December 16, 2018

Colorado Court of Appeals: Jury Instruction that Effectively Told Jury Not to Consider Burden of Proof Erroneous, but Error Not Plain

The Colorado Court of Appeals issued its opinion in People v. Sabell on Thursday, June 14, 2018.

Jury Instructions—Involuntary Intoxication—Other Acts Evidence—Merger—Colorado Sex Offender Lifetime Supervision Act.

Sabell and his girlfriend, the victim, got into an argument one night. When the victim returned to the couple’s home that evening after running errands, Sabell accused her of cheating on him and physically assaulted her. The victim then began audio recording the altercation on her cell phone. Sabell then forced the victim to perform oral sex on him and later broke down her bedroom door after she had locked herself inside. A jury found Sabell guilty of sexual assault, unlawful sexual contact, third degree assault, and criminal mischief.

On appeal, Sabell contended that the trial court erroneously instructed the jury on his affirmative defense of involuntary intoxication and that this lessened the prosecution’s burden of proof. Before trial, the victim admitted that she had put Seroquel, a drug she had been prescribed, in Sabell’s wine after the sexual assault in an attempt to sedate him. Sabell testified that the victim had put the Seroquel in his drink before the recording began and that he had no memory of any of the recorded events. Although the involuntary intoxication instruction was erroneous because it effectively told the jury not to consider the People’s burden of proof until after it first decided whether Sabell’s intoxication was self-induced, it was not plain error.

Sabell also contended that the trial court gave an erroneous instruction limiting the jury’s consideration of other acts evidence. At trial, the victim, along with the victim’s friend and police officers, testified about four other incidents in which Sabell had been violent toward her or had forced her to have sex. The other acts evidence was relevant as to whether Sabell acted knowingly and voluntarily, and the court properly gave limiting instructions to the jury. There was no error.

Sabell’s contention that the Colorado Sex Offender Lifetime Supervision Act is unconstitutional on its face and as applied to him was without merit.

Sabell further argued, and the People conceded, that his unlawful sexual contact conviction should have merged with the sexual assault conviction at sentencing because they were based on the same conduct. The trial court plainly erred in entering both the sexual assault and unlawful sexual contact convictions.

Sabell also argued, and the People conceded, that the trial court erred in imposing a crime against a child surcharge of $500. The victim here was not a child, and the trial court plainly erred.

The unlawful sexual contact conviction and the crime against a child surcharge were vacated. The case was remanded for the trial court to correct the mittimus. The judgment and sentence were affirmed in all other respects.

Summary provided courtesy of Colorado Lawyer.

Tenth Circuit: District Court Did Not Err in Finding Assault Occurred Despite Poor Quality Evidence

The Tenth Circuit Court of Appeals issued its opinion in United States v. Henry on Friday, February 3, 2017. Panel rehearing was granted for the sole purpose of adding a footnote; that opinion is available here.

Tremale Henry finished a prison sentence for violating federal drug laws and was under supervised release for five years thereafter. During his five year supervised release, Mr. Henry was found by the district court to be responsible for two separate assaults with a dangerous weapon. The district court sentenced Mr. Henry to a 24-month prison term followed by six further years of supervised release. Mr. Henry argues that the district court impermissibly relied on hearsay when reaching its judgment.

The Tenth Circuit first addressed Mr. Henry’s first assault charge. In finding that Mr. Henry committed this assault, the district court relied on statements from a witness, Candace Ramsey. Ms. Ramsey testified that she saw Mr. Henry lunge at his victim with a small object, but that she could not see exactly what that object was. A probation officer then testified that Ms. Ramsey told him before the hearing that she saw Mr. Henry use a knife. The district court apparently credited this hearsay. Additionally, the district court relied on a surveillance video that showed Mr. Henry make rapid movements towards the victim. Although the video quality was poor and a knife could not clearly visible, the district court found that the reaction of the victim was consistent with a violent assault with a dangerous weapon. The district court found that all of these facts taken together established that Mr. Henry committed the first assault with a dangerous weapon.

The Tenth Circuit held that the district court did not err in its finding regarding the first assault. The Tenth Circuit stated that the usual rules of evidence do not apply in revocation hearings, and that the Supreme Court has allowed hearsay into supervised release proceedings. The Tenth Circuit went on to state that Fed. R. Crim. P. 32.1(b)(2)(C) grants a defendant in a revocation hearing the opportunity to question any adverse witness. Additionally, in United States v. Jones, the Tenth Circuit held that the application of Rule 32.1(b)(2)(C) requires a district court to conduct a balancing test to weigh “the defendant’s interests in confronting a witness against the government’s interest in foregoing the witness’s appearance.”

