August 20, 2019

Tenth Circuit: When Defendant Enters Guilty Plea to Drug Charge with Attendant Quantity, Defendant Subject to Enhanced Penalties Associated Therewith

The Tenth Circuit Court of Appeals issued its opinion in United States v. Roe on Tuesday, January 29, 2019.

Mr. Roe plead guilty to conspiring to possess with intent to distribute 280 grams or more of cocaine base and five kilograms or more of cocaine. Pursuant to the terms of Mr. Roe’s plea agreement, the government requested a sentence below the twenty-year mandatory minimum. The district court sentenced Mr. Roe to a fifteen-year imprisonment.

Mr. Roe filed a § 2255 motion to vacate, set aside, or correct his sentence. He asserted trial counsel was ineffective for failing to challenge the drug quantity at the sentencing hearing, and for failing to file a notice of appeal as requested. The district court denied the drug-quantity claim, concluding Mr. Roe’s guilty plea established the relevant quantity. After trial counsel testified Mr. Roe never requested a notice of appeal be filed, Mr. Roe sought to amend his failure-to-file claim to focus on trial counsel’s failure to consult with him as to whether an appeal should be filed. The district court concluded that the failure-to-consult claim was an untimely new claim that did not relate back to the failure-to-file claim set forth in the original § 2255 motion, or in the alternative, the failure-to-consult claim failed on the merits.

The Court of Appeals affirmed the district court’s rulings. The Court held that when a criminal defendant enters a knowing and voluntary guilty plea to an indictment charging a drug conspiracy with an attendant quantity element, the defendant is subject to the enhanced penalties associated with the quantity. The Court also held Mr. Roe’s failure-to-consult claim did not relate back to his failure-to-file claim, and was therefore untimely.

In his original § 2255 motion, Mr. Roe asserted trial counsel should have objected at the sentencing to the applicability of the quantity-based, statutory mandatory minimum sentence. Specifically, Mr. Roe took issue with the quantity of drugs calculated in the  Presentence Investigation Report. The district court rejected Mr. Roe’s argument, finding that Mr. Roe knowingly and voluntarily admitted in the plea agreement that he conspired to distribute and possess with intent to distribute five kilograms or more of cocaine.

The district court concluded that the precise amount of drugs calculated in the Presentence Investigation Report was immaterial, because Mr. Roe’s plea to a conspiracy involving five kilograms or more of cocaine established the statutory minimum for his sentence. The district court noted that Mr. Roe never lodged a substantive, stand-alone challenge to the factual basis of his guilty plea. In other words, Mr. Roe did not seek to invalidate his plea on the basis that it is not supported by an adequate factual basis; instead, he attempted to escape the burden of his guilty plea while maintaining the benefits flowing from the plea agreement. The district court ruled that because Mr. Roe entered the guilty plea, the trial counsel’s failure to object to the sentence was neither deficient nor prejudicial.

On appeal, Mr. Roe argued that the district court erred in determining that the admission in his guilty plea established the applicability of the mandatory minimum. The Court of Appeals disagreed, finding that a knowing and voluntary guilty plea to a charge with an attendant quality element subjects the defendant to any enhanced penalties associated with that quantity. Therefore, the district court was correct in its ruling that Mr. Roe’s guilty plea established the applicability of the mandatory minimum, and thus Mr. Roe’s claim that his trial counsel was ineffective for failing to object to the applicability of the twenty-year mandatory minimum sentence must fail. 

Mr. Roe also asserted in his original § 2255 motion that he specifically instructed his trial counsel to file a notice of appeal. Following an evidentiary hearing, trial counsel testified that an appeal had never been discussed, and Mr. Roe had never instructed him to file a notice of appeal. Mr. Roe then sought to amend his § 2255 motion to include a failure-to-consult claim, and argued that his conduct during representation should have led trial counsel to believe Mr. Roe was interested in filing an appeal. In support of this position, Mr. Roe asserted that the question of whether the PSR attributed too much cocaine to Mr. Roe and whether there was a sufficient factual basis for a guilty plea to the conspiracy count. The district court concluded that the failure-to-consult claim was a new theory, and therefore time-barred. In the alternative, the district court further rejected the failure-to-consult claim on the merits.

