May 21, 2019

Archives for December 8, 2014

Colorado Court of Appeals: Jurors Appropriately Allowed Unfettered Access to Video of Defendant’s Voluntary and Admissible Confession During Deliberations

The Colorado Court of Appeals issued its opinion in People v. Gingles on Thursday, December 4, 2014.

Jury—Evidence—Videotaped Admission—Deliberations—Jury Instructions—Invited Error—Vehicular Eluding—Double Jeopardy—Separate Volitional Acts.

Defendant fled from police in a stolen vehicle. After that vehicle broke down, he pushed a driver out of another vehicle and fled in that vehicle. A jury found defendant guilty, as charged, of second-degree kidnapping, one count of aggravated motor vehicle theft, and two counts of vehicular eluding. The jury also found him guilty of robbery and third-degree assault, as lesser-included offenses of his other charges.

On appeal, defendant contended that the trial court erred in permitting the jury to have unfettered access to the video recording of his confession. Jurors are allowed unrestricted access during deliberations to a defendant’s voluntary and otherwise admissible confession. Therefore, the court did not err.

Defendant also contended that the trial court erroneously instructed the jury that he could be convicted of robbery based on the use of force, threats, or intimidation “against any person” rather than against the innocent driver specifically. Because defense counsel proposed the instruction, the invited error doctrine bars defendant’s challenge to it on appeal. The case was remanded with instructions to correct the mittimus to reflect that defendant was convicted of robbery, not aggravated robbery.

Defendant further contented that his two convictions for vehicular eluding were imposed in violation of constitutional double jeopardy guarantees. Defendant committed two different volitional acts directed at two different officers at different times. Therefore, the evidence was sufficient to support two separate convictions of vehicular eluding. The judgments were affirmed and the case was remanded with directions.

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

Colorado Court of Appeals: Evidence of Other Bad Acts Evaluated on Case-by-Case Basis

The Colorado Court of Appeals issued its opinion in People v. Whitlock on Thursday, December 4, 2014.

Sexual Assault on a Child—Prior Bad Acts—Sentencing—Probation—Sex Offender Treatment—Fifth Amendment.

According to the victim, when she was 11 years old, defendant (her stepfather at the time) went into her room one night while she was sleeping, lay down beside her, removed her underwear, and touched her vagina. When she woke up and told him to stop, defendant left the room. Several years later, the victim told her new stepfather and her mother about the incident, who then contacted the police. The jury later convicted defendant of sexual assault on a child and sexual assault on a child by one in a position of trust (victim under 15 years old).

On appeal, defendant contended that the trial court reversibly erred when it admitted evidence of his prior bad acts. The victim’s mother testified that during the last year of her relationship with defendant, she would wake up with defendant having sex with her and defendant would refuse to stop when she objected. The victim’s sister testified that defendant watched her undress one time and, on a separate occasion when defendant had picked her up from work, he stopped the car and showed her his intimate parts. The evidence regarding the victim’s mother was probative of defendant’s method and intent of seeking sexual gratification from individuals who were isolated and sleeping. Conversely, the evidence involving the victim’s sister was not probative of any relevant evidence, so the trial court erred in admitting it. However, such error was harmless given defendant’s admissions regarding his assault on the victim.

Defendant also contended that the trial court erroneously sentenced him to imprisonment rather than probation. Both the probation department and a psychosexual evaluator recommended that defendant be sentenced to probation with sex offender treatment. However, defendant stated his intent to invoke his Fifth Amendment right against self-incrimination during sex offender treatment sessions. Because the court determined that defendant could not successfully complete treatment without admitting any wrongdoing, it did not abuse its discretion in sentencing him to imprisonment. The judgments and sentences were affirmed.

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

 

Colorado Court of Appeals: Trial Delays Caused by Plaintiff’s Counsel Justified Dismissal with Prejudice

The Colorado Court of Appeals issued its opinion in Kallas v. Spinozzi, O.D. on Thursday, December 4, 2014.

Professional Negligence—Sanctions—Motion to Strike Expert—Failure to Prosecute—Motion to Continue.

Kallas filed this action against Spinozzi, a licensed optometrist, asserting claims of professional negligence, battery, and lack of informed consent arising from a procedure Spinozzi performed on her right eye. The court granted Spinozzi’s motion to dismiss the case with prejudice for failure to prosecute. This occurred after a three-year delay; after Kallas’s attorney refused to remove himself from the case despite serious health issues; after Kallas’s attorney refused to cooperate in production of documents and refused to schedule Kallas’s expert for deposition; and after Kallas’s attorney failed to appear for numerous hearings and trial.

On appeal, Kallas contended that the trial court abused its discretion by granting Spinozzi’s motion to strike Kallas’s expert. Trial courts have broad discretion to manage the discovery process, including the ability to impose sanctions. Here, Kallas failed to cooperate in scheduling her expert’s deposition and failed to produce her expert’s file; Kallas’s discovery violation was neither substantially justified nor harmless; and Spinozzi was unfairly prejudiced by Kallas’s uncooperative conduct. For those reasons, the sanction of striking Kallas’s expert was not an abuse of discretion, even though it ultimately led to the dismissal of the case.

Kallas also contended that the trial court abused its discretion when it dismissed her claims for failure to prosecute on the day of trial. In addition to failing to schedule the expert deposition, Kallas’s attorney failed to attend a court-ordered settlement conference; failed to appear at the mandatory pretrial readiness conference; and failed to file a trial management order, witness list, exhibit list, or jury instructions. Therefore, the trial court did not err in dismissing the case.

Kallas further argued that the trial court erred in denying her motion to continue the April 15 trial. The record supports the trial court’s finding that the health problems faced by Kallas’s counsel when he moved for a continuance were foreseeable. Moreover, the issues raised in Kallas’s motion for a continuance were the same issues that the trial court predicted and proactively tried to address months before. The record also supports the trial court’s finding that Spinozzi would be substantially prejudiced by a continuance of the trial date. For these reasons, the trial court did not abuse its discretion in denying Kallas’s motion for a continuance. The judgment was affirmed.

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

Tenth Circuit: Unpublished Opinions, 12/5/2014

On Friday, December 5, 2014, the Tenth Circuit Court of Appeals issued two published opinions and seven unpublished opinions.

United States v. McKeighan

United States v. Haley

Hawker v. Sandy City Corp.

Myers v. United States

United States v. Bragg

United States v. Lamas

United States v. Rodriguez

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