March 21, 2019

Colorado Supreme Court: Eyewitness’ In-Court Identification Allowed Despite Previous Failure to Identify Defendant in Photo Array

The Colorado Supreme Court issued its opinion in Garner v. People on Monday, March 18, 2019.

Eyewitnesses—Identification Evidence and Procedures—In-Court Identification.

The supreme court reviewed whether due process or the Colorado Rules of Evidence required the exclusion of victim-witnesses’ in-court identifications of defendant, where each witness had failed to identify defendant in a photographic array before trial and almost three years had elapsed between the crime and the confrontations. The court held that where an in-court identification is not preceded by an impermissibly suggestive pretrial identification procedure arranged by law enforcement, and where nothing beyond the inherent suggestiveness of the ordinary courtroom setting made the in-court identification itself constitutionally suspect, due process does not require the trial court to prescreen the identification for reliability. Here, because defendant alleged no impropriety regarding the pretrial photographic arrays, and the record revealed nothing unusually suggestive about the circumstances of the witnesses’ in-court identifications, the in-court identifications did not violate due process. The court further held that defendant’s evidentiary arguments were unpreserved, and the trial court’s admission of the identifications was not plain error under CRE 403, 602, or 701. Accordingly, the court affirmed the court of appeals’ judgment.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Because Two Charges Would Have Been Tried Together But For Defendant’s Guilty Pleas, They Cannot Be Considered Separate Under Habitual Criminal Statute

The Colorado Court of Appeals issued its opinion in People v. Williams on Thursday, March 7, 2019.

Criminal Law—Photo Lineup—Sixth Amendment—Motion to Continue—Sentencing—Habitual Criminal.

Defendant robbed the victim, an Uber driver, at knifepoint in a Denver alleyway. After the jury returned its verdict, the trial court held a hearing to determine whether defendant was a habitual criminal. Based on defendant’s prior convictions for first degree assault (heat of passion) and two prior convictions for distribution of a Schedule II controlled substance, the trial court adjudicated him a habitual criminal and sentenced him to 64 years in prison.

On appeal, defendant argued that the pretrial photo lineup, from which the victim identified him, was impermissibly suggestive. He contended that he was older than the other men in the photo array and there were impermissible differences in the clothing and tattoos depicted. Here, defendant’s photo matched the victim’s description and the filler photos depicted men who generally fit the witness’s description. The number of photos in the array (six) and the details of the photos did not render the lineup impermissibly suggestive.

Defendant also contended that the trial court abused its discretion and violated his Sixth Amendment right to his counsel of choice by denying his motion for a continuance. The trial court considered the appropriate factors in balancing defendant’s right to have counsel of his choosing against the efficient and effective administration of justice. The trial court’s findings were supported by the record, and the court did not abuse its discretion in denying defendant’s motion for a continuance.
Defendant next contended that the trial court abused its discretion by denying his motion for a continuance to allow the People to complete fingerprint testing and that completed testing would have allowed for the production of exculpatory evidence. Here, the fingerprint results were inconclusive and the prosecution did not have possession or control of any exculpatory fingerprint comparison results. Considering the totality of the circumstances, there was no error in the trial court’s ruling on the motion.

Defendant further contended that the trial court erroneously sentenced him under the habitual criminal sentencing statute because two of his three prior felony convictions were permissively joined for trial. Defendant argued that because the two cases charging him with distribution of a Schedule II controlled substance were joined for trial under Crim. P. 13, they would have been tried together had he not entered guilty pleas, so his previous convictions for distribution should be treated as one conviction for habitual criminal purposes. Here, the offenses were joined for trial and would not have been tried separately. The prosecution failed to meet its burden to prove beyond a reasonable doubt that defendant’s predicate felonies were separately brought and would have been separately tried had defendant not entered guilty pleas. The guilty pleas resulted in one conviction for purposes of the habitual criminal sentencing statute and the trial court erred in sentencing defendant under that statute.

The judgment of conviction was affirmed. The case was remanded for the trial court to impose a new sentence and to correct the mittimus.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Defendant’s Request to Look for Lawyer Did Not Implicate Sixth Amendment

The Colorado Supreme Court issued its opinion in People v. Travis on Monday, March 4, 2019.

Sixth Amendment—Counsel of Choice—Motion to Continue—Abuse of Discretion.

