3 here. Available for 3 general credits.

7. Direct & Cross Examination and Opening & Closing: Top To-Dos
You know from many a sleepless night and anxious day that your examinations of witnesses, and your openings and closings at trial must be independently effective and collectively coordinate as part of a winning strategy. The best part is that you don’t have to change your style and personality to develop the skills to become more effective in court! This program will be full of tips, methods and suggestions about how to build immediately on your abilities as a litigator to be that much more effective and persuasive right now in your trial practice. This program will help you be a better trial lawyer now and set you on the path to be an even better lawyer as you continue to work on what you will learn in this program. Order the Video OnDemand here, the CD homestudy here, and the MP3 here. Available for 3 general credits.

6. New Technology for Evidence Preservation: Drones, Black Boxes, and More
Drones, computers in vehicles, and Event Data Recorders (EDRs) have evolved in popularity and sophistication. This program will focus on data to be collected and preserved following an accident, including physical data, electronic data, and photographs. In addition, there will be a review of some of the ethical issues involved including the use of investigators, data collected, and privacy issues.  Relevant Case law and the Colorado Rules of Professional Conduct will be referenced. Order the Video OnDemand here and the MP3 here. Available for 2 general credits.

5. Courtroom Technology & Voir Dire
If you are a litigator, you are always looking for ways to gain the edge in the courtroom: with the judge, with the jury, and with opposing counsel. From pre-trial discovery and depositions through jury instructions and closing argument, every step is vital to winning your case. Watch this half-day homestudy on courtroom technology and voir dire that will give you the edge in your next case. Find out the latest in courtroom technology, voir dire tips, and hear the fascinating case study of the voir dire in the Oklahoma City bombing case! Order the Video OnDemand here, the CD homestudy here, and the MP3 here. Available for 3 general credits.

4. Preparing the Case for Trial: Motions, Mock Trials, and Motions In Limine
This program explains the benefits of mock trials, including how to prepare for a mock trial and what you will learn; motions practice and oral advocacy, including organization and presentation of arguments, how to interact with the judge, how to handle questions, and how to effectively implement oral persuasion skills; and Schreck challenges and motions in limine, including laying the foundation for admission or striking of expert testimony, the different standards for Schreck challenges and Daubert motions, and how to make effective motions in limine. Order the Video OnDemand here, the CD homestudy here, and the MP3 here. Available for 3 general credits.

3. E-Discovery 2016
Law and technology intersect on a continuing – and accelerating – basis.  Attorneys in all areas of practice must become familiar with new electronic devices and the media through which they and their clients communicate and conduct business.  At the same time, existing state and federal rules that govern civil and criminal proceedings and the Rules of Professional Conduct must address technologies such as social media, webpages, and shared work places.  Electronic information impacts all aspects of an attorney’s practice, whether litigation, transactional, or otherwise. For example, electronically stored information affects all employers and information governance professionals.  This program is a must-attend for any attorney practicing today and tomorrow. Order the Video OnDemand here, the CD homestudy here, and the MP3 here. Available for 8 general credits, including 1 ethics credit.

2. Collecting Judgments: Strategies for Success
This program presents a practical approach to maximizing your ability to collect judgments within the bounds of the law and ethics rules. Your expert faculty will guide you through the process and let you know the options that are available. They will tell you how, when, and why to select one strategy over another. In addition, you receive a primer on the Fair Debt Collections Practices Act and the perspective of the court. Learn the dos and don’ts of effective and ethical collections practice. Order the Video OnDemand here, the CD homestudy here, and the MP3 here. Available for 6 general credits and 1 ethics credit.

1. Winning at Trial 2016: Practical Pointers
This is your annual one day trial advocacy program presented by the Colorado Chapter of the American College of Trial Lawyers. Its distinguished faculty are highly experienced litigators and strategists who will share with you practical pointers for winning your clients’ cases. Topics include Jury Selection, Creating Trial Themes and Graphics, Taking Depositions, Opening Statement, Direct Examination, Cross Examination, and Social Media. Don’t Miss This Opportunity to Learn from Those Who Know Trial Law Inside and Out! Order the Video OnDemand here, the CD homestudy here, and the MP3 here. Available for 7 general credits.

