May 25, 2019

Colorado Supreme Court: Admission of “Overkill” Theory Without Specific Findings Was Error

The Colorado Supreme Court issued its opinion in Ruibal v. People on Monday, December 3, 2018. 

Ruibal petitioned for review of the court of appeals’ judgment affirming hisconviction for second degree murder. Over defense objection and without taking evidence or making any findings as to reliability, the trial court admitted expert testimony to the effect that the victim’s injuries in this case demonstrated “overkill,” a formal term describing multiple injuries focused on one area of the victim’s body, which includes blows about the head and face that are numerous and extensive, indicating that the assailant likely had either a real or perceived emotional attachment to the victim. Relying on case law from several other jurisdictions, a treatise dealing with related kinds of injuries, and the witness’s own experience with autopsies involving similar injuries, the court of appeals concluded that the expert opinion was sufficiently reliable and that the trial court had implicitly found as much by granting the prosecution’s proffer.
The supreme court holds that because the trial court made no specific finding that the theory of “overkill” espoused by the witness was reliable, nor was the reliability of that theory either supported by evidence in the record or already accepted in this jurisdiction, its admission amounted to an abuse of discretion. Because there was, however, overwhelming evidence of the defendant’s guilt quite apart from the expert testimony, the error was necessarily harmless. Accordingly, the judgment of the court of appeals is affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Trial Court Did Not Abuse Discretion by Declining to Reveal Juror’s Contact Information Absent Evidence of Misconduct

The Colorado Court of Appeals issued its opinion in People v. Bohl on Thursday, November 1, 2018.

Criminal Procedure—Jury Contact Information—Jury Misconduct.

A jury convicted Bohl of one count of first degree murder for killing his girlfriend. After the verdict, a deputy district attorney who was not involved in prosecuting the case sent a text message to Mrs. Hillesheim, the wife of the jury foreman. Mrs. Hillesheim and the deputy district attorney knew each other, and the deputy district attorney asked her if Mr. Hillesheim would provide feedback on the trial and the prosecutors’ performance during the case. Mrs. Hillesheim informed the deputy district attorney that Mr. Hillesheim had researched various scientific items that were presented during the trial. Following this communication, the People filed a Notice of Juror Contact. In response, Bohl’s counsel filed a motion for a new trial, and alternatively, Bohl requested that the court hold a hearing on the incident and release the jurors’ contact information. Following a hearing at which the Hillesheims testified, the trial court determined that no jury misconduct had occurred and any extraneous information that Mr. Hillesheim obtained was not relevant to a key issue at trial. Based on the evidence presented, the trial court did not address Bohl’s request for juror information, but denied Bohl’s motion, and later sentenced him to life in prison without the possibility of parole.

On appeal, defendant argued that the trial court abused its discretion in denying his request for juror contact information because it deprived him of the opportunity to gather evidence to support his juror misconduct claim. Here, the trial court’s factual and credibility determinations were supported by the record, and given the speculative evidence of juror misconduct, the trial court did not abuse its discretion in denying Bohl access to juror contact information.

The order was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: No Error in Trial Court’s Decision Not to Allow Witness to Testify Via Skype

The Colorado Supreme Court issued its opinion in People v. Gutierrez on Monday, September 17, 2018.

Motions to Continue—Abuse of Discretion.

In this interlocutory appeal, the supreme court held that the trial court did not abuse its discretion by denying the People’s request to have their witness testify remotely via Skype. Trial courts have broad discretion to control the manner in which witnesses offer testimony, and a decision to prohibit a witness from testifying is reviewed for an abuse of discretion. Because the trial court worked extensively to accommodate the witness, the People were on notice about the importance of the witness appearing in-person, and because denying the People’s request to allow the witness to testify remotely is not outcome determinative, the court concluded that the trial court did not abuse its discretion.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Trial Court Erred in Granting New Trial for Reasons Not Enumerated in C.R.C.P. 59(d)

The Colorado Supreme Court issued its opinion in In re Rains on Monday, June 25, 2018.

C.R.C.P. 59(d)—Proper Grounds for New Trial.

In this case, the supreme court considered whether the trial court abused its discretion when it granted plaintiffs’ motion for a new trial after a jury found that defendants, two pilots, were not negligent during a near collision that resulted in one plane crashing and killing all five passengers on board. The court concluded that the trial court’s stated reasons did not meet the grounds enumerated in C.R.C.P. 59(d) and that a trial court may not grant a new trial for reasons other than those enumerated in C.R.C.P. 59(d). Thus, the trial court abused its discretion in granting a new trial. The court made its rule to show cause absolute and remanded the case for further proceedings.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Career Service Board’s Interpretation of Sheriff Department Rule Reasonable

The Colorado Court of Appeals issued its opinion in Khelik v. City & County of Denver on Thursday, April 7, 2016.