The People challenged the decision of a division of the court of appeals that concluded that Travis’s request to “look for and pay for a lawyer” was an invocation of her Sixth Amendment right to be represented by counsel of her choice. The supreme court held that Travis’s request did not implicate her Sixth Amendment right to counsel of her choice and that the trial court’s decision to deny Travis’s request to continue her trial to “look for and pay for a lawyer” was not an abuse of discretion. Accordingly, the court reversed the division’s decision and remanded for proceedings consistent with this opinion.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Duplicitous Charges Violate Equal Protection Clause Where Underlying Conduct Identical

The Colorado Court of Appeals issued its opinion in People v. Slaughter on Thursday, February 21, 2019.

Equal Protection—Felony Strangulation—Charging Options.

The prosecution charged defendant with second degree assault by strangulation under C.R.S. § 18-3-203(1)(i) for allegedly strangling the victim with his hands. The People later moved to add a new count under the crime of violence sentencing statute, C.R.S. § 18-1.3-406(2)(a)(I)(A), based on their assertion that defendant used his hands as a deadly weapon. The trial court dismissed the charged sentence enhancer as violating defendant’s equal protection rights. The People filed this interlocutory appeal.

Under the Colorado Constitution, if criminal statutes provide different penalties for identical conduct, a person convicted under the statute with the harsher penalty is denied equal protection unless there are reasonable differences between the proscribed behaviors. A prosecutor charging an accused with felony strangulation has multiple charging options under the Colorado criminal statutes. The crime can be charged under the first degree assault statute, C.R.S. § 18-3-202(1)(g), which requires proof that the accused caused serious bodily injury to the victim.If the prosecution does not want to prove serious bodily injury, it can charge the accused under the second degree assault statute, C.R.S. § 18-3-203. This statute has two charging options, (1)(b) or (1)(i), neither of which would require proof of serious bodily injury. Under (1)(b) proof of use of a deadly weapon is required. Unless charged with a crime of violence sentence enhancer, a strangulation charge under subsection (1)(i) would not require proof of use of a deadly weapon. The penalty available for strangulation charged under (1)(i) if charged as a crime of violence under C.R.S. § 18-1.3-406(2)(a)(I)(A) is substantially more severe than if an accused is charged under (1)(b), even though both would require proof of use of a deadly weapon.

Though prosecutors have discretion in charging decisions, the prosecution is not permitted to charge an accused in a way that would result in an equal protection violation if the defendant were found guilty and sentenced to a harsher penalty than another accused might receive for identical assault conduct.Here, the combination of the prosecution’s charge against defendant under C.R.S. § 18-3-203(1)(i) and the crime of violence sentence enhancer under C.R.S. § 18-1.3-406(2)(a)(I)(A) renders these statutory provisions unconstitutional as applied to defendant. Thus, the prosecution’s motion to charge defendant with a crime of violence sentence enhancer should have been denied, and the trial court did not err.

The order was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Attempted Extreme Indifference Murder Constitutes “Grave and Serious” Crime for Proportionality Purposes

The Colorado Court of Appeals issued its opinion in People v. Terry on Thursday, January 24, 2019.

Constitutional Law—Cruel and Unusual Punishment—Criminal Procedure—Postconviction Remedies.

Terry was charged in two cases with multiple offenses arising from two separate incidents. In the first incident, Terry rammed his truck into a patrol car when officers attempted to stop him for breaking into parked vehicles. In the second incident, officers responded to a report of an intoxicated man (later identified as Terry) driving his truck around a Walmart parking lot. Terry got into his truck, slammed an officer’s hand in the door, and ran over the officer’s foot as he sped away. After a chase, Terry sped toward officers and rammed the patrol cars. A jury found him guilty of attempted extreme indifference murder, second degree assault on a peace officer, two counts of first-degree criminal trespass, third degree assault on a peace officer, two counts of criminal mischief, two counts of vehicular eluding, and four habitual criminal counts. After the court adjudicated Terry a habitual criminal in a separate trial, it sentenced him to an aggregate total of 204 years in the custody of the Department of Corrections.

Terry filed pro se for postconviction relief with a request for counsel. The district court denied three of his four claims and appointed counsel to address only the one claim on which it had not already ruled. It simultaneously ordered that a copy of the motion be served on the Office of the Public Defender (OPD) and the prosecution, and instructed the prosecutor to respond to the pro se motion and any supplemental motion within 30 days of its filing. The OPD determined it had a conflict of interest, so alternate defense counsel was appointed who filed a supplemental motion raising six claims of ineffective assistance of counsel. The district court concluded that five of the six claims did not entitle Terry to relief and ordered the prosecution to respond to the remaining claim, which Terry withdrew. The district court dismissed his five claims of ineffective assistance of counsel, without first ordering the prosecution to respond.