The Court of Appeals agreed with the district court, concluding that the failure-to-consult claim set out in the amended § 2255 motion was based on an entirely new theory that would have had to be pleaded discreetly and supported by separate, specific factual averments. Therefore, the failure-to-consult claim did not assert a claim that arose out of the conduct in the original pleading and thus did not relate back to the original pleading. The Court of Appeals therefore held that because the failure-to-consult claim did not relate back to the original pleading, and was filed well past the one-year statute of limitation period, the failure-to-consult claim was time-barred.

Tenth Circuit: No Error in Failing to Grant Mistrial After Prosecution Elicited Previously-Barred Testimony

The Tenth Circuit Court of Appeals issued its opinion in United States of America v. Hargrove on Wednesday, January 2, 2019.

Defendant Mr. Hargrove was convicted and sentenced to sixty months imprisonment for conspiracy to distribute more than 100 kilograms of marijuana in violation of 21 U.S.C. § 846, and of possession with intent to distribute 100 kilograms or more of a substance containing a detectable amount of marijuana, and aiding and abetting said possession, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B), and 18 U.S.C. § 2.

Mr. Hargrove raised two challenges on appeal. First, the district court erred in failing to grant him a mistrial after the prosecutor elicited testimony that the district court had previously barred. Second, the district court erred in failing to grant him safety-valve relief under § 5C1.2 of the United States Sentencing Guidelines (U.S.S.G.). The Court of Appeals found no error in the district court’s rulings, and affirmed the district court.

Mr. Hargrove and two others were all found in Mr. Hargrove’s truck in the desert near the border between Arizona and New Mexico. Mr. Hargrove’s truck contained nearly 300 pounds of marijuana and two firearms. Prior to trial, Mr. Hargrove filed a motion in limine, in part to request that the district court exclude evidence that one of the firearms was stolen. The district court ruled that this evidence was inadmissible, as the risk of prejudice substantially outweighed any conceivable relevance, but allowed testimony about the presence of loaded firearms in the truck.

During trial, the prosecutor elicited testimony about the stolen gun, to which Mr. Hargrove’s counsel promptly objected and moved for mistrial. The court instructed the jury that they were to disregard anything regarding the firearm or its ownership. The prosecutor also took remedial measures during the remainder of the trial. Specifically, the prosecutor withdrew an exhibit displaying weapons retrieved from the truck, did not seek testimony from its expert witness regarding the use of firearms in the narcotics trade, and did not discuss either firearm during its closing arguments.

Following Mr. Hargrove’s conviction, Mr. Hargrove argued that he qualified for the safety-valve adjustment during sentencing under U.S.S.G. § 5C1.2. The district court denied Mr. Hargrove safety-valve relief.

With respect to the district court’s denial of Mr. Hargrove’s motion for mistrial, the Court weighed the three factors of the Meridyth test. First, the Court considered whether the prosecutor acted in bad faith. The Court noted that the prosecutor had specifically instructed the witness not to testify about the stolen nature of the gun. Further, the prosecutor’s conduct in immediately accepting responsibility for the improper testimony and taking steps to mitigate its prejudicial effects throughout the remainder of the trial was a strong indication that the prosecutor did not act in bad faith. The Court found this factor to weigh in favor of the government.

Next, the Court considered whether the district court limited the effect of the improper statement through its instructions to the jury. The Court noted that the district court gave two limiting instructions to the jury, one directly following the improper testimony, and one following the close of evidence. Because the district court had expressly and specifically emphasized that the jury was not to consider the improper statement for any purpose, the Court presumed the jury understood it was obliged not to consider any inferences based on such testimony and found this factor to weigh in favor of the government.

