July 17, 2019

Archives for February 16, 2016

Colorado Court of Appeals: Pattern of Abuse Enhancement Requires Proof of At Least Two Distinct Instances

The Colorado Court of Appeals issued its opinion in People v. Johnson on Thursday, February 11, 2016.

William Edward Johnson was arrested after a domestic disturbance. Shortly after his arrest, his stepdaughter, R.B., reported that Johnson had anally raped her earlier that day and had been sexually abusing her for years. Johnson was charged with one count of sexual abuse on a child by one in a position of trust, aggravated incest, two counts of sexual assault on a child (one of which was dismissed before trial), and a sentence enhancer for committing sexual assault as a pattern of abuse. The jury found Johnson guilty of the anal rape but none of the other listed incidents of sexual assault. The jury convicted Johnson of the pattern of abuse enhancer based on the anal rape and another incident where Johnson was asleep and woke up ejaculating as R.B. was “grinding” on him. The trial court merged all the convictions into the sexual assault on a child as a pattern of abuse conviction and sentenced Johnson to 20 years to life.

On appeal, Johnson argued the evidence was insufficient to support the sentence enhancer, and the court of appeals agreed. The jury had rejected all of the incidents listed by the prosecution except the anal rape and instead wrote in the incident where R.B. was grinding on Johnson while he slept. The court disagreed with Johnson’s contention that the jury was bound to consider only the specifically listed incidents, finding instead that the jury need only agree unanimously that the defendant committed the same act or acts or all of the acts described by the victim. However, evaluating the incident in question, the court found insufficient evidence to support his conviction based on that incident, because he was asleep at the time of the incident and therefore could not have knowingly committed the act. Therefore, only one of the specific incidents found by the jury qualified as sexual assault, and the enhancer could not apply. The court of appeals remanded for resentencing.

Johnson also argued the trial court erred in denying his request for substitute counsel based on his dissatisfaction with the level of communication present with current counsel. The trial court denied Johnson’s motion, finding that counsel’s failure to visit Johnson in prison did not indicate deficient performance, and also noting that it had observed counsel in other trials and she had always provided effective assistance. The court of appeals affirmed the trial court’s denial of Johnson’s motion for substitute counsel, finding that mere difficulties in communication do not constitute deficient performance.

Next, the court evaluated Johnson’s claim that the jury’s access to the videotaped interview of R.B. was unduly prejudicial. The trial court in this case understood its obligation to consider certain restrictions on the jury’s view of the videotape and imposed restrictions. Because the court considered its duty and restricted the jury’s access, the court of appeals found no error.

The court of appeals remanded for resentencing based on the insufficient evidence to support the sentence enhancer and affirmed on all other counts.

Colorado Court of Appeals: Short Shotguns Not Protected by Constitutional Right to Bear Arms

The Colorado Court of Appeals issued its opinion in People v. Sandoval on Thursday, February 11, 2016.

Police executing a search warrant on Miguel Sandoval’s property after a shooting found a short shotgun in the shed in his backyard. Sandoval was convicted after a bench trial of possessing a dangerous weapon and appealed, arguing the district court erred in denying his motion to suppress evidence of the gun in the trial court, contending the shed was outside the scope of the warrant, and in precluding him from asserting the affirmative defenses of the right to bear arms and self-defense. He also argued the evidence was insufficient to support his conviction.

The court of appeals first evaluated the scope of the search warrant at issue. The warrant authorized the police to enter and search “the person, premises, location and any appurtenances thereto” of Sandoval’s residence. Because the shed in question was in Sandoval’s backyard and very close to the residence, the court found that search of the shed was within the scope of the warrant. The court of appeals affirmed the district court’s denial of Sandoval’s suppression motion based on the search of the shed.

Next, the court evaluated the right to bear arms as enunciated in the Second Amendment of the United States Constitution and Article II, section 13 of the Colorado Constitution. The court noted that the Supreme Court declined to hold that the Second Amendment provided a constitutional right to possess dangerous weapons, and short shotguns were typically used solely by criminals. The court found that there was no constitutional right for Sandoval to possess the short shotgun and therefore it was not available as an affirmative defense.

Finally, the court evaluated Sandoval’s sufficiency claim and found the evidence was sufficient to support his conviction. Although Sandoval never identified the particular short shotgun at issue as his, he admitted there was a short shotgun at his residence, the short shotgun at issue was found at Sandoval’s residence in the shed in the backyard, a key to the shed was found at Sandoval’s residence, and a spent shotgun round that had been fired from the short shotgun at issue was found in Sandoval’s bedroom. The court concluded that the evidence was sufficient to support Sandoval’s conviction.

The court of appeals affirmed the district court.

Colorado Court of Appeals: Underrepresentation of Asian Americans in Jury Pool Not Constitutionally Significant

The Colorado Court of Appeals issued its opinion in People v. Luong on Thursday, February 11, 2016.

Man Hao Luong was convicted of several crimes based on acts occurring in 2005 and was sentenced to 96 years imprisonment. On direct appeal, the court of appeals affirmed in part, reversed in part, and remanded, and on remand his sentence was reduced to 64 years. Luong then filed a Crim. P. 35(c) motion for postconviction relief, arguing his counsel was ineffective because he had not investigated the underrepresentation of Asian Americans in the jury pool at Luong’s trial. The postconviction court denied his motion and Luong appealed.

Luong’s original trial took place in Jefferson County, where Asian Americans comprise 2.63% of the population. Of the 100 member jury pool at Luong’s trial, none were Asian American. Luong argued his counsel should have investigated whether jurors of Asian descent were systematically or intentionally underrepresented in his jury as well as other juries in the county. Luong also asserted that the state’s destruction of the master jury list (jury wheel) and jury panel violated his constitutional rights because the destruction prevented him from proving his counsel’s performance prejudiced him. After he filed his appeal but before the court of appeals issued its opinion, the state court administrator informed Luong that the records of the jury wheel and jury panel had been found, and provided a list of the 324 people who reported for jury service on the date of Luong’s trial. Luong moved to remand for reconsideration of that information, but the court of appeals denied his motion.

On appeal, the court of appeals first noted that to establish that the composition of a jury pool is a prima facie violation of the Sixth Amendment, the defendant must prove (1) the excluded group is distinctive, (2) the representation of the group is not fair and reasonable in relation to the number of such persons in the community, and (3) the underrepresentation is due to systematic exclusion of the group in the jury selection process. The court of appeals, acknowledging that Asian Americans are a distinctive group, evaluated whether the representation of Asian Americans in the jury pool was fair and reasonable in relation to the population within the community. The court noted that implicit in Luong’s argument was a presumption that his counsel should have known the percentage of Asians in Jefferson County and been surprised that there were not at least two people of Asian descent in the 100-person jury pool. The court initially noted that counsel’s performance was not grossly incompetent and a hearing on the Crim. P. 35 motion was unnecessary. Next, using statistical analyses, the court found no constitutional violation from having a 100-person jury pool with no Asian Americans. Because the population of Asians in Jefferson County was small, the absolute impact of the absence of Asians on the jury pool was insignificant.

The court of appeals affirmed the denial of Luong’s Crim. P. 35 motion for postconviction relief.