The Tenth Circuit held that neither Rule 32.1(b)(2)(C) nor Jones was applicable with regard to the first instance of the assault charge because the witness was available for cross-examination. Ms. Ramsey did appear at the hearing and Mr. Henry had the chance to question her about her hearsay statement. Additionally, Mr. Henry did not provide evidence to establish that his minimal due process rights were violated.

The Tenth Circuit next addressed the second assault charge, which consisted of the stabbing of the victim. The district court relied on out-of-court statements that the victim and the victim’s girlfriend made to a police detective. That detective then relayed the statements to Mr. Henry’s probation officer. Mr. Henry’s probation officer presented these statements at the revocation hearing, but neither the victim, his girlfriend, nor the detective was subject to cross-examination. Therefore, the Tenth Circuit held that Rule 32.1(b)(2)(C) and Jones did apply to this assault charge, and that the district court failed to conduct the balancing test Jones required.

The Tenth Circuit held that the district courts failure to apply the relevant tests was not a harmless error. The Tenth Circuit came to this conclusion because it determined that the district court considered both assault charges when it fashioned its sentence. Therefore, the error was not harmless and the Tenth Circuit remanded the case back to the district court for resentencing.

Colorado Court of Appeals: Promissory Note Void When Issued in Exchange for Leniency in Criminal Trial

The Colorado Court of Appeals issued its opinion in Rademacher v. Becker on Thursday, September 24, 2015.

Settlement Agreement—Promissory Note— Criminal Action—Void Against Public Policy.

Defendant and plaintiff were involved in a 10-year extramarital relationship. During a confrontation, defendant’s wife threw coffee on plaintiff and kicked over the chair she was sitting in. Wife was criminally charged with assault. After negotiating with plaintiff, defendant entered into a settlement wherein plaintiff agreed not to pursue any claims against wife or defendant and to ask the district attorney’s office to offer wife a deferred sentence. In exchange for these promises, defendant executed a $300,000 promissory note payable to plaintiff. At the same meeting where the settlement agreement was signed, plaintiff signed a letter to the district attorney indicating her desire that wife be offered a deferred sentence. Plaintiff later filed suit to enforce the note, and the jury found in favor of plaintiff. Defendant appealed.

An agreement in which money or other valuable consideration is paid in exchange for a crime victim’s efforts to obtain leniency in connection with a criminal charge is void as against Colorado public policy. Here, counsel for both plaintiff and defendant acknowledged that part of the consideration for the settlement payment was the settlement of the pending criminal matter. Because at least part of the consideration for execution of the settlement agreement and promissory note was given in an attempt to hinder or stifle the plenary prosecution against wife, the entire agreement and promissory note are void. The judgment was reversed and the case was remanded to the trial court to dismiss the action.

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

Tenth Circuit: Probable Cause Still Existed After Amending Misleading Arrest Warrant so Qualified Immunity Appropriate

The Tenth Circuit Court of Appeals issued its opinion in Puller v. Baca on Friday, March 20, 2015.

In the summer of 2009, Detective Baca was investigating a string of robberies by groups of black gang members on inebriated white male victims. After an incident on August 23, 2009, Detective Baca interviewed several people and eventually concluded that Aaron Joel Puller was involved in the August 23 attack. He prepared an arrest warrant for both aggravated robbery and a bias-motivated crime, but he omitted certain details from his interviews, including that certain of his sources could not identify Puller by name and that one of the sources denied that Puller would have assaulted the victims. Puller was arrested, but after watching the interview tapes, Puller’s attorney moved to dismiss the charges. The state court dismissed the charges without a hearing, concluding there was not probable cause to arrest Puller based on the omissions in the arrest warrant.

Puller then sued Baca in federal court under § 1983, alleging false arrest, malicious prosecution, and manufacture of inculpatory evidence. Baca moved for summary judgment based on qualified immunity, which the district court granted. After adding the omitted material to Baca’s affidavit and setting aside false information, the district court found it was reasonable for Baca to believe probable cause existed for Puller’s arrest and granted qualified immunity to Baca on all Puller’s claims. Puller timely appealed.

The Tenth Circuit began its analysis by removing false information from Baca’s affidavit and considering omitted material information. After amending the arrest affidavit accordingly, the Tenth Circuit found ample evidence of a race-motivated crime. Although no one contended Puller actually assaulted the victim, he was part of a group whose motive was intimidate a victim to place him in fear of imminent bodily harm. Puller asserted that the mere act of being part of a group is not sufficient to establish probable cause, but the Tenth Circuit found the interviews proved Puller was more than a stationary object in a law-abiding group—he, with the others, approached the victim based on his race with the intent to attack and rob the victim.

