July 22, 2018

Archives for April 28, 2014

e-Legislative Report: April 28, 2014

CBA Legislative Policy Committee

For readers who are new to CBA legislative activity, the Legislative Policy Committee (LPC) is the CBA’s legislative policy-making arm during the legislative session. The LPC meets weekly during the legislative session to determine CBA positions on requests from the various sections and committees of the Bar Association.

The LPC did not meet on Friday, April 25.

At the Capitol—Week of April 21

A scorecard of the committee and floor work follows.

In the House

Monday, April 21

Passed on 3rd reading.

  • SB 14-123. Concerning the authority of the peace officers standards and training board, and, in connection therewith, providing additional rule-making authority; raising the maximum fee for certification and skills exams; allowing awarding grants to nonprofit organizations; denying certification for municipal violations; and making an appropriation. Vote: 36 yes, 26 no, and 3 excused.
  • SB 14-161. Concerning the modernization of provisions of the “Uniform Election Code of 1992” that ensure voter access for eligible electors, and, in connection therewith, reducing the deadline by which a voter registration application must be submitted via certain methods, altering procedures pertaining to national change-of-address searches, allowing emergency ballots to be obtained for nonmedical reasons, amending provisions relating to military and overseas voters, increasing the penalty for providing false residential information, making the aiding or abetting the provision of false residential information a new felony offense, and making and reducing appropriations. Vote: 42 yes, 20 no, and 3 excused.
  • HB 14-1357. Concerning in-home support services provided in the Medicaid program, and, in connection therewith, making and reducing appropriations. Vote: 48 yes, 14 no, and 3 excused.
  • HB 14-1356. Concerning an increase in the Colorado oil and gas commission’s penalty authority, and, in connection therewith, making an appropriation. Vote: 40 yes, 22 no, and 3 excused.
  • HB 14-1373. Concerning individuals who may claim the property tax exemption for qualifying seniors and disabled veterans. Vote: 58 yes, 4 no, and 3 excused.
  • HB 14-1355. Concerning department of corrections reentry initiatives for successful reintegration of adult offenders into the community, and, in connection therewith, making an appropriation. Vote: 47 yes, 15 no, and 3 excused.
  • HB 14-1334. Concerning the petroleum cleanup and redevelopment fund. Vote: 50 yes, 12 no, and 3 excused.
  • HB 14-1311. Concerning the credit against the state income tax for the costs incurred in connection with the preservation of historic structures, and, in connection therewith, making and reducing appropriations. Vote: 50 yes, 12 no, and 3 excused.
  • HB 14-1368. Concerning the transition of youth ages eighteen through twenty-one who have intellectual and developmental disabilities to the adult program of services for persons with intellectual and developmental disabilities, and, in connection therewith, making and reducing appropriations. Vote: 62 yes, 0 no, and 3 excused.
  • HB 14-1310. Concerning the provision of breath testing devices to law enforcement agencies. Vote: 55 yes, 7 no, and 3 excused.
  • HB 14-1361. Concerning the authority of the state licensing authority to establish equivalencies for retail marijuana products, and, in connection therewith, making an appropriation. Vote: 62 yes, 0 no, and 3 excused.
  • HB 14-1358. Concerning continuation of in-home support services, and, in connection therewith, authorizing in-home support services for spinal cord injury waiver pilot program participants. Vote: 55 yes, 7 no, and 3 excused.
  • SB 14-154. Concerning funds administered by the division of fire prevention and control in the department of public safety. Vote: 62 yes, 0 no, and 3 excused.
  • SB 14-30. Concerning the fee charged to issue a special license plate to a person with a distinguished flying cross that was awarded for valor, and, in connection therewith, making an appropriation. Vote: 59 yes, 3 no, and 3 excused.
  • SB 14-51. Concerning access to records relating to the adoption of children, and, in connection therewith, making an appropriation. Vote: 62 yes, 0 no, and 3 excused.
  • HB 14-1044. Concerning consequences for a parolee who tampers with an electronic monitoring device that the parolee is required to wear as a condition of parole. Vote: 62 yes, 0 no, and 3 excused.
  • HB 14-1371. Concerning property taxation of oil and gas leaseholds and lands, and, in connection therewith, specifying that the wellhead is the point of valuation and taxation for such leaseholds and lands. Vote: 62 yes, 0 no, and 3 excused.
  • HB 14-1353. Concerning powers of appointment. Vote: 62 yes, 0 no, and 3 excused.
  • HB 14-1363. Concerning the nonsubstantive revision of statutes in the Colorado Revised Statutes, as amended, and, in connection therewith, amending or repealing obsolete, imperfect, and inoperative law to preserve the legislative intent, effect, and meaning of the law. Vote: 62 yes, 0 no, and 3 excused.
  • HB 14-1359. Concerning medication synchronization for patients who are prescribed multiple medications. Vote: 58 yes, 4 no, and 3 excused.
  • HB 14-1366. Concerning reasonable restrictions on the sale of edible retail marijuana products. Vote: 62 yes, 0 no, and 3 excused.

