June 18, 2019

Colorado Court of Appeals: Trial Court Erred in Refusing to Grant Continuance

The Colorado Court of Appeals issued its opinion in People v. Senette on Thursday, July 26, 2018.

Criminal Law—Witness—Subpoena—Motion for Continuance—Bench Warrant.

The prosecution charged defendant with aggravated robbery and menacing against a single victim, M.T. When M.T., who was a necessary witness and was under subpoena, did not appear at trial, the prosecution requested that the trial court issue a bench warrant and grant a brief continuance to secure the M.T.’s attendance. The trial court denied both requests and, at defendant’s request, dismissed the charges.

On appeal, the People argued that the trial court erred by denying its motion for a continuance and dismissing the case. The trial court abused its discretion in denying the continuance because it (1) misapplied the law regarding the issuance of a bench warrant as a remedy to procure the attendance of a missing witness, and (2) failed to consider the factors relevant to the prosecutor’s motion to continue. Those factors included whether the prosecutor was diligent in securing the witness’s attendance, whether a continuance would be effective in securing the witness’s attendance, and the prejudice that a continuance would cause both parties.

The People also contended that the trial court erred in dismissing the charges after denying the continuance. Because the trial court erred in denying the motion for continuance, and the dismissal of the charges was a direct result of that erroneous decision, the trial court erred in dismissing the case.

The order was reversed and the case was remanded.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Trial Court Did Not Err in Denying Defense’s Requested Continuance

The Colorado Supreme Court issued its opinion in People v. Ahuero on Monday, October 2, 2017.

Criminal Law—Continuances.

This case required the Colorado Supreme Court to decide whether a trial court abused its discretion in denying a continuance that defense counsel requested seeking more time to prepare for trial. At the time the continuance was requested, the trial court considered the following factors: (1) defense counsel would have three weeks to prepare for a two- or three-day trial involving eight witnesses and no physical evidence, but defense counsel refused to make specific arguments on why the additional time was needed; (2) the trial court would have had to rearrange its docket and possibly hand off the case to a different judge; (3) priority is given to cases involving the sexual assault of a child; and (4) the victim’s family wanted to resolve the case promptly.

The supreme court concluded that, under these circumstances, the trial court’s decision to deny a continuance was not so manifestly arbitrary, unreasonable, or unfair to constitute an abuse of discretion. Therefore, the court reversed the court of appeals’ judgment and remanded the case for proceedings consistent with this opinion.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Defendant’s Failure to Communicate with Counsel Does Not Warrant Continuance

The Colorado Court of Appeals issued its opinion in People v. Faussett on Thursday, June 16, 2016.

Aggravated Motor Vehicle Theft in the First Degree—Motion for Continuance—Conflict of Interest—Co-Conspirator Statements.

Defendant’s conviction arose out of a theft of a scooter from a residential parking lot. Four days after the scooter was reported missing, police located a stolen pickup truck and ultimately arrested its driver. While in custody, the driver made several police-monitored phone calls to defendant and defendant’s girlfriend that included discussions about disposing of or selling the scooter. Defendant was arrested for the scooter’s theft and found guilty of aggravated motor vehicle theft in the first degree.

On appeal, defendant first argued it was error to deny his motion for a continuance. A week before trial, defendant’s counsel moved for a continuance because (1) the prosecutor had re-interviewed the girlfriend and counsel wanted to review a written report of the interview once it was completed, and (2) counsel had never met defendant outside of court to discuss the trial, and defendant had mentioned additional witnesses. The prosecutor responded that the new conversations with the girlfriend were consistent with what was in discovery. The court denied the motion. The Court of Appeals reviewed for abuse of discretion and found none: (1) there was no suggestion that the interview of the girlfriend contained anything different from what she had previously said, and (2) the lack of communication between counsel and defendant was the result of defendant’s actions, so no continuance should be granted. In addition, no offer of proof regarding the identity of the additional witnesses or what they might offer was made.

Defendant also argued that the court should have appointed “conflict-free counsel” to represent him. Because defendant never raised this issue with the district court nor expressed any dissatisfaction with counsel, there was no sua sponte requirement for the court to inquire as to this issue or provide him with different counsel.

Finally, defendant argued that it was error to admit evidence of four telephone calls made by the driver to him or the girlfriend. Prior to trial, the prosecutor filed a motion to allow admission of the calls under CRE 801(d)(2)(E) because they “were made by co-conspirators during the course and in furtherance of the conspiracy.” Defense counsel objected on the grounds that she wasn’t sure the prosecution could prove the existence of a conspiracy independent of the calls or that the calls were made in furtherance of the conspiracy. The prosecution argued that there was evidence that supported a conspiracy independent of the calls and the court agreed.

The Court examined each call to determine whether it was made in furtherance of the conspiracy. It found the first two calls were, but the last two, between the driver and the girlfriend, were not, and thus it was an abuse of discretion to admit them. However, because there was not a reasonable probability that their admission influenced the jury’s verdict, the error was harmless.

The judgment of conviction was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Interrogation in Open Kitchen with Defendant’s Husband Present was Non-Custodial

The Colorado Court of Appeals issued its opinion in People v. Travis on Thursday, June 16, 2016.

Assault—Interview—Miranda—Motion to Suppress—Request for New Counsel—Continuance—Prosecutorial Misconduct.

Travis was convicted of second degree assault causing serious bodily injury, felony menacing, and third degree assault with a deadly weapon. She was sentenced to 10 years’ imprisonment and three years of mandatory parole.

On appeal, Travis argued that the trial court erroneously concluded that she was not in custody during the interview with police that occurred at her home and that, because she was not advised of her Miranda rights, the court erred in denying her motion to suppress the statements she made at that time. The Court of Appeals determined that (1) neither of the officers used physical restraint or force on Travis during the interview at her home; (2) Travis did not request to end the interview; (3) the interview was brief; (4) only two officers questioned Travis, the tone of the interview was conversational, and the questioning took place in Travis’s home with her husband in view; and (5) the interview took place in Travis’s kitchen, not in a secluded location. Thus, Travis was not in custody when she gave the statements at her home to the police, the statements were voluntary, and the trial court did not err in denying her motion to suppress them.

Travis also argued that the trial court abused its discretion when it denied her request for a continuance to seek new counsel on the morning of trial. Because there was insufficient information in the record to determine whether the trial court weighed the 11 essential factors or abused its discretion in denying the motion to continue, the case was remanded to the trial court for additional findings.

Additionally, Travis argued that the prosecutor’s closing argument was improper. However, the prosecutor’s remarks were a fair comment on the defense’s jury argument that while Travis was guilty of a crime, she was not guilty of the principal charges filed against her.

The judgment was affirmed in part and the case was remanded with directions.

Summary provided courtesy of The Colorado Lawyer.