On appeal, Terry contended that the district court erred in denying his petition for postconviction relief because Crim. P. 35(c)(3)(V) requires, in the circumstances presented here, that the prosecution respond and the defendant be allowed an opportunity to reply to that response. Crim. P. 35(c)(3)(V) does not prevent the court from ordering the prosecution to respond to only that portion of a postconviction motion that the court considers to have arguable merit. Here, the district court’s procedure fell within the bounds of prescribed procedure; it ruled on the pro se and supplemental petitions based on the motions, record, and facts and ordered the prosecution to respond to the one claim it deemed potentially meritorious. The trial court did not err, but even if it did, any error was harmless because Terry did not show prejudice.

Terry next contended that the district court erred in denying his postconviction petition because Terry sufficiently pleaded ineffective assistance of counsel. Here, (1) trial counsel’s decisions not to pursue a not guilty by reason of insanity plea or other mental health defense were objectively reasonable; (2) trial counsel’s failure to pursue a voluntary intoxication defense was strategically sound; (3) it was not error for defense counsel to decide not to pursue lesser nonincluded offenses based on trial strategy; (4) defense counsel did not err in deciding not to file a suppression motion; and (5) defense counsel did not err in failing to request a proportionality review, because attempted extreme indifference murder constitutes a per se “grave and serious” crime for purposes of an abbreviated proportionality review. Therefore, the trial court did not err in denying the postconviction motion.

The order was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Partial Closure of Courtroom Without Specific Findings was Structural Error

The Colorado Court of Appeals issued its opinion in People v. Irving on Thursday, January 10, 2019.

Constitutional Law—Sixth Amendment—Public Trial—Courtroom Closure.

Defendant was charged with first degree murder and conspiracy to commit murder in connection with a gang-related dispute. During his trial, the prosecutor requested that the court exclude defendant’s mother from the courtroom during his former girlfriend’s testimony because, according to the prosecution, defendant’s mother had urged the girlfriend not to cooperate with the police about four years earlier. The trial court granted the prosecution’s request and partially closed the courtroom during the testimony of defendant’s former girlfriend. Defendant was convicted of second degree murder and conspiracy to commit murder.

On appeal, defendant contended that the courtroom closure violated his constitutional right to a public trial. The proponent of a courtroom closure must demonstrate not only an overriding interest but also a substantial probability that the identified interest will be prejudiced by an open courtroom. The need to protect witnesses from intimidation constitutes an overriding interest. Here, the alleged intimidation was based on a single, ambiguous, four-year-old statement that the girlfriend later disregarded. The trial court may have identified an overriding interest, but it failed to make any finding that the interest in preventing witness intimidation would be prejudiced unless defendant’s mother was excluded from the courtroom during the girlfriend’s testimony. Therefore, the court erred in partially closing the courtroom and violated defendant’s constitutional right to a public trial. Further, the error was structural.

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

Summary provided courtesy ofColorado Lawyer.

Colorado Supreme Court: Restitution Not Available for Losses for Which the Defendant Was Not Convicted

The Colorado Supreme Court issued its opinion in Cowan v. People on Monday, December 10, 2018.

Sentencing—Restitution—Compensable Losses.
The supreme court held that Colorado’s restitution statutes do not allow trial courts to order restitution for pecuniary losses caused by conduct that formed the basis of a charge of which the defendant has been acquitted. Even where the defendant has been convicted of a separate charge, this state’s restitution statutes do not permit a trial court to impose restitution for losses suffered as a result of the acquitted conduct. The prosecution’s contrary construction would both violate well-settled rules of statutory interpretation and run afoul of the Fourteenth Amendment’s guarantee of procedural due process. Because the court of appeals affirmed the order requiring defendant to pay restitution for losses caused by conduct supporting an acquitted charge, the supreme court reversed that court’s decision. The matter was remanded to the court of appeals for further proceedings consistent with this opinion.


Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Anonymous Juror’s Response to Post-Verdict Attorney Evaluation Inadmissible Under CRE 606(b)

The Colorado Court of Appeals issued its opinion in People v. Burke on Thursday, November 15, 2018.