Jury Selection in a High-Profile Death Penalty Case

On April 19, 1995, a Ryder truck filled with explosives parked outside the Alfred P. Murrah Federal Building in Oklahoma City, Oklahoma, and detonated. The blast damaged 324 buildings in a 16-block radius, 168 people were killed in the attack, and 680 were injured. Many of the deceased were children; an “America’s Kids” child care center was inside the federal building, and 15 of the 21 infants and children at the child care center were killed.

Approximately 80 minutes after the attack, Timothy McVeigh was pulled over for a missing registration tag on his 1970s yellow Mercury. When the officer stopped McVeigh’s vehicle, McVeigh got out of the car and the officer could see the outline of a gun under his jacket. McVeigh admitted he had the weapon and it was loaded, and the trooper arrested him and booked him into jail. Within days of the attack, the Ryder truck was linked to McVeigh and his friend Terry Nichols, McVeigh’s Army buddy.

McVeigh and Nichols were charged with eleven counts: (1) conspiracy to use a weapon of mass destruction; (2) use of a weapon of mass destruction; (3) destruction by explosive related to the Murrah building; and (4) through (11) first degree murder, for the deaths of seven federal law enforcement officers who died in the Murrah building. McVeigh and Nichols were tried separately.

Both defendants moved to disqualify the federal judge presiding over the case. Only Nichols appealed for mandamus from the denial; the Tenth Circuit found that because the judge’s own chambers were destroyed in the blast, it would be difficult for the judge to be fair and impartial. Venue was moved in Nichols’ case to Colorado.

N. Reid Neureiter represented Nichols in his death penalty case. He faced many difficult issues in jury selection and during trial. On Wednesday, December 21, 2016, he will discuss the case and the voir dire issues as part of a half-day program, “Courtroom Technology and Voir Dire.” To register, call (303) 860-0608 or click the links below.

 

CLELogo

CLE Program: Courtroom Technology and Voir Dire

This CLE presentation will occur on December 21, 2016, at the CBA-CLE offices (1900 Grant Street, Third Floor), from 9 a.m. to 12 p.m. Register for the live program here or register for the webcast here. You may also call (303) 860-0608 to register.

Can’t make the live program? Order the homestudy here: CD • MP3Video OnDemand.

Tenth Circuit: Juror Questionnaire, Taken in Isolation, Not Enough to Show Impermissible Bias

The Tenth Circuit Court of Appeals issued its opinion in Eizember v. Trammell on Tuesday, September 10, 2015.

When he was released from the Tulsa jail, Scott Eizember went to his ex-girlfriend’s house to exact revenge since she had alerted authorities about his violation of a protective order. He broke into a house across the street and found a shotgun. When the Cantrells, an elderly couple who lived in the house, returned home, Eizember engaged in an altercation with Mr. Cantrell where he tried to wrestle the gun from Eizember. A shot was fired during the altercation that killed Mrs. Cantrell. Eizember wrestled the gun away from Mr. Cantrell and beat him with the gun until he lost consciousness, and eventually died. Next, he headed across the street and shot Tyler Montgomery, his ex-girlfriend’s son, and beat Mr. Montgomery’s grandmother. Mr. Montgomery ran to his pickup truck to drive away but Eizember jumped into the bed of the truck. Mr. Montgomery eventually crashed the truck and ran away for help. Eizember ran the other direction and hitched a ride, but eventually shot at the other driver too.

For the next 11 days, he hid in the woods, emerging only to steal clothes and a pistol from a nearby house. He soon stole a car from outside a church and made his way out of town. When the car ran out of gas, he continued hitchhiking, and was offered a ride by Dr. Sam Peebles and his wife, whom he ordered at gunpoint to drive him to Texas. After hours in the car, Dr. Peebles was able to shoot Eizember with his own gun. Eizember wrestled the revolver away from Dr. Peebles and bludgeoned him with it, also hitting Mrs. Peebles in the head when the revolver wouldn’t fire at her. At a nearby convenience store, a clerk saw Eizember was shot and called the police. Eizember was arrested and taken to the hospital, then jail.

Eizember was eventually convicted of first-degree murder for Mr. Cantrell’s death, second-degree felony murder for Mrs. Cantrell’s death, assault and battery with a dangerous weapon for beating Montgomery’s grandmother, shooting with intent to kill for Mr. Montgomery, and first-degree burglary for breaking into the Cantrells’ home. He unsuccessfully appealed to the Oklahoma Court of Criminal Appeals (OCCA) and the U.S. Supreme Court denied certiorari. The OCCA also denied his petition for post-conviction relief, as did a federal district court, but the district court granted Eizember a Certificate of Appealability on several issues.