C.R.C.P. 106—Reasonable Interpretation of Rules—City and County of Denver Career Service Board.

Plaintiff Khelik appealed from the district court’s judgment affirming an order of the City and County of Denver’s Career Service Board (Board) relating to disciplinary proceedings against him by the Denver Sheriff Department (DSD). The sole issue on appeal was whether the Board abused its discretion by misinterpreting a DSD disciplinary rule and concluding that a charge of conduct unbecoming does not require the DSD to prove actual harm to the City or the DSD. Khelik was a sergeant in the DSD. He was given a disciplinary notice suspending him without pay for inappropriate interactions with a female officer under his command and retaliating against her for stating her intention to file a sexual harassment complaint. Khelik appealed his suspension to a hearing officer in the Career Service Authority. The hearing officer concluded that because the DSD had not made a showing of actual harm, Khelik had not violated DSD Rule 300.11.16 (the retaliation claim was also denied and that was not appealed). The DSD petitioned for review with the Board, and the Board vacated the hearing officer’s determination, concluding there was no requirement of a showing of actual harm to the City or the DSD to find a violation of the rule concerning conduct unbecoming. The district court affirmed. Khelik appealed under C.R.C.P. 106.

The Colorado Court of Appeals concluded that the Board did not abuse its discretion. In interpreting DSD Rule 300.11.16, the Board’s reasoning was consistent with principles of statutory interpretation and reflects the plain language of the rule, the drafters’ intent, and the policy considerations behind the rule.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Tenth Circuit: District Court Abused Discretion by Rejecting Plea Bargain Based on Appeal Waiver

The Tenth Circuit Court of Appeals issued its opinion in United States v. Vanderwerff on Wednesday, June 10, 2015.

Timothy Vanderwerff was indicted in the District of Colorado on three child pornography-related counts: Count 1 charged him with receipt of child pornography and Counts 2 and 3 charged him with possession. Vanderwerff entered into a plea agreement with the government wherein he would plead guilty to Count 2, which carried a statutory sentencing range of zero to ten years, in exchange for dismissal of Counts 1 and 3. The plea agreement contained an appeal waiver. The district court rejected the plea agreement, citing a “tectonic shift” in jurisprudence following the Supreme Court’s decision in Lafler v. Cooper which suggested the court should be a participant in the plea bargaining process. The district court also relied on United States v. Booker to support its finding that sentencing requires a court to consider context and apply criteria instead of performing mechanical judgment. The district court suggested that some of the judges on the Tenth Circuit were not “paying attention to their obligations” in reviewing lower court decisions. The district court rejected the proposed plea agreement.

Vanderwerff sought review of the district court’s rejection of the first plea agreement, but the Tenth Circuit determined it lacked jurisdiction because the issues were premature. The parties then negotiated a new plea agreement, wherein Vanderwerff would plead guilty to Count 1 in exchange for dismissal of Counts 2 and 3. Notably, the new plea agreement did not contain an appeal waiver. The statutory sentencing range for Count 1 was five to twenty years’ imprisonment. The district court sentenced Vanderwerff to 108 months’ imprisonment, and Vanderwerff timely appealed.

On appeal, the government agreed that the district court abused its discretion in rejecting the first plea agreement. The Tenth Circuit appointed pro bono amicus counsel to independently assess the legal propriety of the district court’s sentence decision. The amicus also agreed that the district court abused its discretion. The Tenth Circuit similarly concluded the district court abused its discretion in rejecting the plea agreement based on the appeal waiver, since its decision was premised on legally erroneous and irrelevant considerations. The Tenth Circuit opined that the district court’s reading of Lafler as a basis for rejecting the plea agreement evinced a serious misunderstanding of the case. The Tenth Circuit did not read Lafler to introduce a new role for the judiciary in the plea bargaining process.

The Tenth Circuit also disagreed with the district court’s interpretation of Booker, finding nothing in the case to suggest that district courts were obligated to exercise a wider scope of discretion in evaluating plea agreements. The Tenth Circuit noted the core holding of Booker was that the Guidelines are advisory, and found the district court seriously misconstrued Booker‘s mandate, constituting an abuse of discretion. In fact, the Tenth Circuit found nothing in Booker that spoke to appellate waivers at all, much less anything that allowed the district court to restrict a defendant’s ability to knowingly and voluntarily waive his or her appellate rights.