Tuesday, April 22

Passed 3rd Reading:

  • SB 14-92. Concerning the creation of the crime of insurance fraud, and, in connection therewith, making an appropriation. Vote: 65 yes and 0 no.
  • HB 14-1362. Concerning great-grandparent visitation with great grandchildren. Vote: 65 yes and 0 no.
  • SB 14-49. Concerning endangering public utility transmission, and, in connection therewith, making an appropriation. Vote: 64 yes and 1 no.

Thursday, April 24

Passed on 3rd reading.

  • HB 14-1383. Concerning the required number of physicians that must be provided to an injured employee for selection of a treating physician in workers’ compensation cases. Vote: 37 yes, 27 no, and 1 excused.
  • HCR 14-1002. Submitting to the registered electors of the state of Colorado an amendment to the Colorado constitution concerning the petition signatures required for a citizen initiated constitutional amendment, and, in connection therewith, requiring a portion of the petition signatures for the amendment be gathered from voters who reside in each Colorado congressional district, increasing the total number of petition signatures required for the amendment, and excluding the repeal of an amendment passed prior to 2015 from these petition signature requirements. Vote: 47 yes and 18 no.
  • HB 14-1372. Concerning unauthorized advertising for adoption purposes. Vote: 65 yes and 0 no.

Friday, April 25

Passed 3rd Reading:

  • HB 14-1360. Concerning the continuation of the regulation of home care agencies by the department of public health and environment, and, in connection therewith, implementing the recommendations of the 2013 sunset report by the department of regulatory agencies, as modified by the legislative sunset committee, and making an appropriation. Vote: 48 yes, 16 no, and 1 excused.
  • HB 14-1380. Concerning the Colorado coroners standards and training board, and, in connection therewith, making an appropriation. Vote: 64 yes, 0 no, and 1 excused.
  • SB 14-117. Concerning the reauthorization of the regulation of real estate appraisers by the board of real estate appraisers through a recreation and reenactment of the relevant statutes incorporating no substantive amendments other than those approved during the first regular session of the 69th general assembly. Vote: 49 yes, 15 no, and 1 excused.
  • SB 14-129. Concerning changes to criminal provisions related to marijuana and, in connection therewith, making an appropriation. Vote: 64 yes, 0 no, and 1 excused.

In the Senate

Monday, April 21

Passed on 3rd Reading:

  • HB 14-1321. Concerning the membership of the Colorado task force on drunk and impaired driving. Vote: 35 yes and 0 no.
  • HB 14-1003. Concerning the exemption from state income tax of income that is earned by a nonresident individual working temporarily in the state to assist with disaster emergency relief activities, and, in connection therewith, making and reducing appropriations. Vote: 35 yes and 0 no.
  • HB 14-1034. Concerning the creation of a wine packaging permit to allow certain alcohol beverage licensees to package wine produced by another wine manufacturer, and, in connection therewith, making an appropriation. Vote: 35 yes and 0 no.
  • HB 14-1042. Concerning access by birth parents to records relating to the relinquishment of parental rights, and, in connection therewith, making an appropriation. Vote: 35 yes and 0 no.
  • HB 14-1228. Concerning the repeal of certain requirements for defensive driving schools attended in accordance with a court order resulting from a violation of a law regulating the operation of a motor vehicle, and, in connection therewith, reducing an appropriation. Vote: 35 yes and 0 no.
  • HB 14-1339. Concerning the creation of the hazardous substance site response fund. Vote: 35 yes and 0 no.
  • SB 14-183. Concerning an increase in the maximum term of a business incentive agreement that a local government enters into with a taxpayer who pays business personal property tax. Vote: 34 yes and 0 no.
  • SB 14-181. Concerning the elimination of the use of automated vehicle identification systems for traffic law enforcement. Vote: 34 yes and 1 no.
  • HB 14-1045. Concerning the continuation of the breast and cervical cancer prevention and treatment program, and, in connection therewith, making and reducing appropriations. Vote: 29 yes and 6 no.
  • HB 14-1185. Concerning the issuance of travel insurance policies. Vote: 35 yes and 0 no.
  • HB 14-1207. Concerning the creation of the household medication take-back program, and, in connection therewith, making and reducing appropriations. Vote: 25 yes and 10 no.
  • HB 14-1006. Concerning the remittance of the marketing and promotion tax collected by lodging establishments in a local marketing district, and, in connection therewith, making and reducing appropriations. Vote: 33 yes and 2 no.

Tuesday, April 22

Passed on 3rd Reading:

  • SB 14-12. Concerning increasing the assistance payment for the program for aid to the needy disabled, and, in connection therewith, making and reducing appropriations. Vote: 22 yes and 13 no.
  • SB 14-14. Concerning the property-related expense assistance grants for low-income seniors and individuals with disabilities, and, in connection therewith, making and reducing appropriations. Vote: 21 yes and 14 no.
  • HB 14-1313. Concerning a requirement that the owner of a pet animal provide a valid rabies vaccination certificate prior to registering the animal with a county. Vote: 23 yes and 12 no.

Wednesday, April 23

Passed on 3rd Reading:

  • SB 14-186. Concerning the aggregation of efficiency projects in small communities in order to attract private sector investment through performance contracting. Vote: 23 yes and 12 no.
  • SB 14-184. Concerning oversight of the industrial hemp program. Vote: 35 yes and 0 no.
  • HB 14-1260. Concerning the creation of three mandatory minimum presumptive ranges for defendants convicted of a felony sex offense involving intrusion against a child who is under 12 years of age when the adult defendant is at least 10 years older that has one of the ranges starting at ten years as the minimum in the range, and, in connection therewith, creating an indeterminate lifetime sentence with a mandatory minimum presumptive range of 10 to 16 years for a class 4 felony; a mandatory minimum presumptive range of 18 to 32 years for a class 3 felony; and a mandatory minimum presumptive range of 24 to 48 years for a class 2 felony. Vote: 35 yes and 0 no.
  • HB 14-1061. Concerning sentences imposing monetary payments in criminal actions, and, in connection therewith, eliminating prison sentences for persons who are unable to pay criminal monetary penalties. Vote: 34 yes and 1 no.
  • HB 14-1280. Concerning limits on liability for agritourism. Vote: 35 yes and 0 no.
  • HB 14-1354. Concerning the ability of a county clerk and recorder to seek judicial review of final action by the secretary of state relating to elections. Vote: 31 yes and 4 no.
  • HB 14-1288. Concerning information available regarding personal belief exemptions to immunization requirements for children prior to attending school. Vote: 19 yes and 16 no.

Friday, April 25

Passed 3rd Reading:

  • HB 14-1347. Concerning statutorily established time periods that are multiples of seven days. Vote: 35 yes and 0 no.
  • HB 14-1344. Concerning the use of electronic means to document transactions related to the business of insurance. Vote: 35 yes and 0 no.
  • HB 14-1266. Concerning the penalties for certain value-based offenses, and, in connection therewith, reducing an appropriation. Vote: 35 yes and 0 no.
  • SB 14-194. Concerning the issuance of identification documents by the department of revenue, and, in connection therewith, making an appropriation. Vote: 35 yes and 0 no.
  • HB 14-1199. Concerning changes to the regulation of consumer goods service contracts, and, in connection therewith, making an appropriation. Vote: 35 yes and 0 no.
  • HB 14-1162. Concerning protection of the victim of a sexual assault in cases where a child was conceived as a result of the sexual assault, and, in connection therewith, making legislative changes in response to the study by and the report of the recommendations from the task force on children conceived through rape. Vote: 35 yes and 0 no.
  • HB 14-1144. Concerning measures to improve the performance of district attorneys, and, in connection therewith, making and reducing appropriations. Vote: 33 yes and 2 no.
  • SB 14-3. Concerning child care assistance for working families, and, in connection therewith, making an appropriation. Vote: 19 yes and 16 no.
  • SB 14-176. Concerning crimes related to entities that trade in stolen vehicles, and, in connection therewith, making an appropriation. Vote: 35 yes and 0 no.
  • SB 14-187. Concerning creation of the Colorado commission on affordable health care to analyze health care costs in Colorado, and, in connection therewith, making an appropriation. Vote: 23 yes and 12 no.
  • SB 14-164. Concerning aerial firefighting efforts through the division of fire prevention and control in the department of public safety, and, in connection therewith, implementing recommendations made by the division regarding the Colorado firefighting air corps. Vote: 35 yes and 0 no.

Stay tuned for 10 Bills of Interest.

Colorado Supreme Court: Announcement Sheet, 4/28/14

On Monday, April 28, 2014, the Colorado Supreme Court issued one published opinion.

People v. Knedler

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions. The case announcement sheet is available here.

Colorado Court of Appeals: Under Totality of Circumstances, No Error for Prosecution to Request Fifth Amendment Advisement for Defense Witness

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

Theft—Fair Trial—Use Immunity.

Defendant, a mortgage broker and banker, helped the victim refinance his house to obtain cash needed to purchase a second house to use as a rental property. Later, defendant helped the victim take out a home equity loan on the rental property. The net proceeds of the home equity loan were approximately $76,000. Defendant arranged for the victim to make payments on both mortgages directly to defendant, who represented he was an agent for the mortgage lender. The victim requested statements, and defendant generated his own receipts and statements for the victim. When the victim attempted to pay the remaining balance of both loans in the amount he believed was outstanding, he discovered the mortgages had not been fully paid and reported defendant to the police for theft.

Defendant testified he had received the victim’s money from the home equity loan but did not apply it to the victim’s primary residence, claiming the victim loaned him the $76,000 in a transaction outside the home equity loan closing. Defendant claimed this loan was evidenced by a promissory note, which he was unable to produce. Defendant also testified he had paid interest to the victim and to victim’s mortgage lender. A jury found defendant guilty of theft of $20,000 or more and sentenced him to five years of probation.

On appeal, defendant claimed he was denied his constitutional rights to a fair trial and to present evidence on his own behalf. He also alleged it was error not to require the prosecutor to request use immunity for a defense witness.

At trial, defendant called to testify a former employee of the title company, who was the closer of the second loan. The prosecutor asked for a bench conference, during which he advised the court that the employee should be advised of her Fifth Amendment rights because if she testified that she notarized the loan documents, the victim and his father were prepared to testify she wasn’t there when he signed. Following additional colloquy in chambers, the court advised the closer of the possible penalties for a first-degree perjury conviction. The court offered to appoint counsel for the loan closer, and she agreed. Following consultation with the attorney, she exercised her Fifth Amendment right and refused to testify.

The Court of Appeals looked to the totality of the circumstances to determine whether the prosecution’s actions constituted substantial governmental interference with a defendant’s right to present a defense. The Court reviewed six factors and concluded that defendant had not established by a preponderance of the evidence that this perjury warning and advisement deprived him of a fair trial.

Defendant also had requested that the court grant immunity to the loan closer or, alternatively, order the prosecutor to request immunity for the loan closer pursuant to CRS § 13-90-118. The court denied the request, and the prosecutor stated it would be “inappropriate” to grant immunity. The Court agreed that only the prosecutor may request immunity for a witness and neither the court nor the defense can require the prosecutor to make such a request.

The Court reviewed and rejected a number of other arguments made by defendant concerning jury instructions, challenge for cause, juror misconduct, and cumulative error. The judgment was affirmed.