Post-Verdict Juror Attorney EvaluationMotion for New TrialCRE 606(b).

Burke was convicted of burglary. After trial, the jury commissioner sent an attorney performance evaluation form to the jurors. Responses are anonymous. On one of the responses directed to Burke’s counsel, an anonymous juror wrote, “Hard to believe a client when they choose to remain silient [sic].”  Burke moved for a new trial, arguing that at least one juror had disregarded the court’s instructions and based her decision on an impermissible basis. The trial court found the statement was evidence there had been jury misconduct and concluded that CRE 606(b) did not render the statement inadmissible. Without taking additional evidence, the trial court granted the motion for a new trial.

On appeal, the People argued that CRE 606(b) precluded the trial court from considering the anonymous juror’s statement as a basis to grant a new trial. The rule bars admission of any juror testimony or statement to impeach a verdict where the testimony or statement concerns what occurred during jury deliberations, with three exceptions. The anonymous juror’s statement was inadmissible under CRE 606(b) and the exceptions were not applicable. The trial court erred in granting the motion for a new trial.

Burke argued that the trial court’s order should be affirmed because the juror intentionally concealed bias during voir dire. But because the statement was inadmissible, it cannot be used to impeach a verdict on any ground, including a claim that a juror concealed bias during voir dire.

Finally, Burke argued that the court of appeals should recognize a constitutional exception to CRE 606(b) where the juror’s statement reflects a bias against the defendant for the exercise of a fundamental constitutional right. The U.S. Supreme Court’s recent recognition of a limited constitutional exception to Rule 606(b) in a case of racial animus does not support an exception under the circumstances of this case.

The order for a new trial was reversed and the case was remanded for reinstatement of the jury’s verdict.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Then-Applicable Competency Statute for Juveniles Not Unconstitutional Facially or As Applied

The Colorado Court of Appeals issued its opinion in People in Interest of A.C.E.-D. on Thursday, November 15, 2018.

Juvenile Delinquency—Competency—Evidence.

Following a complaint of shoplifting, police officers contacted A.C.E-D. He confessed, led them to the merchandise, and was charged with misdemeanor theft. In a separate case, A.C.E-D. was charged with misdemeanor harassment based on Facebook messages sent to his ex-girlfriend. In both cases, A.C.E-D. pleaded guilty. Before sentencing, he moved to determine competency and later moved to withdraw his guilty pleas. The court ordered a competency evaluation, found A.C.E-D. competent, allowed A.C.E-D. to withdraw his guilty pleas, and conducted a bench trial. The court found A.C.E-D. guilty of the charges and adjudicated him a juvenile delinquent.

On appeal, A.C.E-D. argued that the previous iteration of the competency statute for juveniles, C.R.S. § 19-2-1301(2), was facially unconstitutional or unconstitutional as applied because it incorporated the definition of “incompetent to proceed” for adults in criminal proceedings set out in C.R.S. § 16-8.5-101(11), which did not allow the court to consider A.C.E-D.’s age and maturity. A juvenile adjudication need only be fundamentally fair, and using the same competency test for both juveniles and adults is fundamentally fair. Because A.C.E-D. failed to show that under no set of circumstances would the statute be constitutional, the trial court’s finding that the statute was not facially invalid was proper.

A.C.E-D. also argued that that statute was unconstitutional as applied to him because the trial court’s application precluded him from being declared incompetent since he didn’t prove he had a mental or developmental disability. Sufficient evidence in the record supports the trial court’s finding of competency under Dusky v. United States, 362 U.S. 402, 402 (1960), and thus A.C.E-D. did not prove beyond a reasonable doubt that the trial court unconstitutionally applied the statute to him.

A.C.E-D. also argued that the trial court erred in admitting Facebook messages because the prosecution did not provide sufficient evidence to show that he wrote and sent the Facebook messages. The prosecution met the heightened standard for Facebook messages, and A.C.E-D’s contrary evidence goes to the weight of the messages. The trial court did not abuse its discretion in admitting the messages.

The adjudications were affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Statutes Limiting Sale, Transfer, and Possession of Large-Capacity Magazines Facially Constitutional

The Colorado Court of Appeals issued its opinion in Rocky Mountain Gun Owners v. Hickenlooper on Thursday, October 18, 2018.

Constitutional Law—Large-Capacity Magazines—Colorado Constitution—Right to Keep and Bear Arms.