Finally, the Court considered whether the improper remark was inconsequential in light of the other evidence of the defendant’s guilt. The Court found that there was undisputed testimony which unequivocally indicated Mr. Hargrove was aware of and actively participated in the drug exchange, and any improper effect the improper statement may have had on the jury paled in comparison to the total weight of the government’s evidence, and therefore found this factor to weigh in favor of the government. Because the Court found all three factors weighed in favor of the government, the Court concluded that the district court did not err in denying Mr. Hargrove’s motion for a mistrial.

Mr. Hargrove also asserted the district court erred in denying him a U.S.S.G. § 5C1.2 safety-valve adjustment during sentencing. The district court had concluded that Mr. Hargrove was ineligible for the safety-valve reduction because the loaded firearms were located in the truck in close proximity to the drug trafficking, and had the potential to facilitate the drug trafficking. Mr. Hargrove argued on appeal that his possession of the firearms was unrelated to the drug-trafficking activity.

The Court disagreed. The Court explained that in evaluating the firearms provision of the safety-valve provision, there is a focus on the defendant’s own conduct and the nature of possession. The Court stated that active possession, by which there is a close connection linking the individual defendant, the weapon, and the offense, is sufficient to bar the application of the safety-valve. The Court noted that Mr. Hargrove had made no argument that the firearms were not his nor that the firearms were merely constructively possessed, instead Mr. Hargrove had conceded actual possession of the firearms by admitting that the firearms belonged to him and that he had brought them in the vehicle to the scene of the arrest. The Court held that for purposes of satisfying the safety-valve criteria, a firearm is possessed in connection with the offense if the firearm facilitates are has the potential to facilitate the offense. The Court therefore concluded that the district court did not err in denying safety-valve relief.


Colorado Supreme Court: Trial Court Erred by Concluding Ex Parte Review of Defense’s Competency Motion Prohibited

The Colorado Supreme Court issued its opinion in In re People v. Roina on Monday, March 25, 2019.

Competency Proceedings.

The supreme court addressed whether a trial court erred in requiring the defense to provide a copy of its sealed motion raising competency to the prosecution before conducting an initial competency evaluation of defendant. Because C.R.S. § 16-8.5-102(2)(b) requires trial courts to consider defense motions raising competency without disclosing that motion to the prosecution, the court determined that the trial court erred in concluding that Rule 2.9(A) of the Colorado Code of Judicial Conduct prohibits the trial court from conducting an ex parte review of the defense’s motion. Accordingly, the court made its rule to show cause absolute.

Summary provided courtesy of Colorado Lawyer.

Tenth Circuit: District Court Erred in Treating Defendant’s Prior Convictions as “Violent Felonies” Under ACCA


The Tenth Circuit Court of Appeals issued its opinion in United States v. Bong on Monday, January 28, 2019.

Defendant Troy Bong was convicted of being a felon in possession of a firearm and sentenced to 293 months of imprisonment. Because Mr. Bong had prior Kansas state convictions for robbery and aggravated robbery, the district court found Mr. Bong was subject to an enhanced sentence under the Armed Career Criminal Act (ACCA). Mr. Bong filed a motion to vacate, set aside, or correct his sentence pursuant to § 2255.

The district court granted a Certificate of Appealability (“COA”) on two of Mr. Bong’s grounds for relief, and denied Mr. Bong’s § 2255 motion. On appeal, the Court of Appeals granted a COA on two additional issues.

Mr. Bong first asserted that under Johnson v. United States, his prior convictions did not qualify as violent felonies, and he was therefore improperly sentenced under the ACCA. The district court rejected this argument, and concluded that the elements of robbery under Kansas law incorporated the physical force necessary to constitute a violent offense for purposes of the ACCA.

On appeal, the Court evaluated whether the Kansas robbery statute and the Kansas aggravated robbery statute have as an element the use, attempted use, or threated use of physical force against the person of another, and would thus be violent felonies for purposes of the ACCA. Citing to federal law, the Court of Appeals outlined the meaning of the ACCA’s elements clause as referring to the active, attempted, or threatened employment of violent force—force capable of causing physical pain or injury—against the person of another.

