July 18, 2019

Archives for June 28, 2010

Colorado Court of Appeals: Dismissal of an Indictment Without Prejudice Before Trial Does Not Constitute Final Judgment

The Colorado Court of Appeals issued its opinion in People v. Frye on June 25, 2010.

C.A.R. 4—CRS § 16-12-102(1)—Dismissal—Voluntary.

The People appealed a trial court order excluding the testimony of defendant’s sister under C.R.E. 807, the residual exception to the rule against hearsay. The Court of Appeals dismissed the appeal.

In 1973, defendant was charged with first-degree murder for the death of his wife. However, the case was dismissed on the eve of trial at the prosecution’s request, on its representation that there was insufficient evidence to proceed. In 2006, based on a statement by his sister, defendant was indicted for the same crime by a grand jury. The sister testified that their mother, who subsequently passed away, had told her that defendant had confessed to her that he had killed his wife. The trial court concluded that the sister’s testimony lacked sufficient guarantees of trustworthiness and, therefore, was inadmissible under C.R.E. 807. As a result of that order, the case was again dismissed at the prosecution’s request.

On appeal, the prosecution argued that the trial court erred in excluding the sister’s testimony. The question presented here, however, is whether the trial court’s dismissal of an indictment without prejudice before trial at the prosecution’s request qualifies as a final judgment for purposes of appellate jurisdiction under CRS § 16-12-102(1). Because the trial court granted the prosecution’s motion to dismiss under circumstances in which it essentially had no choice but to approve the prosecution’s request, the trial court’s dismissal of the case did not constitute a final judgment from which an appeal of a question of law could be taken under CRS § 16-12-102(1).

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on June 25, 2010, can be found here.

Colorado Court of Appeals: Statute of Limitations Defense Waived When Plead Guilty to Theft

The Colorado Court of Appeals issued its opinion in People v. Wilson on June 25, 2010.

Theft—Public Assistance Benefits—Restitution—Statute of Limitations—Plea—Evidence.

Defendant appealed the trial court’s order granting the People’s request for $47,086 restitution for overpaid public assistance benefits. The order was affirmed.

The People charged defendant with theft for overpayment of public assistance benefits for various periods between September 2001 and May 2005. Defendant pled guilty to one charge of theft between September 2004 and February 2005. The trial court then granted the People’s request for $47,476.48 in restitution. Defendant objected to the restitution amount, alleging that some of the restitution requested was for a period covered in defendant’s prosecution for theft of public assistance in another case and some of the period covered was barred by the statute of limitations. The court vacated the order.

On appeal, defendant contended that the trial court erred in determining the amount of restitution because collection of $13,055 of that amount was barred by the statute of limitations, which she contends was a defect of subject matter jurisdiction. However, the statute of limitations does not apply to offenses to which a defendant pleads guilty. Therefore, defendant waived her right to raise the statute of limitations as a defense to restitution when she pled guilty to theft.

Defendant contended that apart from her statute of limitations argument, the trial court abused its discretion in finding that the prosecution had proved by a preponderance of the evidence that she owed restitution in the amount of $47,086. The evidence in the record supported the trial court’s finding that (1) from 2001 to 2005, defendant was living with Hall, her boyfriend; (2) Hall’s income was not included in calculating defendant’s benefits; (3) defendant improperly collected public assistance benefits during that period; and (4) the prosecution proved the amount defendant illegally collected. Thus, the court did not abuse its discretion in ordering restitution in the amount of $47,086.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on June 25, 2010, can be found here.

Colorado Court of Appeals: Mid-Trial Suicide Attempt Voluntarily Waives Right to be Present at Trial

The Colorado Court of Appeals issued its opinion in People v. Price on June 25, 2010.

Sexual Assault on a Child—Mistrial—Suicide Attempt—Crim.P. 43(b)(1)—Right to Testify—Competency—Charging Documents—Verdict Forms.

Defendant appealed the judgment of conviction entered on a jury verdict finding him guilty of one count of sexual assault on a child, four counts of sexual assault on a child as part of a pattern of sexual abuse, and five counts of aggravated incest. The judgment was affirmed.

Defendant contended that the trial court erred by denying his motion for mistrial, which was prompted by his mid-trial suicide attempt. The Court of Appeals disagreed. Defendant voluntarily waived his right to be present at trial by attempting suicide once trial had already begun, because he created the medical necessity to effect his absence from trial. His suicide note, discovered after his suicide attempt, reflected both that he understood the proceedings against him and that he purposefully determined to absent himself from the trial. Because defendant voluntarily caused himself to be absent from trial, he waived his right to be present, and waived the corresponding right to testify on his own behalf. Further, the Court did not abuse its discretion in finding that defense counsel failed to establish a “bona fide doubt” as to defendant’s competency because the suicide note proved otherwise.

Defendant also contended that there was a fatal variance between the charging documents and the verdict forms. The Court disagreed. The verdict forms contained correct dates of illegal activity, but the charging documents contained dates outside the illegal conduct (beyond the victim’s 18th birthday). Because the evidence presented to the jury, the jury instructions, and the verdict form encompassed a date range within the date range of the original and amended charging documents, defendant was not prejudiced in preparing or presenting a defense due to any variance at trial.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on June 25, 2010, can be found here.

Colorado Court of Appeals: Jury Verdict for Attempted 1st-Degree Murder Not Inconsistent

The Colorado Court of Appeals issued its opinion in People v. Sanchez on June 25, 2010.

Intent After Deliberation—First-Degree Murder—Assault—Heat of Passion—Flight Jury Instruction.

Defendant appealed the judgment of conviction entered on a jury verdict finding him guilty of first-degree murder after deliberation, two counts of attempted first-degree murder after deliberation, first-degree assault under the heat of passion, and second-degree assault under the heat of passion. The judgment was affirmed.

Defendant contended that the evidence of intent after deliberation supporting the first-degree murder conviction and the two attempted first-degree murder convictions was insufficient. The Court of Appeals disagreed. The charges required the prosecution to prove defendant deliberated before stabbing the victims. Defendant unfolded the knife before the stabbings and warned the victims before stabbing them. In addition, the jury could have inferred defendant exercised judgment from the locations of the stabbings—the victims’ chest, neck, and back—because of the degree of harm that may result from stabbing a person in those places. Therefore, the circumstances surrounding the stabbings are sufficient to show defendant acted after exercising reflection and judgment.

Defendant also argued that the jury’s verdicts for attempted first-degree murder are inconsistent with its special findings that defendant committed first- and second-degree assault under the heat of passion. Although there is an inconsistency between the jury verdicts for attempted first-degree murder and those for first- and second-degree assault under the heat of passion, the inconsistency does not require reversal because the existence or absence of heat of passion is not a necessary element of either assault charge.

Defendant argued that the jury’s guilty verdicts for attempted first-degree murder are inconsistent with its guilty verdicts for first- and second-degree assault. However, the jury’s guilty verdicts are not necessarily inconsistent because defendant could have possessed the intent to cause death, serious bodily harm, and bodily harm at the same time.

Defendant contended that the trial court erred in giving a flight instruction. The Court disagreed. The prosecution presented evidence that defendant took off running after hearing someone say 911 had been called following the stabbings. He then hid in a trailer. Because such evidence was sufficient to support a flight instruction, the trial court did not err in giving such an instruction.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on June 25, 2010, can be found here.

Tenth Circuit: Opinions, 6/25/10

The Tenth Circuit on Friday issued no published opinions and three unpublished opinions.

Unpublished

Lackey v. USDA

Clemons v. Kansas

Sanaah v. Howell

Tenth Circuit: Opinions, 6/24/10