Summary and full case available here.

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.

Colorado Court of Appeals: Claims of Error Not Raised in Original Appeal Outside Scope of Appeal on Remand

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

Sentence—CAR 28(k)—Issue on Appeal—Plain Error.

As the result of the prosecution’s appeal of defendant’s initial sentence in Notyce I, this case was specifically remanded to the trial court for resentencing to the twenty-four-year sentence required under the habitual criminal statute. Defendant appealed from that remand proceeding.

Specifically, defendant challenged the way in which the court imposed his sentence on remand. Defendant failed to indicate, however, where he raised this issue in the trial court pursuant to CAR 28(k). Any error in this case was not obvious and, therefore, not plain error. Accordingly, the Court of Appeals declined to address the merits of defendant’s sentencing contention, and the sentence was affirmed.

Summary and full case available here.

Tenth Circuit: United States’ Reservation of Canyonlands National Park Precludes State and County Public Use Claims

The Tenth Circuit Court of Appeals issued its opinion in San Juan County, Utah v. United States on Friday, April 25, 2014.

The United States government reserved Canyonlands National Park in Utah in 1964. Salt Creek Road runs through Canyonlands. It is an unimproved 12.3 mile road that is the primary access route to several points of interest in Canyonlands, including Angel Arch. The United States asserted exclusive control over the road, which the State of Utah and San Juan County, Utah contested was a public right-of-way. The state and county brought suit under the Quiet Title Act, claiming that waiver of sovereign immunity for the United States was appropriate due to the public’s continuous use of the road for ten or more years prior to the federal government’s reservation.

The trial court and the Tenth Circuit noted that continuous use of the road by the public was not enough to establish that the road was a public thoroughfare. Under Utah law, the continuous public use standard has three components – (1) continuous use, (2) as a public thoroughfare, and (3) for ten years or more. Although the state and county established continuous use of the road for at least ten years prior to 1964, they did not provide historical evidence of the road as a public thoroughfare for the ten years preceding 1964. Because the state and county did not meet the time requirement for use of the road, the judgment of the district court rejecting the state and county claims was affirmed.

Tenth Circuit: AEDPA Standard Severely Constrains Tenth Circuit Review as to State Appellate Court Ruling

The Tenth Circuit Court of Appeals issued its opinion in Frost v. Pryor on Friday, April 25, 2014.

Frost was convicted in Kansas state court of aggravated indecent liberties with a child. During the trial, the child’s mother testified about certain medical treatment she sought for the child. Frost instructed his attorney to obtain medical records to rebut the mother’s testimony, but the attorney did not do so. Frost also wanted his attorney to obtain witness testimony that the mother threatened to send him back to prison, which the attorney did not do. Frost moved for a new trial based on ineffective assistance of counsel, but the state court denied his motion and he was sentenced to 204 months in prison. Frost appealed his conviction to the Kansas Court of Appeals based on ineffective assistance of counsel. The Kansas court upheld his conviction, determining that although the trial counsel provided deficient performance by failing to request the child’s medical records, the counsel’s performance did not prejudice Frost. The Kansas Supreme Court declined review.

Frost then sought a writ of habeas corpus due to ineffective assistance of trial counsel regarding the failure to obtain the medical records, and on several other grounds as well. The federal court denied relief on the first ineffective assistance claim relating to the child’s medical records because of the deference owed to state court decisions on the merits under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). The court dismissed Frost’s remaining claims as procedurally barred. However, it issued a certificate of appealability on the sole issue of whether Frost’s trial counsel was unconstitutionally ineffective regarding the failure to obtain the medical records.

Frost appealed to the Tenth Circuit, arguing that the district court incorrectly denied habeas relief based on the ineffective assistance of the trial counsel, and also arguing for relief on his procedurally barred claims. After an extensive analysis of the lower court rulings and AEDPA’s mandates, the Tenth Circuit determined that the severe constraints of AEDPA review precluded reversal and affirmed.

Tenth Circuit: Sentence Enhancement for Drug Crimes with Dangerous Weapon Require Physical Presence of Weapon

The Tenth Circuit Court of Appeals issued its opinion in United States v. Castro-Perez on Friday, April 25, 2014.