On appeal, Eizember argued that two jurors, D.B. and J.S., should have been excluded because they were impermissibly biased in favor of the death penalty. The Tenth Circuit, noting that both the OCCA and the federal district court rejected this claim, disagreed with Eizember. The Tenth Circuit applied a Witt standard and agreed with the OCCA that, when considered in context, D.B.’s answers did not show impermissible bias. Although the questionnaire answers pointed out by Eizember tended to show bias toward the death penalty, D.B.’s answers during voir dire showed that she could fairly consider all sentencing options. The Tenth Circuit held that the trial court did not clearly err by retaining D.B. as a juror. As for J.S., his answers tended to show less bias than D.B.’s answers, so the Tenth Circuit found no error in the trial court’s refusal to dismiss him. The dissent suggested that the OCCA did not apply the Witt standard at all in rejecting Eizember’s arguments against retaining D.B. and J.S. on the jury, therefore relying on an incorrect legal standard and necessarily mandating reversal, but the majority did not agree.

Eizember next argued that the jury was confused about the meaning of life with the possibility of parole as a sentencing option due to a prospective juror’s erroneous comment during voir dire. The Tenth Circuit disagreed, finding that the parties agreed the jurors were properly instructed on the meaning of life with the possibility of parole as a sentencing option. Eizember argued that his sentences should be vacated due to the jury’s confusion, but the Tenth Circuit again disagreed, finding that even if there had been error vacating the sentences was not the proper remedy.

Next, Eizember argued that the jury was improperly instructed on the elements of second-degree “depraved mind” murder, and the prosecution agreed. Eizember contended that because of the improper instruction, he was deprived of his federal due process rights to have the jury instructed on a non-capital alternative offense. The Tenth Circuit again disagreed, finding that although the instruction incorrectly advised the jury of the non-capital offense of “depraved mind” murder, the jury was properly instructed on felony murder, which is a non-capital offense. Eizember argued that the jury would not have been able to convict him of felony murder, but the Tenth Circuit rejected this argument as well, noting that Eizember requested the felony murder instruction. Eizember next argued that his attorney’s failure to object to the incorrect “depraved mind” instruction constituted ineffective assistance of counsel. The OCCA found that the incorrect instruction had no impact on Eizember’s rights, because it is unavailable under state law when a jury finds a killing intentional beyond a reasonable doubt, as it did in Eizember’s case.

The judgment of the district court was affirmed. Chief Judge Briscoe wrote a detailed dissent regarding D.B.’s bias in favor of the death penalty.

Colorado Court of Appeals: Affirmative Self-Defense Instruction Available for All General Intent Crimes

The Colorado Court of Appeals issued its opinion in People v. DeGreat on Thursday, July 30, 2015.

Self-Defense—Robbery—Jury Instruction—Peremptory Challenge—BatsonChallenge.

DeGreat’s criminal charges arose from an altercation with a taxi cab driver over the fare, which culminated in DeGreat stabbing and wounding the driver. DeGreat defended on a theory of self-defense. The jury found DeGreat guilty of aggravated robbery and a related crime of violence count.

On appeal, DeGreat contended that, given the unique facts presented, he was entitled to a jury instruction on self-defense as an affirmative defense to aggravated robbery. A person may use physical force to defend himself from what “he reasonably believes to be the use or imminent use of unlawful physical force” by another person. Here, evidence was presented that supported an affirmative self-defense instruction, and DeGreat successfully defended against attempted murder and first-degree assault charges on that basis. Because the robbery was intertwined with the assault, the jury could have concluded that DeGreat had the right to defend himself. The refusal to give the self-defense instruction for the charge of aggravated robbery lowered the prosecution’s burden of proof and was not harmless. Therefore, DeGreat’s aggravated robbery conviction was reversed and the case was remanded for a new trial.

DeGreat also contended that the trial court erred in denying his Batson challenge to the prosecutor’s use of a peremptory challenge to remove Juror M, an African American, from the panel [Batson v. Kentucky, 476 U.S. 79 (1986)]. In light of the prosecutor’s stated basis for the strike, which was Juror M’s reaction to self-defense questioning, the trial court did not err in finding the prosecution offered a good faith, race-neutral basis for its peremptory challenge.