With respect to the Kansas robbery statute, the Court of Appeals first identified the minimum force required by Kansas law to constitute the crime of robbery. The Court found the Kansas state robbery statute may be violated with minimum actual force (i.e., a defendant may be convicted of robbery under Kansas law without using violence or the actual application of force to the person of another). The Court therefore held that the Kansas robbery statute does not qualify as a violent felony under the ACCA, and thus a conviction under the statute cannot serve as a predicate offense for purposes of the ACCA’s sentence enhancement provisions.

In evaluating the Kansas aggravated robbery statute, the Court found that the simple possession of a weapon, rather than the use of a weapon, is a sufficient means of being “armed” for purposes of a conviction under the statute. The Court noted that had the Kansas aggravated robbery statute required the use of a dangerous or deadly weapon, then a conviction under the statute would constitute a predicate offense under the ACCA. However, the Court found that merely being armed with a weapon during the course of a robbery is not sufficient to render the crime a violent crime for purposes of the ACCA.

The Court therefore held that Mr. Bong’s Kansas convictions for robbery and aggravated robbery did not constitute violent felonies for purposes of the ACCA. The Court therefore reversed the district court’s denial of Mr. Bong’s § 2255 motion, and remanded for further proceedings.

Mr. Bong next asserted that his trial and appellate counsel were ineffective for failing to challenge the ACCA sentencing. The district court denied the claim. The Court of Appeals did not address the claim, having already concluded the district court erred in basing Mr. Bong’s ACCA sentence on his prior Kansas robbery and aggravated robbery convictions.

Mr. Bong also asserted his trial counsel was ineffective for failing to investigate the facts of the alleged crime. The district court rejected this claim, finding that Mr. Bong’s § 2255 motion failed to identify any material matters that trial counsel failed to investigate.

The Court of Appeals affirmed in part, finding that the district court properly rejected Mr. Bong’s allegation with one exception. While incarcerated, Mr. Bong allegedly discovered the existence of evidence in support of his argument that the firearm evidence was obtained in violation of his Fourth Amendment rights. The district court did not expressly address the claim in denying Mr. Bong’s § 2255 motion, concluding that it was a new claim and barred by the statute of limitations. The Court of Appeals reversed and remanded for further proceedings with respect to this issue, finding that in rejecting the claim as time-barred, the district court failed to consider the date on which the facts supporting the claim could have been discovered through the exercise of due diligence.

Finally, Mr. Bong contended that the district court erred in dismissing his claim that the prosecution suppressed the evidence Mr. Bong discovered while incarcerated. The district court rejected this claim as time-barred. Citing again to the district court’s failure to consider that Mr. Bong’s § 2255 motion was filed within one year of Mr. Bong’s discovery of the existence of the evidence at issue, the Court of Appeals reversed and remanded for further consideration.


Tenth Circuit: Prejudicial Nature of Prosecutor’s Improper Conduct Did Not Significantly Affect Outcome of Proceedings

The Tenth Circuit Court of Appeals issued its opinion in Simpson v. Carpenter on Thursday, December 27, 2018.

Oklahoma prisoner Kendrick Simpson sought federal habeas relief from his death sentence for two counts of first-degree murder. The district court denied Simpson’s petition and on appeal, the Court of Appeals found no reversible error and affirmed.

Following an altercation in a night club, Mr. Simpson had fired multiple shots at a moving vehicle containing three passengers. Two of the three passenger victims died at the scene from their gunshot wounds. The State of Oklahoma charged Mr. Simpson with the first-degree murders of the two passenger victims, and with discharging a firearm with intent to kill the third passenger. The prosecution sought a penalty of death for each murder.

The jury convicted Mr. Simpson of two counts of first-degree murder, and sentenced him to death. Mr. Simpson appealed his convictions and sentences, and sought federal post-conviction relief. The district court granted a Certificate of Appealability (“COA”) on two of Mr. Simpson’s eighteen grounds for relief, and the Tenth Circuit subsequently granted a COA on five additional issues.

