August 18, 2019

Archives for September 29, 2015

Colorado Court of Appeals: Momentary Eye Contact Sufficient to Support Bail Bond Violation Charge

The Colorado Court of Appeals issued its opinion in People v. Serra on Thursday, September 28, 2015.

Bail Bond Conditions— Protective Order—Harassment—Evidence—Contact—Character—Prosecutorial Misconduct.

Serra was the elected district attorney for the Seventh Judicial District when he was arrested and charged with unlawful sexual contact and extortion. The victim in this case, who had worked for Serra at the district attorney’s office for several years before his arrest, was also a named victim in the sexual contact case. Serra was released on a bail bond pending trial. A condition of the bond was that he have no contact with the victim. Several months before the date of the preliminary hearing in the unlawful sexual contact case, Serra encountered the victim at a department store. Based on that encounter, he was charged and convicted of violation of his bail bond conditions, violation of a protective order, and harassment.

On appeal, Serra argued that the evidence was insufficient to support his convictions. The evidence that Serra happened upon the victim, stared at her for 10 to 15 seconds, and made a facial expression supported his convictions for violation of bond conditions and violation of a protection order. The evidence was insufficient, however, to support his conviction for harassment because there was no evidence that he followed the victim. Therefore, the harassment conviction was vacated.

Serra argued that the trial court erred in defining the term “contact” for the jury and that it incorrectly defined the term. The term “contact,” as used in CRS §§ 18-8-212 and 18-6-803.5, has a commonly accepted and understood meaning. Thus, a further clarifying definition was not required to inform the jury of the governing law. However, the court’s definition of “contact” did not state the plain and ordinary meaning of the term. In light of the minimal amount of evidence establishing the element of contact, this error was not harmless. Therefore, Serra’s convictions for violation of bond conditions and violation of a protection order were reversed.

Serra also argued that the trial court erred in admitting evidence of the victim’s character for truthfulness. Because defense counsel’s cross-examination of the victim did not amount to an attack on her character for truthfulness, testimony that she was a truthful person was inadmissible. On remand, the trial court should not admit evidence that the victim is truthful unless her character for truthfulness is attacked first.

Serra contended that evidence of his bad character was improperly admitted. The witnesses’ testimony about their experiences with Serra’s smirk constituted “other acts” evidence. It was relevant here because it established that Serra used a smirk to communicate. If the testimony is offered as evidence on retrial, the trial court likewise must evaluate it for admissibility under CRE 404(b).

Finally, Serra contended that some of the statements the prosecutor made in closing were improper. On remand, the prosecutor should only refer to facts admitted in evidence and must not use the words “lie,” “BS,” “deceit,” or similar terms to refer to Serra’s testimony or defense counsel’s argument.

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

Colorado Court of Appeals: Ex-Girlfriend Lacked Actual and Apparent Authority to Consent to Search

The Colorado Court of Appeals issued its opinion in People v. Morehead on Thursday, September 25, 2015.

Warrantless Search—Consent—Actual and Apparent Authority.

After defendant kicked his girlfriend, N.H., out of his house, she gave consent for the police to search defendant’s residence. Without a warrant, the police searched a portion of defendant’s residence and found illegal gambling machines and padlocked doors. A second search was conducted pursuant to a warrant, and that search revealed incriminating evidence that defendant was involved in dealing methamphetamine and illegal gambling. He was found guilty of possession of methamphetamine, possession of methamphetamine with intent to distribute, and seven gambling charges.

On appeal, defendant contended that the trial court erred in determining that N.H. had authority to consent to the warrantless search of his house. At the relevant time, N.H. was given access to the house to move her possessions out. Thus, N.H. did not enjoy “mutual use and joint access or control” of the residence “for most purposes.” Accordingly, the People failed to prove that N.H. had actual authority to consent to the search of the common areas of defendant’s house. Further, the objection by defendant’s son to N.H.’s entry, combined with the strong appearance that she was moving out and had limited access to at least one critical entrance to the residence, should have alerted the police to inquire further into whether N.H. had authority to enter. Thus, she also did not have apparent authority to consent to the search, and the warrantless search of defendant’s house violated the Fourth Amendment. Because it could not be determined whether defendant’s conviction was surely unattributable to the illegal search, the trial court’s suppression order and defendant’s conviction were reversed, and the case was remanded for further proceedings.

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

Colorado Court of Appeals: Officer’s Observation of Used Marijuana Pipe Sufficient to Provide Probable Cause for Search of Car

The Colorado Court of Appeals issued its opinion in People v. Verigan on Thursday, September 25, 2015.

Warrantless Search of a Vehicle—Probable Cause—Motion to Suppress Evidence—Miranda Warning—Voluntary Statements.

After Verigan’s vehicle was pulled over for a routine traffic stop, in which Verigan was a passenger in the front seat, officers found methamphetamine and drug paraphernalia in the vehicle. She was found guilty of possession of two grams or less of a controlled substance and possession of drug paraphernalia.

On appeal, Verigan argued that the evidence obtained from the search of her vehicle should have been suppressed because Officer Mitchell’s observation of a used marijuana pipe and an unlabeled pill bottle, without more, did not give the officers probable cause to search the vehicle. The officer’s observation of a used marijuana pipe containing a burned substance that the officer could reasonably infer to be marijuana supported a reasonable belief that the vehicle could have contained marijuana, an illegal drug at the time of the search in 2011. Therefore, there was probable cause for the search of Verigan’s car, and the trial court properly denied her motion to suppress the evidence discovered during that search.

Verigan further argued that the trial court erred by denying her motion to suppress the statements she made to police at the scene and later at the station. Based on the totality of the circumstances, a reasonable person in Verigan’s situation would have had reason to believe that her freedom of action had been curtailed to the degree associated with a formal arrest and that she was in custody for Miranda purposes even though she had not been given a Miranda warning. Accordingly, the trial court erred by failing to suppress the statements she made to the officers before the Miranda advisement was given. However, because all of the improperly admitted statements that Verigan made in the pre-advisement interrogation were voluntary, and she repeated those statements in her properly admitted post-advisement statement, the improper admission of the pre-advisement statements was harmless beyond a reasonable doubt. The judgment was affirmed.

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

Tenth Circuit: Unpublished Opinions, 9/28/2015

On Monday, September 28, 2015, the Tenth Circuit Court of Appeals issued no published opinion and six unpublished opinions.

Schlecht v. Lockheed Martin Corp.

United States v. Richardson

Casillas-Casillas v. Lynch

Vigil v. Colvin

Carrillo v. Zupan

Reid v. United States

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