DeGreat contended that the trial court plainly erred in failing to sua sponte strike testimony that DeGreat had been offered a plea bargain. DeGreat’s attorney did not make a contemporaneous objection to this testimony. Because no binding precedent clearly precludes evidence regarding plea offers, the trial court could not have been expected to sua sponte strike such unsolicited testimony.

DeGreat contended that the trial court erred in admitting recorded phone calls he placed from jail in which he attempted to solicit the victim not to appear for trial. There is no reasonable expectation of privacy in phone calls placed from jail. Furthermore, the wiretapping statute does not apply to inmate phone calls placed from jail. Thus, the trial court did not err in admitting the jailhouse phone calls.

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

Colorado Supreme Court: Proper Remedy for Inadequate Batson Findings is Remand for Further Findings

The Colorado Supreme Court issued its opinion in People v. Rodriguez on Monday, June 29, 2015.

Batson Challenges.

The Supreme Court held that when a trial court conducts an inadequate inquiry into an equal protection challenge to the exercise of a peremptory strike, the proper remedy is to remand the case so that the trial court may conduct the three-part analysis announced in Batson v. Kentucky, 476 U.S. 79 (1986), as it is described in this opinion. An inquiry is inadequate when the trial court’s findings are insufficient to determine whether the challenger has proved that the proponent of the peremptory strike purposefully discriminated against a prospective juror on account of the prospective juror’s race. Here, the trial court applied an incorrect legal standard and overruled defendant’s Batson challenge for failure to demonstrate a pattern of discrimination. In so doing, the court never decided whether defendant established that the prosecutor engaged in purposeful discrimination by striking two minority venire members. Accordingly, the Court ordered the case returned to the trial court with directions to conduct the three-part Batson analysis.

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

Colorado Supreme Court: Defendant Waived Public Trial by Not Objecting to Closed Courtroom During Voir Dire

The Colorado Supreme Court issued its opinion in Stackhouse v. People on Monday, June 29, 2015.

Sixth Amendment Right to Public Trial—Waiver.

At petitioner’s trial, the court closed the courtroom for a portion of voir dire because the large jury pool created the risk of interested members of the public intermingling with the jurors and potentially biasing them. Petitioner’s counsel did not object to the closure at that time or at any time during the trial. The Supreme Court granted certiorari to determine whether petitioner affirmatively waived his right to a public trial in accordance with Anderson v. People, 490 P.2d 47, 48 (Colo. 1971), by not objecting to the known closure. The Court held that Anderson remains controlling, and thus petitioner affirmatively waived his public trial right when he did not object to the known closure. The court of appeals’ judgment was affirmed.

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

Colorado Supreme Court: Court Reviewing Batson Challenge Should Only Reverse for Clear Error

The Colorado Supreme Court issued its opinion in People v. Wilson on Monday, June 29, 2015.

Batson Challenges.

In Batson v. Kentucky, 476 U.S. 79 (1986), the U.S. Supreme Court created a three-part analysis to uncover and prevent unconstitutional discrimination in the exercise of peremptory challenges. In the instant case, the court of appeals held that the prosecutor necessarily violated Batson and engaged in purposeful discrimination because the record refutes her asserted race-neutral reason for peremptorily striking a black venire member. However, a discrepancy between a strike proponent’s justification and the record of voir dire sometimes reflects a mistaken recollection rather than purposeful discrimination.

The Supreme Court held that an error in recollection does not compel a finding of purposeful discrimination in contravention of the Equal Protection Clause as interpreted in Batson. Rather, the Batson analysis requires the trial court to assess the credibility of the proponent of a peremptory strike and determine whether to believe her race-neutral explanation. Unless the opponent of the strike can prove purposeful discrimination, the trial court should deny the Batson challenge. Because the trial court in this case did not clearly err by accepting the prosecutor’s race-neutral explanation, the Court reversed the judgment of the court of appeals.

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

Colorado Court of Appeals: Single Entry Can Only Support One Count of Burglary

The Colorado Court of Appeals issued its opinion in People v. Carter on Thursday, March 12, 2015.

Burglary—Challenge for Cause—Cross-Examination—Relevance—Jury Instructions—Complicity Liability—Voir Dire—Reasonable Doubt—Prosecutorial Misconduct.

After Fuller, a former grade-school classmate of R.W., knocked on the door, asking to use R.W.’s phone, two or three men rushed inside, pushing past R.W. One of the perpetrators was armed with a rifle. While the perpetrators searched the house, several people called 911, and the police arrived moments later. Fuller and Golston fled, but were apprehended nearby. Defendant’s wife, a friend who was residing in the basement, and at least three minor children had been in the house and witnessed the incident.

