July 22, 2018

Archives for July 3, 2018

Hon. Michelle Amico Appointed as Chief Judge of 18th Judicial District

On Tuesday, July 3, 2018, the Colorado State Judicial Branch announced that District Court Judge Michelle Amico will be appointed as Chief Judge of the 18th Judicial District. She replaces Hon. Carlos A. Samour, Jr., as Chief Judge, following his appointment to the Colorado Court of Appeals, effective July 2, 2018.

Judge Amico was appointed to the 18th Judicial District Court in 2012. Prior to her appointment, she served as the Chief Deputy District Attorney in Denver, where she directed the Family Violence Unit, County Court Division; District Court, Juvenile Division; and Gang Unit and Intake Division; in addition to prosecuting cases. She substitute teaches criminal law and procedure at the University of Denver, and has spoken at several CBA-CLE seminars. She also has previously served on the board of directors for the Denver Center for Crime Victims, and is a past-president of the board. She received her undergraduate degree from the University of Arizona and her law degree from the University of Denver Sturm College of Law.

For more information about the appointment, click here.

Colorado Court of Appeals: Trial Court Committed Plain Error by Not Giving Unanimity Instruction in Forgery Case

The Colorado Court of Appeals issued its opinion in People v. Wester-Gravelle on Thursday, June 28, 2018.

Forgery—Jury Instructions—Unanimity Instruction—C.R.C.P. 12(b).

Defendant worked as a certified nursing assistant for Interim Healthcare (Interim), which provides in-home care to patients. In 2015, Interim assigned defendant to care for Moseley five days a week for two hours each day. Even though defendant had failed to show for her shift for three weeks, she had submitted weekly shift charts to receive payment for the preceding three weeks. The shift charts showed Moseley’s purported signatures acknowledging that defendant had arrived for her shifts. A jury convicted defendant of forgery, and the court sentenced her to two years’ probation.

On appeal, defendant contended that the trial court erred when it failed, on its own motion, to require the prosecution to elect a single forged shift chart as the basis for the conviction or to give a modified unanimity instruction. The People argued that defendant waived this issue by failing to object to the information under Crim. P. 12(b)(2) and (3), which requires a defendant to raise defenses or objections to an information and complaint within 21 days following arraignment. Colorado law is clear that Rule 12(b) does not require a defendant to object when the error stems from circumstances that are not apparent from the charging document. Here, on its face the charge does not evidence a defect, so Crim. P. 12(b)(2) does not apply. The unanimity issue arose only after the prosecution decided to introduce three different written instruments for the period charged. Therefore, defendant did not waive her claim.

The court of appeals determined that the prosecution’s evidence presented a reasonable likelihood that the jurors may have disagreed on which shift chart constituted the forgery charged. Thus, the court should either have (1) required the prosecution to elect an act on which it relied for a conviction, or (2) instructed the jury that to convict, it had to unanimously agree on the act committed or unanimously agree that defendant committed all of the acts. This error was substantial and obvious.

The conviction was reversed and the case was remanded for a new trial.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Double Jeopardy Implicated where Defendant Convicted of DARP at First Trial and ADARP at Second Trial

The Colorado Court of Appeals issued its opinion in People v. Wambolt on Thursday, June 28, 2018.

Aggravated Driving After Revocation Prohibited—Driving Under the Influence—Driving Under Restraint—Driving After Revocation Prohibited—Driving While Ability Impaired—Lesser Included Offense—Merger—Double Jeopardy—Motion to Suppress—Illegal Arrest—Miranda—Fifth Amendment.

Defendant was charged with aggravated driving after revocation prohibited (ADARP), driving under the influence (DUI), and driving under restraint (DUR). During a first trial, the jury was instructed on the elements of driving after revocation prohibited (DARP) and given a special interrogatory verdict form on the ADARP charge. The jury returned guilty verdicts on DARP and DUR, but hung on the DUI charge, and thus did not complete the ADARP special interrogatory. Defendant was retried in a two-phase trial. In the first phase, the jury returned a guilty verdict on driving while ability impaired (DWAI), a lesser included offense of DUI. In the second phase, the jury completed a special interrogatory finding that the prosecution had proved the ADARP charge. The trial court entered convictions for ADARP, DUR, and DWAI.

On appeal, defendant contended that he was unconstitutionally tried twice for the same offense when he was retried on the ADARP charge after the first jury had convicted him of DARP. Here, defendant was effectively tried for DARP twice and he was not properly tried for ADARP. Thus, under the circumstances of this case, defendant was unconstitutionally tried twice for the same offense. This error was obvious and substantial and significantly undermined the reliability of defendant’s ADARP conviction.

Defendant also argued that the trial court plainly erred in entering convictions for DUR and DARP because those convictions should have merged. DUR is a lesser included offense of DARP. Thus, the trial court erred in entering both convictions. However, because the relevant law in this area has undergone significant recent change, the error here was not plain because it was not obvious. The trial court did not plainly err in entering the DUR and DARP convictions.

Defendant further contended that the trial court erred in denying his motion to suppress statements he made after being detained. He argued that his statements resulted from an unlawful detention and were taken in violation of his Miranda rights. Here, although the officer found defendant compliant and “very easy to get along with,” he handcuffed him at gunpoint and placed him in the back of the patrol car. Defendant thereafter was removed from the patrol car, his handcuffs were removed, and he was read his Miranda rights and voluntarily waived them. Although defendant was unconstitutionally arrested, the statements were admissible because they were sufficiently attenuated from the unlawful arrest.

The judgment of conviction for DWAI and DUR was affirmed, the conviction for ADARP was vacated, and the case was remanded for the trial court to reinstate the DARP conviction and correct the mittimus.

Summary provided courtesy of Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 7/2/2018

On Monday, July 2, 2018, the Tenth Circuit Court of Appeals issued two published opinions and five unpublished opinions.

United States v. Espinoza-Romero

United States v. Akers

Continental Materials Corp. v. Valco, Inc.

Harris v. Progressive Direct Ins. Co.

United States v. Sanchez

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