April 25, 2019

Archives for August 29, 2018

Colorado Court of Appeals: Defendant Forfeited Any Claim to Error for Failing to Object to Judge’s Spouse’s Jury Service

The Colorado Court of Appeals issued its opinion in People v. Richardson on Thursday, August 23, 2018.

Criminal LawEvidenceAttempted AssaultJudge’s Spouse as JurorDemonstrative EvidenceExpert Witness.

Sheriff’s deputies attempted to serve Richardson with an arrest warrant, which led to a police standoff. When officers deployed tear gas into the basement crawl space where Richardson was hiding, Richardson fired a gun at the police. Methamphetamine was later found on Richardson’s person. Richardson was ultimately found guilty of possession of a controlled substance, violation of bail bond conditions, two counts of attempted second degree assault, and three counts of attempted third degree assault.

On appeal, Richardson argued that there was insufficient evidence to support his convictions for attempted second degree assault and attempted third degree assault. However, the evidence that Richardson fired a gun at SWAT members while they were all in the basement was sufficient for the jury to conclude that Richardson attempted second and third degree assault against the SWAT team members.

Richardson also argued that it was reversible error for the judge to preside over a case in which his spouse was in the venire and allowed to remain on the jury. There is no Colorado statute or case that makes it an error for a judge’s spouse to serve on a jury in which the judge presides. Although it would have been prudent for the judge to excuse his spouse or to recuse himself from the case, reversal here was not warranted because the evidence was sufficient to support the conviction, and the record did not demonstrate that the jury service of the judge’s wife resulted in a fundamentally unfair trial or caused serious doubt as to the reliability of the conviction.

Richardson next argued that the trial judge incorrectly denied his challenge under Batson v. Kentucky, 476 U.S. 79 (1986), as untimely. Here, the trial court was correct in holding that the Batson challenge was untimely.

Richardson also argued that three hand-drawn diagrams were not fair and accurate representations of the alleged crime scene and thus were not admissible as demonstrative evidence. Here, the challenged exhibits were a fair and accurate representation of the alleged crime scene. Further, the judge did not unreasonably limit defense counsel’s questions on the accuracy of the diagrams where counsel had ample opportunity to highlight these purported inaccuracies during voir dire and on cross-examination.

Richardson further argued that the trial court reversibly erred in allowing the crime scene investigator to testify as an expert without being qualified as such. Even if the error was obvious, it was not substantial, and the court did not plainly err in allowing the investigator to testify, absent a contemporaneous objection, as a lay witness.

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Penalty Enhancer Applies to Any Conduct in Furtherance of Offense that Occurs in Close Proximity to Victim

The Colorado Court of Appeals issued its opinion in People v. Trejo Lopez on Thursday, August 23, 2018.

Criminal Law—Theft—At-Risk-Adult—Challenge for Cause—Jury—Presumption of Innocence—Sentence Enhancer.

Defendant and the 70-year-old victim had been neighbors in a mobile home park. While visiting the victim in his trailer, defendant asked to use the bathroom, took a gun that was hanging on the bathroom wall and put it into his backpack, and then left the premises. The jury convicted defendant of theft from an at-risk adult under C.R.S. § 18-6.5-103(5).

On appeal, defendant contended that the trial court erred when it denied his challenge for cause to prospective juror H.S. Defense counsel challenged H.S. for cause because she seemed confused about the presumption of innocence and expressed anti-gun views. H.S.’s comments about the presumption of innocence revealed confusion rather than evinced a bias or inability to follow and apply the law, and she was articulate in explaining her views. When she did not respond to the court’s final questions, it was reasonable for the court to conclude that she would follow the law. Thus, the trial court did not abuse its discretion in denying defendant’s challenge for cause to H.S.

Defendant also contended that the prosecution failed to present sufficient evidence to prove beyond a reasonable doubt that he committed any element or portion of the theft in the presence of the victim. Defendant argued that the theft was completed when he took possession of the gun in the bathroom and outside the presence of the victim. C.R.S. § 18-6.5-103 enhances the penalties for theft when any element or portion of the offense is committed in the presence of an at-risk person, which is any person 70 years of age or older. “Portion of the offense” means conduct taken in furtherance of the crime that occurs in temporal proximity to an element of the offense and is physically close to the victim. Here, immediately after taking possession of the gun, defendant left the bathroom and walked a few feet away from the victim as he left the trailer, and defendant spoke with the victim before leaving with the gun. Therefore, defendant committed a portion of the theft in the victim’s presence.

Defendant also argued that the trial court abused its discretion when it rejected his tendered jury instruction on “presence” and declined to issue an alternate instruction defining the term. Providing the jury with defendant’s instruction, which required proof of additional elements not found in the charged crime, would have been an inaccurate instruction. The trial court did not abuse its discretion.

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 8/28/2018

On Tuesday, August 28, 2018, the Tenth Circuit Court of Appeals issued no published opinion and two unpublished opinions.

Boyd v. Martin

United States v. Anaya

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