Defendant was taken into custody several days later after his parole officer noted that his ankle monitor placed him within 150 to 200 feet of the residence on the night of the incident. He was convicted of four counts of first-degree burglary—assault/menace; one count of first-degree burglary—deadly weapon; and three counts of misdemeanor child abuse.

On appeal, defendant argued that the trial court erred when it denied his challenge for cause to a prospective juror who was a criminal investigator for the Colorado Public Utilities Commission (CPUC). However, the CPUC does not qualify as a public law enforcement agency under the applicable statute. Therefore, it was not error for the trial court to deny the challenge for cause.

Defendant also argued that the trial court erred by restricting him from eliciting, on cross-examination, information about two alleged incidents that he claims would have been relevant as to R.W.’s motive to testify and credibility. Specifically, defendant sought to cross-examine R.W. and Detective Meier, an investigating detective on the case, to support a defense that what happened at R.W.’s house on the eve of the incident was not a robbery but a botched drug deal. This evidence, however, was too speculative to support the relevance of these inquiries; therefore, they were properly excluded.

Defendant argued that the trial court erred when it gave a second instruction on complicity liability. Standing alone, the second instruction could be confusing, but it didn’t conflict with or contradict the first instruction. When read as a whole, the instructions accurately informed the jury of the applicable law.

Defendant contended that the trial court erred, during voir dire instructions to the jury, by analogizing the beyond a reasonable doubt standard to an incomplete jigsaw puzzle, and by allowing the prosecutor to make similar comments, consequently lowering the prosecution’s burden of proof. The trial court verbally instructed the jury twice on the definition of reasonable doubt, as stated in the model jury instructions and applicable case law, and provided final written instructions. Absent evidence to suggest otherwise, it is presumed that the jury followed these instructions.

Defendant further contended that the trial court erred when it allowed the prosecutor to make statements characterizing defense counsel as attempting to distract the jury with “magic trick[s]” and “red herrings.” Although the reference to defense counsel in the prosecution’s closing argument was arguably inappropriate, as a whole, the prosecutor’s statements were fair comments on the evidence. Therefore, they were not improper. Conversely, the prosecutor’s comments during voir dire did not appear to be tied to the evidence and were improper. However, these statements were not the focus of the overall voir dire and argument. Therefore, any error was harmless.

Defendant also argued that the trial court erred in entering convictions on each of the five counts of first-degree burglary. Defendant’s burglary convictions were based on the same unlawful entry of the victims’ home. Because a single entry can support only one conviction of first-degree burglary, even if multiple assaults occur, defendant’s five first-degree burglary convictions violated the Double Jeopardy Clause.

The case was remanded to the trial court with directions to vacate defendant’s conviction and sentence for four counts of first-degree burglary—assault/menace and correct the mittimus accordingly. In all other respects, the judgment was affirmed.

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

Tenth Circuit: District Court Required to Review All Circumstances in Determining Validity of Batson Challenge

The Tenth Circuit Court of Appeals issued its opinion in United States v. Vann on Friday, January 16, 2015.

Rayvell Vann paid cash for a one-way Amtrak ticket from Los Angeles to Kansas City two hours before the train departed. A confidential informant relayed the unusual circumstances of the ticket purchase to DEA Agent Small in Albuquerque, and when the train made a scheduled stop in New Mexico, Agent Small boarded the train and located Vann. After a brief conversation, Agent Small asked to search Vann’s bags and he consented. The search revealed two bottles of codeine, 25 OxyContin pills, and two jars containing approximately 100 grams of PCP. Vann was interrogated and admitted to dealing drugs, but he contended he did not know the PCP was in the box where the pills were found because he had shipped the PCP via UPS. He was charged with two counts of possession with intent to distribute PCP and codeine, and was convicted on both counts. He dismissed his attorneys at sentencing, deciding instead to proceed pro se, and was sentenced to 15 years’ imprisonment. He appealed, raising four issues.