Mr. Simpson first asserted he was entitled to federal habeas relief because the trial court erroneously excluded expert testimony regarding his PTSD diagnosis and dissociative episodes. Mr. Simpson claimed the testimony was necessary to support the defense that he was incapable of forming the specific intent necessary to commit first-degree murder, and that the Oklahoma Criminal Court of Appeals’ (“OCCA”) determination that the PTSD evidence was irrelevant was both contrary to and an unreasonable application of clearly established federal law. The State countered that the claims were unexhausted, and therefore Mr. Simpson was barred from presenting the arguments on appeal.

The Court rejected the State’s argument that Mr. Simpson’s PTSD claim was unexhausted, concluding instead that although his claim was now more refined, the core of his argument was the same. However, his argument with respect to the dissociative episodes resulting from his PTSD were new. The Court therefore found that Mr. Simpson had properly exhausted his PTSD argument, but that he had failed to properly preserve his argument concerning his dissociative episodes. Turning to the merits, the Court found that the expert testimony regarding Mr. Simpson’s PTSD diagnosis was devoid of any detail on the impact Mr. Simpson’s PTSD had on his ability to form the intent to kill as well as the interactive effects of PTSD and intoxicants. The Court therefore found that the OCCA was reasonable in its determination that the expert testimony regarding Mr. Simpson’s PTSD was irrelevant.

Mr. Simpson next asserted an alleged Brady violation by the prosecutor’s withholding of impeachment evidence as to a jailhouse informant, which he argued was critical to support the Continuing Threat Aggravator. The OCCA had ruled Mr. Simpson’s Brady claim had been waived because Mr. Simpson did not present his Brady claim until his second application for post-conviction relief, in violation of state procedural rules.

Focusing on whether Mr. Simpson was prejudiced by the suppressed evidence, the Court found that the State’s other evidence presented at trial was strong enough to support the Continuing Aggravating Threat factor, even without their reliance on the testimony of the jailhouse informant. The Court concluded that there was no reasonable probability that the jury would have returned a different verdict had the testimony been impeached, therefore the evidence was not material under Brady, and Mr. Simpson could not demonstrate prejudice. Accordingly, the Court held Mr. Simpson’s Brady claim was precluded from federal habeas review, as he could not establish both cause and prejudice as necessary to overcome the state procedural bar.    

Mr. Simpson also claimed that the trial court’s jury instructions and the prosecutor’s improper arguments unconstitutionally limited the jury’s consideration of mitigating evidence. The Court rejected Mr. Simpson’s argument as to the jury instructions, citing its decision in Hanson v. Sherrod,which addressed the constitutionality of the same instructions. The Court went on to explain that because the jury instructions permitted the jury to consider mitigating circumstances other than those enumerated for them, there was no reasonable likelihood the jury would have felt precluded from considering other mitigating evidence, and the OCCA was therefore reasonable in its finding of the same.

With respect to the prosecutor’s improper arguments, Mr. Simpson contended that the prosecutor not only argued that the evidence did not sufficiently mitigate the conduct, the prosecutor suggested that the evidence should not be considered by the jury at all, thus unfairly limiting the jury’s consideration of the mitigating evidence offered. While the Court noted that there were significant and troubling prosecutorial comments (and went so far as to chastise the conduct in a related footnote), the Court found the OCCA was reasonable in its decision that the jury was not precluded from considering the evidence offered by Mr. Simpson because of the language of the jury instructions.

Mr. Simpson next claimed that prosecutorial misconduct denied him a fundamentally fair sentencing proceeding. While the Court acknowledged that the prosecutorial statements at issue were improper, the Court relied on the State having presented significant aggravating evidence to conclude that the OCCA acted reasonably in deciding that the prejudicial impact of these comments did not render the sentencing trial fundamentally unfair.