In the wake of the mass shootings at Columbine High School and the Aurora movie theatre, the Colorado General Assembly passed House Bills 13-1224 (HB 1224), limiting large-capacity magazines (LCMs) for firearms, and 13-1229 (HB 1229), expanding mandatory background checks for firearm sales and transfers. HB 1224 added C.R.S.§§ 18-12-301, -302, and -303 (collectively, the statutes), which generally define an LCM as a magazine able to hold more than 15 rounds of ammunition and provide (with exceptions) criminal penalties for their sale, possession, and transfer after July 1, 2013.

Rocky Mountain Gun Owners, the National Association for Gun Rights, Inc., and Sternberg (collectively, plaintiffs) challenged the facial constitutionality of both bills under Colo. Const. art. II, § 13, which affords individuals the right to keep and bear arms. The district court granted the Governor’s C.R.C.P. 12(b)(5) motion to dismiss the complaint for failure to state a claim upon which relief could be granted. On the first appeal, a court of appeals division affirmed with respect to HB 1229, but remanded the case because the district court had erred in dismissing the HB 1224 claim. After a bench trial, the district court found that the statutes were constitutional.

On appeal, plaintiffs contended that the district court erred in finding the statutes constitutional. They argued that the prospective LCM ban should be subject to a heightened standard of review. The Colorado Supreme Court established the “reasonable exercise test” as the standard governing review of a claimed violation of the Colorado right to bear arms.

Plaintiffs also contended that the statutes should be interpreted as unconstitutionally broad because they ban “an overwhelming majority of magazines.” The court applied the reasonable exercise test and determined that the statutes are constitutional as a reasonable exercise of the state’s police power to protect the public’s health and safety because they (1) reasonably further a legitimate governmental interest in reducing mass shooting deaths; (2) are reasonably related to the legislative purpose of reducing mass shooting deaths; and (3) do not sweep constitutionally protected activities within their reach.

The order was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Entry of Charge Based on Jury’s Special Interrogatory Answers Violated Defendant’s Constitutional Right to Jury Trial

The Colorado Court of Appeals issued its opinion in People v. Oliver on Thursday, October 4, 2018.

Criminal Law—Possession of a Weapon by a Previous Offender—Right to Jury Trial—Waiver.

Defendant was tried on two felony menacing charges. Before trial, the parties agreed to bifurcate a possession of a weapon by a previous offender (POWPO) count. However, near the end of the trial, defense counsel agreed with the court’s suggestion of using a special interrogatory on possession instead of having a separate trial on the POWPO count after the jury returned its verdict on the menacing counts. Counsel also stipulated that defendant was a previous offender. The jury was not instructed on the POWPO charge. The jury acquitted defendant on one count and hung on the other. Based on the stipulation and the jury’s “yes” answer to the special interrogatory that asked whether defendant had possessed a firearm, the trial court entered a judgment of conviction for POWPO.

On appeal, defendant argued that the trial court directed a verdict on the POWPO charge in violation of his federal and state constitutional rights to a jury trial, which he did not personally waive. To return a verdict, a jury must have been instructed on the offense. Here, even if counsel stipulated to the prior offender element, defendant did not personally waive his right to have the jury return a verdict on the POWPO charge, and the trial court never told the jury that it was deciding the POWPO charge. Therefore, the judgment of conviction on the POWPO charge violated defendant’s constitutional right to a jury trial.

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

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Warrantless Search Justified Under Exigent Circumstances Exception

The Colorado Supreme Court issued its opinion in People v. Pappan on Monday, September 10, 2018.

Searches and Seizures—Emergencies and Exigent Circumstances—Plain View Doctrine.

In this interlocutory appeal, the supreme court considered whether the trial court erred in suppressing two laser-sight rifles seized from defendant’s residence during a warrantless search conducted after defendant and two other occupants exited the residence. The court held that the warrantless search was justified under the exigent circumstances exception to the warrant requirement. More specifically, the court concluded that (1) the officers had an objectively reasonable basis to believe there was an immediate need to protect their lives or safety by clearing the residence for other occupants, and (2) the manner and scope of the search was reasonable because it was protective in nature and narrowly tailored to neutralize the threat confronting the officers. The court further held that the seizure of the laser-sight rifles was justified by the plain view doctrine. Accordingly, the decision of the trial court was reversed.

Summary provided courtesy of Colorado Lawyer.