June 17, 2019

Archives for November 24, 2014

Colorado Supreme Court: Announcement Sheet, 11/24/2014

On Monday, November 24, 2014, the Colorado Supreme Court issued one published opinion.

Hickenlooper v. Freedom from Religion Foundation, Inc.

The summary for this case is forthcoming, courtesy of The Colorado Lawyer.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions.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: No Error to Admit Hearsay Statements for Purpose of Rehabilitating Credibility

The Colorado Court of Appeals issued its opinion in People v. Pernell on Thursday, November 20, 2014.

Restraining Order—Sexual Assault—Challenge for Cause—Jury Selection—Motion for Mistrial—Hearsay—Excited Utterance—Rape.

In violation of a restraining order, defendant went to his ex-wife’s home one evening while she and her boyfriend were inside. Defendant forced his way inside, put a gun to the boyfriend’s head and, after allowing the boyfriend to leave, sexually assaulted his ex-wife. He was convicted of violating a restraining order, first-degree burglary, menacing (two counts), second-degree kidnapping, sexual assault, and commission of a violent crime (three counts).

On appeal, defendant contended that the trial court erred in granting the prosecution’s challenge for cause to prospective Juror H, who indicated that she had doubts about her ability to be fair and impartial because her son had been accused of burglary in connection with a domestic violence incident. Although she agreed with defense counsel that she could follow the court’s instructions and reserve judgment until hearing all of the evidence, the record indicated that she was deeply conflicted about her ability to be fair given her experience with her son’s case. Because her answers were equivocal and conflicting, and because it was not satisfied she would render a fair and impartial verdict, the court acted within its discretion in removing her.

Defendant also contended that the trial court erred in not granting his motion for mistrial based on the erroneous admission of an officer’s testimony in which he recounted the ex-wife’s description of the incident twelve hours after it occurred. After the incident and before reporting it to police, she stayed the night at her boyfriend’s and then went home the next morning to change her clothes. Despite the officer’s description of the ex-wife as “distraught,” “traumatized,” and “terrified,” the evidence indicates that the ex-wife had “several independent interludes of reflective thought” that rendered her statements less than spontaneous. Therefore, the trial court erred in admitting the statements as excited utterances. However, the ex-wife’s statements were admissible as prior consistent statements to rehabilitate her credibility after defendant had attacked it. Therefore, any error was harmless. Any further improper testimony was cured by instructing the jury to disregard it. Finally, the cumulative effect of the matters raised on appeal did not deprive defendant of a fair trial.

Defendant also argued that the district court erred in allowing the ex-wife, her boyfriend, and the prosecutor to use the term “rape” rather than “sexual assault” to describe defendant’s conduct. In a sexual assault case, neither a witness nor a prosecutor is barred from using the term “rape” simply because the term no longer appears in the criminal statutes. Therefore, the court did not err in allowing the witnesses and prosecution to use this term. The judgments were affirmed.

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

Colorado Court of Appeals: Academic Theories Addressed in Research Studies Do Not Constitute Evidence

The Colorado Court of Appeals issued its opinion in People v. Bonan on Thursday, November 21, 2014.

Sexual Assault—Post-Conviction Relief—Crim.P. 35(c)—Scientific Research—New Evidence.

In 1988, Bonan was charged with four counts of sexual assault on a child—position of trust, and four counts of second-degree assault on a child. The charges stemmed from allegations by Bonan’s ex-girlfriend’s three young children that he had sexually assaulted them while living with them from July to November 1986. A jury convicted defendant as charged.

In February 2006, Bonan filed a motion for post-conviction relief under Crim.P. 35(c), asserting that recent scientific research has produced an undisputed body of facts that renders the state’s expert opinion testimony foundationless and contradicts the state’s experts’ proposition that they were capable of determining whether a child’s report is accurate. The motion characterized the research as newly discovered evidence. This motion was denied. Bonan filed another motion in 2011, asserting a newly discovered evidence claim similar to his 2006 motion, which was denied as successive and time barred.

On appeal, Bonan contended that the trial court erred in denying his post-conviction motion as untimely. Bonan’s motion was untimely because he did not assert justifiable excuse or excusable neglect in his motion. Further, because academic theories addressed in research studies do not constitute evidence, and therefore cannot constitute new evidence, Bonan had no justifiable excuse or excusable neglect for the late filing of his Crim.P. 35(c) motion.

Bonan further contended that the trial court erred in denying his post-conviction motion as successive. Absent application to the testimony used to convict him, the theories addressed in the academic studies Bonan identifies are not probative of his innocence and therefore do not constitute new evidence under Crim.P. 35(c). Accordingly, the trial court did not err in denying Bonan’s post-conviction motion as successive. The order was affirmed.

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

Colorado Court of Appeals: Court’s Exclusion of Evidence Not Prejudicial Because Defendant Had Opportunity to Raise Complete Defense

The Colorado Court of Appeals issued its opinion in People v. Brown on Thursday, November 20, 2014.

Murder—Evidence—Hearsay—Residual Exception—Search Warrant.

The victim, defendant’s ex-wife, was murdered in her home in the middle of the night. Defendant was charged and found guilty of her murder.

On appeal, defendant argued that the trial court violated his rights by precluding him from presenting evidence that the police investigation into the case was deficient. Specifically, defendant contended that his cross-examination of the prosecution’s expert about the limitations of DNA testing and evidence of a suspicious vehicle in the area on the night of the murder, both of which were excluded by the court, were relevant to show that the police investigation was deficient. However, any error in these rulings was harmless because defendant was not prevented from presenting a complete defense.

Defendant also argued that the trial court erred by admitting, under the residual exception to the hearsay rule (CRE 807), statements the victim made to her sister, her mother, and two coworkers regarding the couple’s relationship. Defendant contended that the statements lacked particularized guarantees of trustworthiness. The trial court was in the best position to evaluate the proffered testimony of the witnesses and to consider the circumstances under which the declarant made the particular statements. Therefore, the trial court did not abuse its discretion in determining that the statements were sufficiently trustworthy as to satisfy CRE 807. Moreover, the court’s findings were sufficient to satisfy the Colorado Constitution’s Confrontation Clause.

Defendant further argued that the trial court erred by failing to suppress evidence police obtained when they executed the warrant because the search exceeded the scope of the warrant. Specifically, defendant contended that the backpack that defendant placed in the vehicle just before police seized his vehicle should not have been included in the search. There is no dispute that the backpack was “within” the vehicle at the time it was seized; therefore, seizing it was not outside the scope of the warrant. The judgment was affirmed.

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

Tenth Circuit: Unpublished Opinions, 11/21/2014

On Friday, November 21, 2014, the Tenth Circuit Court of Appeals issued no published opinion and two unpublished opinions.

United States v. Vaughn

Alarid v. Colvin

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