Finally, the Tenth Circuit disapproved of the district court’s use of the § 3553(a) factors as a basis for its rejection of the appeal waiver. The Tenth Circuit found the court committed serious error by applying the sentencing factors to the entry of guilt phase. The Tenth Circuit also did not appreciate the suggestion that it was not paying attention to its obligations to review the decisions of district court judges, and noted that it had its responsibilities firmly in hand. The Tenth Circuit found that plea bargaining was strongly favored and the appellate waiver was an important bargaining tool for a defendant.

The district court’s judgment was reversed and remanded. Judge Hartz separately concurred.

Colorado Court of Appeals: Admission of “Overkill” Testimony Acceptable Despite Lack of Findings Regarding Scientific Significance

The Colorado Court of Appeals issued its opinion in People v. Ruibal on Thursday, May 7, 2015.

Domestic Violence—Limiting Instruction—Expert Testimony—CRE 404(b)—CRS § 18-6-801.5—Hearsay—Photographs.

Defendant Ruibal appealed his judgment of conviction and sentence to forty years imprisonment entered on a jury verdict finding him guilty of second-degree murder. The victim, D.P., was fatally beaten during a December weekend in 2007. She died in the apartment that she and Ruibal shared. The prosecution theorized that, in an act of domestic violence, Ruibal assaulted D.P. in their apartment on a Saturday evening, and that D.P. died on Sunday or Monday from injuries sustained in the beating.

On appeal, Ruibal contended that the trial court erred when it did not give a limiting instruction during the testimony of the prosecution’s domestic violence expert. CRE 404(b) and CRS § 18-6-801.5 permit a trial court to admit evidence of other acts of domestic violence between a defendant and a victim if offered to show common plan, scheme, design, identity, modus operandi, motive, guilty knowledge, or some other purpose. In such cases, the trial court must instruct the jury as to the limited purpose for which the other acts evidence is admissible. Here, the expert did not specifically reference any prior acts of domestic violence between Ruibal and D.P. She merely explained the general dynamics that exist in abusive relationships. Based on these circumstances, the trial court did not err when it declined to give a limiting instruction during the testimony of the prosecution’s domestic violence expert.

Ruibal also contended that the trial court abused its discretion when it permitted a pathologist to present expert testimony regarding victim “overkill.” Although the trial court should have entered specific findings on the reliability of the underlying scientific theories, the court overruled Ruibal’s objection to the overkill evidence, implicitly determining that the pathologist’s expert testimony was based on a reliable scientific principle. Further, the trial court did not err when it permitted the expert to testify that his opinion was based on his experience.

Ruibal further contended that the trial court abused its discretion when it admitted five gruesome color photographs that showed the inside of D.P.’s head. The photographs were relevant to show the extent of injuries and the mental state of intent, which outweighed any prejudicial impact. Therefore, the trial court did not err in admitting these photographs. The judgment and sentence were affirmed.

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

Tenth Circuit: District Court Abused Discretion by Disregarding 10th Circuit’s Mandate

The Tenth Circuit Court of Appeals issued its opinion in Zinna v. Congrove on Thursday, June 5, 2014.

This is an appeal of a prior remand by the Tenth Circuit in Zinna v. Congrove, 680 F.3d 1236 (10th Cir. 2012), in which the Tenth Circuit determined the district court had abused its discretion in only awarding Zinna $8,000 in attorney fees. The Tenth Circuit remanded for issuance of a reasonable attorney fee award. On remand, the district court disregarded the mandate of the Tenth Circuit, thereby abusing its discretion.

Congrove asserted that Zinna failed to timely appeal the attorney fee award, because he had not appealed a November 2012 judgment awarding attorney fees for the trial court action until after a March 2013 ruling for “legal services of trial and appellate counsel.” The Tenth Circuit disagreed, noting that in the particular facts of this case, the trial court attorney fee award was not final until the March 2013 order. Because Zinna timely appealed the March 2013 order, the trial court attorney fee issue was timely appealed. The Tenth Circuit did not examine Zinna’s request for appellate attorney fees, deciding that the issue was inadequately briefed. However, the Tenth Circuit examined the award of trial court fees and determined that the district court abused its discretion in awarding only a minimal amount of attorney fees.

The district court judgment was affirmed as to appellate attorney fees due to inadequate briefing. The judgment was reversed and remanded as to the trial court attorney fees. Zinna’s request to have the matter reassigned to a different district court judge was granted.