Castro-Perez was involved in a cocaine trafficking operation in Jackson, Wyoming that was under investigation by state and federal law enforcement. He sold two ounces of cocaine to an undercover agent, and during the sale the agent asked if Castro-Perez could sell him a gun also. Later that day, after completing the drug transaction, Castro-Perez obtained and sold a pistol to the agent. He pled guilty to one count of distribution of cocaine and one count of being an illegal alien in possession of a firearm, and the probation office recommended a two-level sentencing enhancement because the drug and gun transactions occurred on the same day. The district court applied the enhancement and sentenced Castro-Perez to 63 months in prison and three years’ supervised release.

The Tenth Circuit noted that the sentencing guidelines mandate a two-level enhancement if a dangerous weapon was possessed during the crime. However, according to the undisputed facts of this case, the drug transaction was separate from the gun transaction, and nothing established that the gun was physically located near the drug transaction. The case was remanded to the district court for resentencing.

Tenth Circuit: Unpublished Opinions, 4/28/2014

On Monday, April 28, 2014, the Tenth Circuit Court of Appeals issued five published opinions and three unpublished opinions.

Campbell v. Martin

United States v. Sanchez-Beltran

Muller v. Islands at Rio Rancho Homeowners Association

Case summaries are not provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.

Colorado Court of Appeals: Conviction Predicated on Multiple Offenses Need Only Have One of Lesser Included Offenses Merged

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

CRE 901—Authentication—Evidence—Reckless Driving—Vehicular Eluding—Driving With a Revoked License—Lesser Included Offense.

After being pulled over by a police officer, Anton Dutton accelerated his car and fled the scene. To protect the safety of the public, the officer ceased his pursuit and later identified Dutton through the vehicle’s owner. At trial, Dutton’s defense was that he was not the driver of the vehicle.

On appeal, Dutton argued that the trial court abused its discretion in admitting a statement from a phone call to a police officer that was insufficiently authenticated under CRE 901 as a call made by Dutton. There was sufficient evidence in the record, however, to authenticate the phone call, because the timing of the call to the officer and the caller’s self-identification as “Anton Dutton” allowed the jury to reasonably infer that Dutton received the officer’s message to call him through the owner and then promptly responded to it by calling the officer. Therefore, the court did not err in admitting such testimony.

Defendant also argued that there was insufficient evidence to support his reckless driving and vehicular eluding convictions. Based on the officer’s testimony, there was sufficient evidence for the jury to find that Dutton drove the vehicle recklessly, given testimony that Dutton was driving at unsafe speeds and almost hit a pedestrian. Thus, there was evidence to support the jury’s finding that he drove “in such a manner as to indicate either a wanton or a willful disregard for the safety of persons or property” and “consciously disregard[ed] a substantial and unjustifiable risk” of harm.

Dutton argued that his reckless driving and vehicular eluding convictions should be vacated because they are lesser included offenses of aggravated driving with a revoked license (DARP). The jury found that Dutton’s conviction for aggravated DARP was predicated on him committing vehicular eluding and reckless driving, which are both lesser included offenses of aggravated DARP. However, where a conviction is predicated on more than one offense, only one of those offenses need be merged, because only one predicate offense is essential to support the greater offense. Therefore, Dutton’s conviction for reckless driving must merge under his conviction for aggravated DARP on remand. The judgment was affirmed in part and vacated in part, and the case was remanded with directions.

 

Summary and full case available here.

Colorado Court of Appeals: Parental Consent Not Required for Victim to Consent to Recorded Phone Conversation

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

Motion to Suppress Statements—Challenge for Cause.

Until the victim, C.S., was almost 12 years old, he lived with his great-grandmother. Defendant, the great-grandmother’s brother, often visited the home. When the victim was 11 years old, defendant inappropriately touched the victim and then progressed to performing oral sex on the victim.

Defendant was arrested and, after waiving his Miranda rights, substantially admitted the victim’s allegations regarding sexual contact. He subsequently was charged with and found guilty of sexual assault on a child, sexual assault on a child by a person in a position of trust, and sexual assault on a child as part of a pattern of abuse.

