July 23, 2019

Archives for October 13, 2015

Colorado Court of Appeals: Appeals Court Must Assume Omitted Trial Transcripts Would Support Lower Court’s Order

The Colorado Court of Appeals issued its opinion in People v. Duran on Thursday, October 8, 2015.

Adequate Record on Appeal—Trial Transcripts—Ineffective Assistance of Counsel.

Duran was convicted of kidnapping, sexual assault, menacing, stalking, and violation of a protective order. He filed a post-conviction motion, arguing that he had received ineffective assistance of trial and appellate counsel. The motion was denied without a hearing. Duran then filed a timely notice of appeal but did not include transcripts in the appellate record.

The People argued that because the trial transcripts were not included in the appellate record, the Court of Appeals must assume they would support the trial court’s order and affirm. To prove ineffective assistance of counsel, Duran needed to show that counsel’s performance was deficient and that he was prejudiced by counsel’s errors. In ruling on Duran’s motion, the trial court properly relied on its review of the trial record. Therefore, without an adequate record on appeal, it must be presumed that the court’s order was correct. The trial court’s order rejecting these claims was affirmed.

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

Colorado Court of Appeals: No Error in Admission of Phone Call to Show Context for Defendant’s Statements

The Colorado Court of Appeals issued its opinion in People v. Smalley on Thursday, October 8, 2015.

Hearsay—Admissions—Prosecutorial Misconduct—Jury—Recorded Statements.

Smalley was convicted of possession of a weapon by a previous offender, a felony. On appeal, he contended that the trial court erred in admitting the recording of his phone call from jail to a woman named Jennifer Dressler because Dressler’s statements were hearsay. A defendant’s own out-of-court statements are not hearsay when offered against the defendant. The statements made by Dressler during the conversation were not hearsay because they were offered to provide context for defendant’s statements and not for the truth of the matter asserted.

Smalley next contended that the trial court erred in permitting the prosecutor to use Dressler’s statements for the truth of the matter asserted in closing arguments. Any improper argument, however, did not rise to the level of plain error.

Smalley further contended that the trial court erred by allowing the jury unfettered access during deliberations to recordings of the Dressler call and two other phone calls to which Smalley was a party. The court properly exercised its overall discretion in giving the jury access to the recorded statements during its deliberations, and the court properly gave the jury a limiting instruction.

Finally, Smalley contended, and the Court of Appeals agreed, that the trial court erred in not giving him an opportunity to speak on his own behalf at his sentencing hearing. The Court applied the plain error standard to determine whether the error warranted reversal. Here, the record shows that the trial court did not directly address Smalley or personally invite him to speak. The error was obvious and substantial, and it cast serious doubt on the reliability of the sentence. Accordingly, the sentence was vacated and the case was remanded for resentencing to allow Smalley an opportunity to speak on his own behalf.

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

Colorado Court of Appeals: Psychiatrist’s Brief Statements Tending to Imply Guilt Harmless

The Colorado Court of Appeals issued its opinion in People v. Marko on Thursday, October 8, 2015.

First-Degree Murder—Sexual Assault—Not Guilty by Reason of Insanity—Challenge for Cause—Mistrial—Miranda—Motion to Suppress—Search Warrant—Prosecutorial Misconduct—Military—Right to Counsel—Voluntariness—Merger—Multiplicity.

The victim met with Marko after knowing him a few months through an online social network account. Marko admitted driving the victim to the mountains, where he knocked her unconscious, sexually assaulted her, blindfolded and gagged her, and cut her throat with a knife, killing her. At trial, a jury rejected Marko’s insanity defense and found him guilty of first-degree murder, sexual assault, and attempted sexual assault.

On appeal, Marko argued that the court erred in denying the challenge for cause to Juror C because Juror C made un-rehabilitated statements indicating an inability to follow the law on the insanity defense. Any error was harmless because Juror C did not serve on the jury, and Marko failed to show that he was prejudiced by it.

Marko also argued that the trial court erred in denying his motion for a mistrial after Juror M expressed concerns in front of the other jurors that Marko would be released in a short period of time if he were found not guilty by reason of insanity (NGRI). Juror M’s statements, however, did not indicate that he had any personal knowledge regarding how long those found NGRI were committed. Therefore, it could not be shown that the statements affected the verdict merely because they were improper, and the trial court did not abuse its discretion in failing to declare a mistrial.

Marko further argued that the trial court erroneously concluded that he was not in custody during the portion of the October 11 interview with the sheriff’s officers that occurred before he was advised of his Miranda rights, and thus the court erred in denying his motion to suppress the statements he made at that time. Marko was subject to restraint on his freedom of movement by virtue of his position in the military. However, because Marko was informed at the outset of the interview that he was not under arrest and was free to go at any time, he was not in custody during this portion of the interview. After Marko was advised of his Miranda rights, he did not thereafter properly invoke his right to silence by stating that he wanted to go home. Therefore, his statements were voluntary. Additionally, Marko did not invoke his right to counsel by stating he wanted an attorney only if the detective was going to administer a truth verification exam. Therefore, the trial court did not err in denying his motion to suppress.