Mr. Simpson also argued that there was insufficient evidence to support the heinous, atrocious, or cruel aggravating factor determination, and the finding was therefore unconstitutional and unreasonable. Although no evidence was presented with respect to how long the victim remained conscious after having been shot or as to whether the victim appeared to be in pain, the Court found that the jury could have reasonably inferred that the victim experienced conscious physical suffering based on the evidence about the victim’s wounds, therefore OCCA was reasonable in deciding there was sufficient evidence to support the jury’s finding with respect to the HAC Aggravating factor.

Mr. Simpson also alleged his trial counsel was constitutionally ineffective during both the guilt and sentencing stages of the trial. The Court disagreed, and discussed each instance of alleged ineffective counsel individually. First, with respect to the trial counsel’s alleged failure to investigate and present mitigating evidence, the Court concluded that the State had presented strong evidence in support of the death sentence, and the additional mitigating evidence would have done little if anything to undermine the jury’s findings. Second, the Court found that Mr. Simpson’s trial counsel was not required to request an instruction for second-degree murder, as the offense was not reasonably supported by the evidence. Third, with respect to the trial counsel’s failure to object to improper prosecutorial argument, the Court noted it had already been determined that the prosecutor’s misconduct did not deprive Mr. Simpson of a fundamentally fair sentencing trial, therefore Mr. Simpson could not show that he was actually prejudiced by counsel’s deficient performance. Finally, the Court concluded that the trial counsel did not perform deficiently in failing to object to the jury instruction on mitigation evidence because the mitigation instruction was a correct statement of law. The Court therefore concluded that the OCCA’s adjudication of Mr. Simpson’s ineffective assistance of counsel claim was reasonable.

Mr. Simpson’s final claim was that the cumulative errors in his trial denied him a fundamentally fair trail and sentencing proceeding. Despite the identified errors, the jury was presented with copious amounts of aggravating evidence, overwhelming evidence of guilt, and proper instructions from the trial court. The Court therefore found the OCCA was reasonable in its finding that the cumulative effect of the prosecutorial misconduct and instances of his counsel’s deficient performance was harmless.

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: Postconviction Claim Is Illegal Manner Claim Under Crim. P. 35(a) and Therefore Time-Barred

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

Criminal Procedure—Restitution—Sentence Imposed in Illegal Manner—Timeliness—Due Process.

Defendant pleaded no contest to third degree assault and was sentenced to probation. As part of the plea agreement, he agreed to pay restitution. At the time of the agreement, the prosecution did not have complete information regarding restitution, so the district court reserved the restitution determination for 90 days. The prosecution moved for an order imposing restitution 100 days later. Defendant filed no response, and the district court granted the motion, stating that the amount was not final because the amount of restitution owed to the victim compensation fund had yet to be determined. The prosecution later moved to amend the restitution amount, reducing the total amount due. Defendant again filed no response, and the district court granted this motion as well. More than three years later, defendant filed a motion to vacate the restitution order, which was denied.

On appeal, defendant claimed that the district court did not address good cause in a timely fashion, thus ignoring essential procedural rights or statutory considerations. Defendant’s claim was a challenge to the manner in which the sentence was imposed rather than a claim that his sentence was not authorized by law. A claim that a sentence was imposed in an illegal manner must be raised within 126 days of the imposition of the sentence. Because defendant filed his motion to vacate the restitution order well beyond the 126-day limit, his motion was time barred.

Defendant also asserted that the district court violated his due process right by making a post hoc finding of good cause in permitting the tardy restitution request and relying on information presented by the prosecution long after the restitution order was entered. This is a challenge to the constitutionality of the restitution component of the sentence. As such, this claim is cognizable under Crim. P. 35(c). However, a Rule 35(c) challenge to a misdemeanor conviction or sentence must be brought within 18 months of the conviction. Because defendant’s motion was filed after this deadline, his due process challenge is also time barred.

The order was affirmed.

