December 17, 2018

Archives for August 21, 2018

Colorado Court of Appeals: Person Acting in Self-Defense Has No Duty to Retreat

The Colorado Court of Appeals issued its opinion in People v. Monroe on Thursday, August 8, 2018.

Criminal Law—Self-Defense—Duty to Retreat—Jury Instructions—Prosecutorial Misconduct.

Monroe boarded a city bus and sat down next to Faulkenberry. The two almost immediately began to argue. Eight to 10 minutes after the dispute began, Monroe stabbed Faulkenberry in the neck. At trial, Monroe did not testify, but her counsel asserted that Monroe had been acting in self-defense. During closing and rebuttal arguments, the prosecution made several references to Monroe’s ability to retreat from the situation. Defense counsel’s objections to these statements were overruled. The jury was formally instructed regarding the duty to retreat. Monroe was convicted of attempted first degree murder and first degree assault. The trial court adjudicated her a habitual criminal and sentenced her to concurrent prison terms of 96 years on the attempted murder count and 48 years on the assault count.

On appeal, Monroe argued that the trial court committed reversible error when it permitted the prosecution to argue that the jury should consider Monroe’s failure to retreat when deciding whether she had acted in self-defense. A person who reasonably perceives an imminent use of unlawful physical force by another may use force in defending himself or herself without first retreating and does not have to consider whether a reasonable person in the situation would choose to retreat rather than to resort to physical force in defense. Here, the prosecution raised the issue of the availability of retreat five times during its closing and rebuttal arguments, and the prosecution’s argument inappropriately imposed a duty to retreat. The trial court permitted the jury to believe that it could consider whether a reasonable person would have retreated, in direct contravention of its instruction that no such duty exists. Thus, the trial court abused its discretion. Further, although the court and the prosecutors themselves repeatedly stated that Monroe had no duty to retreat, there was a reasonable probability that the jury was misled and that the misleading arguments contributed to the verdict, so the error was not harmless.

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

Summary provided courtesy of Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 8/21/2018

On Tuesday, August 21, 2018, the Tenth Circuit Court of Appeals issued two published opinions and six unpublished opinions.

United States v. Hall

Sutton v. Pounds

Todd v. Hansen

United States v. Solis

United States v. McIntyre

United States v. Rinker

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

Colorado Court of Appeals: Defendant May Not Be Charged Under Aggregated Theft Statutes Because Charging Requirements Changed During Time Period At Issue

The Colorado Court of Appeals issued its opinion in People v. Halaseh on Thursday, August 8, 2018.

Criminal Law—Theft—Aggregated Theft—Evidence—Jury Instructions.

Defendant assisted his father in setting up a joint bank account for depositing his father’s Supplemental Security Income (SSI) checks from the Social Security Administration (SSA). A month later, defendant’s father left the United States to live in Jordan and never returned. Though the SSI application and award notice informed defendant’s father that he had to report to the SSA if he left the United States for more than 30 days, he never reported. From January 2008 to January 2011, the SSA deposited checks monthly into the joint account, and defendant withdrew the funds to pay for household expenses. When the SSA realized that defendant’s father had been outside the country for years, defendant confessed to SSA’s agents that it was wrong for him to take the funds. Defendant received a letter from the SSA informing him that $24,494 had been overpaid to his father. Defendant was convicted of a single count of theft of $20,000 or more from the SSA.

On appeal, defendant contended that the prosecution failed to present sufficient evidence to prove beyond a reasonable doubt that he committed theft. Here, the prosecution presented sufficient evidence for a reasonable juror to find beyond a reasonable doubt that defendant committed theft from the SSA, including evidence that defendant helped his father apply for SSA benefits, set up a joint account with his father, and admissions that he knew retaining the funds after his father left for Jordan was wrong.

Defendant also argued that the court failed to properly instruct the jury (1) on the definition of the word “another” in the theft statute, and (2) on its requirement to find that the “aggregate value” exceeded $20,000 within one of the prescribed units of prosecution. There is no statutory requirement to define “another,” and the SSA’s possessory or proprietary interest in the funds was not a disputed issue in this case. Although the trial court plainly erred when it instructed the jury that it could find defendant guilty of stealing $20,000 or more, the error was harmless because a proper jury instruction would not have changed the jury’s findings.

Defendant also contended that the prosecution failed to prove that he took $20,000 or more within any prescribed unit of prosecution permitted under the theft statutes in effect on the offense dates. The People conceded and the court of appeals concluded that the trial court erred by entering judgment for a class 3 felony theft on the jury’s verdict.

The judgment of conviction for one class 3 felony theft count was vacated and the case was remanded to the trial court to enter judgment of conviction for four class 4 felony theft counts and to resentence defendant accordingly.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Make-My-Day Law Requires that Trespass Be Committed “Knowingly”

The Colorado Court of Appeals issued its opinion in People v. Jones on Thursday, August 8, 2018.

Criminal Law—Make-My-Day Statute—Mens Rea—Self-Defense—Use of Physical Force—Jury Instructions.

Late one night Jones opened the unlocked door of an apartment located in a large, gated apartment complex. He turned on the hall light and walked into one of the bedrooms. The apartment was occupied by two brothers and their two cousins (the homeowners). Jones and the homeowners had never met each other. Jones and the occupants fought until Jones was finally subdued. At trial, Jones argued that he had entered the apartment by mistake, and when the homeowners used force against him, he justifiably defended himself using the knife he carried for protection. A jury convicted Jones of one count of second degree assault and one count of third degree assault.

On appeal, Jones contended that the trial court erred in instructing the jury that the make-my-day statute is triggered upon any unlawful entry into a dwelling, rather than upon a “knowingly” unlawful entry, and as a result the erroneous make-my-day instruction negated his otherwise valid claim of self-defense. When the make-my-day statute applies it operates as a bar to a trespasser’s claim of self-defense, so if it applied here, Jones would not be justified in using physical force against the homeowners. An instruction clarifying the meaning of “unlawful entry” is necessary where the evidence supports a theory that the defendant accidentally entered the dwelling or otherwise entered without the requisite mental state. Here, the court erred in failing to instruct the jury that the make-my-day statute’s unlawful entry element requires that the unlawful entry be made knowingly. Additionally, the instructional error was not harmless. The evidence supported Jones’s theory that he entered the apartment accidentally under the mistaken belief that he was entering the apartment of his cousin, who lived in the complex. Therefore, the language of the make-my-day instruction improperly abridged Jones’s claim of self-defense and created a reasonable probability that the jury could have been misled in reaching a verdict.

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

Summary provided courtesy of Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 8/20/2018

On Monday, August 20, 2018, the Tenth Circuit Court of Appeals issued one published opinion and one unpublished opinion.

Ericsson, Inc. v. Corefirst Bank & Trust

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

Tenth Circuit: Unpublished Opinions, 8/17/2018

On Friday, August 17, 2018, the Tenth Circuit Court of Appeals issued one published opinion and four unpublished opinions.

McFarland v. City & County of Denver

Macomber v. American Family Mutual Insurance Group

Salemi v. Colorado Public Employees’ Retirement Association

Velayo v. Talamayan

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