Vann’s first issue on appeal was that the district court committed legal error during jury selection because it improperly administered the three-part Batson test after the government moved to strike the sole African-American member of the venire. Both sides concede that the other party met its obligation as to the first and second parts of the Batson test, so the Tenth Circuit analyzed only the third part — the district court’s obligation to consider all circumstances in determining whether there was racial animosity in the juror strike. During trial, Vann objected to the prosecution’s strike of the juror, but Vann also filed a post-trial Rule 33 motion, arguing that the government’s reasons for striking the juror were pretextual. The Tenth Circuit examined the record, acknowledging the record was limited as to the district court’s reasons for accepting the prosecution’s race-neutral explanations. However, the Tenth Circuit noted that its precedent makes clear that the district court need not make a complete record as to the reasons for denying a Batson challenge, although the better practice may be to complete the record. As to Vann’s post-trial motion, the Tenth Circuit strongly discouraged the practice, finding that this put the district court into an awkward position. Vann could have instead reiterated his Batson challenge after the completion of voir dire but before the jury was empaneled, which would have allowed the court to adequately compare similarly situated jurors before the trial began.

Vann next contended the district court erred by allowing Agent Small’s expert testimony at trial. Vann does not claim error in the court’s qualification of Agent Small as an expert, contesting only the reliability of the testimony. The Tenth Circuit noted that the district court properly vetted Agent Small through a Daubert hearing and at trial. The Tenth Circuit also found that, contrary to Vann’s assertions, Agent Small had considerable experience in the drug trade and had attested to numerous PCP arrests. The Tenth Circuit found no abuse of discretion.

Vann’s third claim was that the district court erred in not sua sponte addressing alleged prosecutorial misconduct during trial. After reviewing the record, the Tenth Circuit found that the prosecution’s comments were “simply lawyering,” or attempts to influence the jury’s verdicts by presenting evidence favorable to its case. Further, a limiting instruction provided by the district court and limiting remarks made by the prosecutor mitigated any error there might have been.

Vann’s final claim is that he did not knowingly waive his right to counsel at sentencing. The district court had conducted a waiver-of-counsel inquiry at the beginning of trial, and Vann elected to have representation at trial. When Vann discharged his attorney at the sentencing phase, the trial court questioned whether he was firing his attorney as a tactic to gain time, since he had fired two previous attorneys. The court allowed him to proceed pro se at the sentencing phase. Vann contends that he did not receive an adequate waiver-of-counsel inquiry prior to sentencing, but the Tenth Circuit found he was adequately informed of the risks of proceeding unrepresented due to the previous inquiry.

The Tenth Circuit affirmed the district court.

Colorado Court of Appeals: Insufficient Findings on Batson Challenge Warranted Reversal

The Colorado Court of Appeals issued its opinion in People v. Beauvais on Thursday, October 23, 2014.

Jury Selection—Peremptory Challenge—Batson Challenge.

A jury found Beauvais guilty of one count of stalking under CRS § 18-3-602(1)(c) after she repeatedly called, e-mailed, and sent text messages to a man she met on the Internet. On appeal, she contended that the trial court committed reversible error in the jury selection process, and that CRS § 18-3-602)(1)(c) is unconstitutional.

Beauvais first contended that the trial court clearly erred by failing to sustain her Batson challenge to the prosecution’s use of peremptory challenges to excuse potential jurors on account of their gender [Batson v. Kentucky, 476, U.S. 79 (1986)]. The record refutes several of the prosecutor’s explanations for excusing potential jurors. The prosecutor did not attempt to excuse several males on the panel that had the same characteristics for which the prosecutor claimed he excused the female jurors. However, the prosecutor also claimed that each of the potential jurors he had excused was either young, sick, or a college student. These justifications are objectively verifiable and could potentially form the basis of a legitimate peremptory challenge. However, the trial court made no findings regarding the potential jurors’ ages or health, and there is nothing in the record to show whether the trial court believed that the prosecutor sought to excuse any of them because they were college students. Because the record was insufficient to determine whether the trial court’s ruling was clearly erroneous, the matter was remanded to the trial court for additional findings.

Beauvais next contended that, on its face, CRS § 18-3-602(1)(c) (the stalking statute)is unconstitutionally vague and overbroad. The Colorado Supreme Court and a division of the Court of Appeals have both concluded that a prior substantially identical version of this statute was neither unconstitutionally vague nor overbroad. Therefore, Beauvais’s facial challenge was rejected.

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

Colorado Court of Appeals: Merely Identifying Group to Which Excluded Juror Belonged Not Enough for Batson Challenge

The Colorado Court of Appeals issued its opinion in People v. Morales on Thursday, October 9, 2014.