On appeal, defendant contended that the trial court erred in denying his motion to suppress the statements he made during his phone conversation with the victim, which were recorded by the police. Contrary to defendant’s argument, however, parental presence was not required for the victim’s consent to record the conversation with defendant to be valid.

Defendant also contended that the trial court erred when it denied his motion to suppress the statements he made during a custodial interrogation. The record supports the trial court’s finding that defendant did not unequivocally invoke his right to silence. Accordingly, the trial court did not err in denying defendant’s motion to suppress.

Defendant further contended that the trial court erred in denying his challenge for cause to Juror M. On her juror questionnaire, Juror M indicated that a relative had been the victim of a sexual assault, and that this would affect her ability to be a fair and impartial juror. She also wrote that she believed she could not be a fair and impartial juror because the case involved “a crime against a child.” The court thereafter questioned Juror M, who affirmed that she understood that the prosecution carried the burden of proof, and that she would listen to all the evidence and base her decision on the evidence despite her background. Therefore, the trial court did not abuse its discretion in denying defendant’s causal challenge to Juror M.

Summary and full case available here.

Colorado Court of Appeals: Defendant Not Entitled to Second Amendment Instruction for Firearm Used In Conjunction with Illegal Drug Transactions

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

Jury Instructions—Challenge for Cause—Deadly Weapon—Evidence—Right to Bear Arms—Controlled Substance—Miranda Rights—Motion to Suppress Statements—Res Gestae Evidence.

Defendant was at home with his wife, four children, brother, and mother when intruders who apparently intended to rob defendant fired shots into the apartment. Defendant grabbed a handgun and fired shots toward the intruders. Defendant’s 10-year-old daughter was caught in the crossfire. She was shot in the head and died at the scene.

The People charged defendant with child abuse resulting in death, possession with intent to distribute marijuana, possession of marijuana–eight ounces or more, and one special offender count under the special offender statute’s deadly weapon provision. The People alleged that defendant was an armed drug dealer who sold drugs out of his home, thereby placing his daughter in a situation that posed a threat of injury to her health. The People also alleged that defendant possessed the handgun in connection with his drug dealing business.

Regarding defendant’s contention on appeal for an elemental jury instruction concerning possession of a deadly weapon under CRS § 18-18-407(1)(f), the Court of Appeals ruled that the instructions as a whole properly informed the jury of the elements of the sentence aggravator and the proof beyond a reasonable doubt burden. The Court also ruled that there was sufficient evidence to support the jury’s findings that defendant possessed both a controlled substance and a deadly weapon, and to infer a nexus between the controlled substance and the weapon.

The Court determined that because the U.S. and Colorado Constitutions do not protect the unlawful purpose of possessing a firearm in furtherance of a drug offense, the Second Amendment right to bear arms in self-defense does not infringe on the constitutionally protected right to bear arms. Defendant was not entitled to the statute’s instruction. Further, because the jury found that defendant’s possession of the handgun was related to his drug offense, the statute was not unconstitutional as applied to him, nor was it unconstitutionally vague.

The Court did not agree with defendant’s argument that his statements to law enforcement officers should have been suppressed. Defendant was not in custody and was not being interrogated when he provided his statement to the officer at the scene or in the waiting room at the police station, and defendant voluntarily made statements to police after they advised him of his Miranda rights. Therefore, the trial court did not err in denying defendant’s motion to suppress.

The Court ruled that the trial court did not err in denying defendant’s causal challenge to a juror who worked as a reporter for The Denver Post. The record supported the court’s finding that this juror could “do what the law requires” and could handle any consequences of his relationship with law enforcement agencies.

Defendant contended that the trial court erred when it admitted, as res gestae, evidence concerning his prior acts of buying, selling, and receiving marijuana. This evidence, however, was relevant as to defendant’s knowledge and intent to distribute the marijuana, his possession of a deadly weapon in connection with that offense, and the dangerous circumstances in which defendant allowed his daughter to live. Therefore, the court did not err in admitting it. The judgment and sentence were affirmed.

Summary and full case available here.