Additionally, Marko argued that the trial court erred in not suppressing the evidence obtained from the search of his barracks room because the search was not conducted pursuant to a valid search warrant. Even if the search warrant was invalid, the law enforcement officers involved in obtaining and executing the warrant acted in an objectively reasonable manner. Therefore, the trial court did not err.

Marko also argued that the psychiatrist’s testimony violated CRS § 16-8-107(1)(a) and (1.5)(a) because the psychiatrist who performed his court-ordered sanity examination testified that Marko knew his actions were wrong rather than confining his testimony to whether Marko had the capacity to distinguish right from wrong or form the culpable mental state at the time of the offense. Evidence acquired for the first time from communications derived from a defendant’s mental processes during the court-ordered examination is admissible only as to the issue of insanity. Therefore, the psychiatrist’s statements that Marko knew the wrongfulness of his actions violated CRS § 16-8-107 and defendant’s right against self-incrimination. However, any error was harmless beyond a reasonable doubt because the other evidence regarding this issue was substantial, the psychiatrist’s comments were minimal, and the prosecution limited her comments to issues raised by the NGRI plea.

Marko additionally argued that the prosecutor made several statements during voir dire and closing argument that constituted prosecutorial misconduct. Although some of the statements were improper, they did not require reversal.

Finally, Marko argued, and the Court of Appeals agreed, that his attempted sexual assault convictions must be vacated under the doctrine of merger because the attempted sexual assault charges are lesser included offenses of the sexual assault charges. The judgment was affirmed in part, Marco’s convictions and sentences for attempted sexual assault were vacated, and the case was remanded with directions.

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

Tenth Circuit: Special Conditions of Supervised Release Require Particularized Findings of Fact

The Tenth Circuit Court of Appeals issued its opinion in United States v. Martinez-Torres on Friday, July 31, 2015.

Belisario Dominguez Martinez-Torres pleaded guilty in New Mexico District Court in 2008 to possession with intent to distribute 50 kilograms or more of marijuana. He was sentenced to 30 months’ imprisonment followed by three years of supervised release. The district court imposed special conditions of supervised release and subsequently modified those conditions. Later, the probation office filed a request to revoke supervised release, alleging Defendant violated a new special condition by failing to return to his residential reentry center. Defense counsel asked the court to fashion a sentence that would allow Defendant to meet his familial obligations, noting Defendant had not committed any crimes, was employed, and did not use alcohol or drugs. The district court imposed a sentence of two months’ imprisonment and two years of supervised release with seven special conditions, including three that became the subject of the appeal: (1) a restriction on the use or possession of alcohol or other substances, (2) sex offender evaluation and treatment based on a prior conviction, and (3) a prohibition on possession or viewing of any pornographic material.

Defendant objected only to the third condition in district court but on appeal argued all three were impermissible. The government conceded the first two restrictions were impermissible and the Tenth Circuit agreed. The Tenth Circuit considered the reasonableness of the third restriction after admonishing that if the parties had devoted more time at sentencing to issues beyond incarceration, these issues would not be before its docket as they are all too often. Addressing the issues at hand, the Tenth Circuit agreed with Defendant that the pornography restriction is not reasonably related to his history or other statutory factors. The Tenth Circuit noted that the district court’s sole expressed reason for the restriction was Defendant’s prior sexual offense, and stated that that was not enough to justify the restriction. The district court needed to make an individualized assessment of whether it was appropriate for Defendant. The Tenth Circuit analyzed other cases in which similar restrictions were imposed and determined that the lack of an individualized inquiry in Defendant’s case required reversal of the restriction.

The Tenth Circuit reversed the imposition of the three special conditions and remanded to the district court.

Tenth Circuit: Lawyer’s Job is to Object When Court Commits Error

The Tenth Circuit Court of Appeals issued its opinion in United States v. Craig on Monday, July 27, 2015.

David Craig was convicted of possession of a stolen firearm and imprisoned. Upon release, he violated conditions of his supervised release. A revocation hearing was held on August 14, 2014, and Mr. Craig stipulated to various violations of his supervised release. The court stated its proposed findings, noted the applicable statutory maximum and Guidelines range, and announced its tentative sentence. At no point did Mr. Craig attempt to make a statement despite invitations to do so from the court. Mr. Craig appealed his sentence based on the district court’s denial of an opportunity to allocute.

The Tenth Circuit evaluated Mr. Craig’s claims under plain error review, declining his invitation to subject them to de novo review. The Tenth Circuit found that Mr. Craig’s counsel could easily have requested an opportunity for Mr. Craig to allocute at multiple points in the proceeding. The Tenth Circuit rejected counsel’s argument that it would have been impolite or unprofessional for him to interrupt the judge, noting that it is a lawyer’s job to object when the court is committing error.

The district court’s sentence was affirmed.