The Tenth Circuit affirmed the district court’s summary judgment and grant of qualified immunity to Detective Baca.

Colorado Supreme Court: Assault Sentence to be Consecutive with Any Other Sentence Being Served

The Colorado Supreme Court issued its opinion in People v. Diaz on Monday, April 27, 2015.

Sentencing—Statutory Interpretation—CRS § 18-3-203(1)(f).

Defendant was convicted of second-degree assault of a detention center employee in two separate cases. Trial for the second assault preceded trial for the first assault. Defendant finished serving his original sentence before trial in either case. The trial court held that CRS § 18-3-203(1)(f) requires that the sentence for the first assault be served consecutively to the sentence for the second assault. The court of appeals reversed on the ground that mandatory consecutive sentencing applies only to the sentence a defendant is serving at the time of the assault. The Supreme Court reversed the court of appeals’ judgment, holding that CRS § 18-3-203(1)(f) requires a consecutive sentence if, at the time of sentencing, the defendant is serving any other sentence.

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

Colorado Court of Appeals: Private Employee Working at Public Building Not Considered “Public Official or Employee” in Criminal Context

The Colorado Court of Appeals issued its opinion in People v. Moore on Thursday, June 6, 2013.

Impeding a Public Official or Employee—Private Employer—CRS § 18-9-110(2).

Defendant appealed the judgment of conviction entered on a jury verdict finding him guilty of impeding a public official or employee in a public building. The judgment was vacated.

Defendant, an attorney, injured a 61-year-old woman security guard when he forcibly passed through the security checkpoint at the Denver City and County Building. The victim was employed by a private security company.

The People argued that the trial court’s denial of defendant’s motion to dismiss was rendered moot by the subsequent trial and was no longer reviewable. However, the trial court construed the statute to permit defendant’s prosecution under the statute as a matter of law. The jury was bound by this determination. Therefore, the jury’s verdict did not render moot the denial of defendant’s motion to dismiss or preclude him from challenging his conviction on appeal.

Defendant contended that his judgment of conviction should be vacated because the victim was not a “public employee,” which is a prerequisite to establishing criminal liability under the statute. Because the victim was not a public employee, but was employed by a private security company, defendant’s conviction under CRS § 18-9-110(2) was vacated.

Summary and full case available here.

Colorado Court of Appeals: Defendant Violated Terms of Bonds When He Spat in the Face of a Police Officer

The Colorado Court of Appeals issued its opinion in People v. Luna, Jr. on Thursday, May 9, 2013.

Assault—Evidence—Violation of Bond—Jury Questions.

Defendant Arturo Luna, Jr. appealed the trial court’s judgment of conviction entered on jury verdicts finding him guilty of second-degree assault (in jail/bodily fluids), two counts of violating his bond conditions, resisting arrest, and disorderly conduct. The judgment was affirmed.

When questioned by police regarding an alleged assault, Luna acted aggressively, spat in the direction of the officers, and then spat in the face of one of the officers. Luna was found guilty of all charged counts.

On appeal, Luna asserted that insufficient evidence existed to support his convictions of violating the terms of his bonds, because the prosecution did not present evidence to prove that his bonds were in effect at the time of the events giving rise to his conviction. Luna posted bonds in relation to two charges, one on August 28, 2009 and another February 15, 2010. The conditions of both bonds prohibited any further violations of the law. The prosecution was required to prove beyond a reasonable doubt that the terms of the bonds were in effect at the time of the alleged illegal conduct. The prosecution presented circumstantial evidence, which when taken in the light most favorable to the prosecution, established that the bonds were in effect at the time of the charged conduct. Accordingly, the jury could reasonably infer that the bonds continued to be in effect at the time of the charged conduct.

Luna also argued that the trial court erred by issuing a misleading answer to jury questions, which asked whether the bonds were in effect on the date of the offense. In response to the jury’s question as to whether the bonds were still in effect, the trial court correctly declined to address the merits of the questions, and instead referred the jury back to the elements of each charge. Accordingly, the trial court did not commit plain error in responding to the jury’s questions.

Luna further argued that there was insufficient evidence to support his conviction of second-degree assault, because the prosecution did not prove that he was “lawfully confined in a detention facility” at the time of the assault. CRS § 18-3-203(1)(f.5) applies to an individual lawfully confined in a vehicle who is lawfully held in custody and whose victim is a law enforcement officer. Therefore, the prosecution presented sufficient evidence to support Luna’s conviction for second-degree assault.

Summary and full case available here.