Sexual Assault—Jury Selection—BatsonChallenge—Penetration—Evidence—Double Jeopardy.

The evidence presented at trial showed that, on the night of the charged assault, the victim, 16-year-old B.R., attended a party at the apartment of an acquaintance. B.R. became intoxicated and eventually fell asleep in a bedroom. B.R. woke up with Morales, A.R.’s step-father, kissing her, touching her, and placing his penis on her. Someone turned on the lights in the room when B.R. began screaming at Morales and alleging that he had tried to rape her. A jury convicted him of multiple charges of sexual assault.

On appeal, Morales first sought a limited remand for the trial court to make a better record on the third step of his Batson challenge [Batson v. Kentucky, 476 U.S. 79 (1986)]. Merely identifying cognizable groups to which the excluded juror might have belonged is insufficient, without more, to establish a prima facie showing of purposeful discrimination. Here, a remand was unnecessary, because the court properly determined that Morales failed to make a prima facieshowing of discrimination at step 1 of the Batson analysis.

Morales also contended that the evidence was not sufficient to prove that he committed the crime of sexual assault because there was no sexual penetration. Sexual assault in violation of CRS §18-3-402 requires the knowing infliction of either sexual intrusion or sexual penetration on a victim. Here, the prosecution presented evidence that Morales performed cunnilingus on B.R. The evidence was therefore sufficient to support Morales’s convictions for sexual assault, and the jury was properly instructed as to these definitions.

Morales further argued that one of his convictions must be vacated to comport with the prohibition against double jeopardy. Specifically, he claims that he should not stand convicted and sentenced for both the felony sexual assault and attempted felony sexual assault because the actions underlying both convictions constitute a single crime. All of the sexual conduct Morales inflicted on B.R. occurred within five minutes or less, with no break in between the different sexual acts. There was no evidence of intervening events. Because Morales’s separate convictions for felony sexual assault and attempted felony sexual assault violated double jeopardy principles, the Court of Appeals remanded the case to merge the charges into a single conviction.

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

Colorado Court of Appeals: Waiver of Peremptory Challenge Alone Not Sufficient to Establish Discrimination Under Batson

The Colorado Court of Appeals issued its opinion in People v. Lucero on Thursday, April 24, 2014.

Prima Facie Case of Discrimination Under Batson—Failure to Exercise Peremptory Challenges.

On the first day of a jury trial, twenty-two potential jurors were seated for voir dire. The court stated that there would be no alternates and that the People and defendant would each have five peremptory challenges. Both defendant and the People passed the entire venire for cause.

Jurors were assigned seats one through twenty-two, but peremptory challenges were to be used against jurors in seats one through twelve only, with replacements taken from seats thirteen to twenty-two, a process known as the “struck jury” system. Juror P, the only potential juror with a Hispanic surname, was seated in chair twenty-two.

The People and defendant each struck two potential jurors. The People waived their third peremptory challenge and accepted the panel. Defendant exercised his third challenge and the People again accepted the panel. Defendant exercised his fourth challenge and the People exercised their third peremptory to strike the replacement juror. Defendant exercised his fifth challenge and the People exercised their fourth challenge to strike the replacement juror. The People then accepted the panel again. Because the People did not exercise their fifth challenge, Juror P was not on the final jury panel and was excused.

The court asked whether the parties had any objection pursuant to Batson v. Kentucky, 476 U.S. 79 (1986). Defense counsel indicated he had a problem with how the peremptory challenges had been used with respect to Juror P. After discussion, the court ruled that the defense had not established a prima facie case of discrimination because the People had not exercised a strike to exclude Juror P. Defendant appealed, and the Court or Appeals affirmed.

To make a Batson challenge, the defendant must first make a prima facie showing that the State has excluded potential jurors based on race, ethnicity, or sex. In a case of first impression in Colorado, the Court held that waiver of a peremptory challenge, without more, is insufficient to establish a prima facie case of discrimination under Batson. However, a waiver of a peremptory challenge, with additional indicia of discriminatory purpose, could establish a prima facie case.

Here, the People’s waiver of its last peremptory challenge excluded a minority juror, but defendant failed to demonstrate any other discriminatory action by the prosecutor. Therefore, no pattern of discrimination was shown, and the trial court did not err in finding that defendant had failed to make out a prima facie case of discrimination. The judgment was affirmed.

Summary and full case available here.