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 Court of Appeals: Trial Judge who Witnessed Crime in Courtroom May Have Appearance of Impropriety for Later Related Proceedings

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

Criminal Law—Judge—Recusal—Personal Knowledge—Extrajudicial Source Doctrine— Colorado Code of Judicial Conduct Rule 2.11(A)(1)—Appearance of Impropriety—Disqualification.

Roehrs was an interested party in a dependency and neglect hearing at which Judge Cisneros presided. At the hearing, Sergeant Couch testified concerning Roehrs’s presence at the scene of an investigation that he was conducting. During Sergeant Couch’s testimony, Roehrs stood up, walked toward the witness stand, and said, “You’re a liar. I am going to have your job.” Judge Cisneros asked Roehrs to leave the courtroom, which Roehrs did. After Sergeant Couch’s testimony, Roehrs threatened him in the courtroom hallway. Judge Cisneros later called Sergeant Couch and the attorneys into her chambers to discuss what had happened outside the courtroom.

The People charged Roehrs with retaliation against a witness, harassment, and intimidating a witness. Before trial, Roehrs’s counsel moved to recuse Judge Cisneros. Judge Cisneros denied the motion, ruling that Roehrs failed to prove bias or personal knowledge of the disputed facts. Judge Cisneros presided over Roehrs’s criminal trial. Roehrs contested a number of factual issues. A jury found Roehrs guilty of retaliation against a witness and harassment.

On appeal, Roehrs contended that the trial court erred in denying her motion to recuse because she had personal knowledge of disputed facts and was a material witness to Roehrs’s conduct; thus, there was an appearance of bias or prejudice. Judge Cisneros was not a likely material witness. But under Colorado Code of Judicial Conduct Rule 2.11(A)(1), a judge need not be a likely material witness for disqualification to be mandated; all that is required is personal knowledge of the facts that are in dispute. The court of appeals examined the scope of the extrajudicial source doctrine and concluded that although knowledge gained in the course of a judge’s courtroom duties does not normally prevent a trial judge from presiding over subsequent, related proceedings, when a trial judge witnesses all or part of a crime in the courtroom, she has personal knowledge of facts that are in dispute within the meaning of Rule 2.11(A)(1). Here, the judge witnessed part of the crime and thus had personal knowledge of disputed facts. Accordingly, Roehrs’s motion was sufficient to raise an appearance of bias or prejudice and Judge Cisneros’s continued participation in the trial was improper.

The judgment of conviction was reversed and the case was remanded with directions to grant appellant a new trial before a different judge.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: CRE 901 Requires Flexible, Factual Inquiry to Determine Whether Proffered Evidence is What Proponent Claims

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

Criminal Law—Evidence—Authentication—Voicemail Recording—Photographs.

Gonzales grew up down the street from the victim. He was sexually attracted to the victim from a young age. Gonzales eventually moved away from the neighborhood. Years later, Gonzales broke into the victim’s house and waited a substantial time for the victim to return. When the victim returned, Gonzales repeatedly stabbed him in the neck, killing him. Gonzales then sexually assaulted the victim’s dead body and attempted, unsuccessfully, to set the house on fire to destroy the evidence. Gonzales fled the scene with a credit card, a debit card, and cash that he had taken from the victim’s wallet. Gonzales was charged and convicted of first degree murder with intent and after deliberation, first degree felony murder, abuse of a corpse, stalking, arson, burglary, and aggravated robbery.

On appeal, Gonzales argued that the trial court erred in admitting a tape recording of a voicemail that he allegedly left for the victim because the prosecution did not properly authenticate the recording of the voicemail. Here, the victim’s sister found the recording in his house after the premises were released to her by the police. A police officer who interrogated Gonzales at length testified that Gonzales’s voice was heard on the voicemail. Gonzales did not claim that the recording was falsified or manipulated. These uncontested facts supported a CRE 901 finding that the voicemail was what the prosecutor purported it to be, a voicemail left by Gonzales for the victim. Accordingly, the trial court did not abuse its discretion in admitting the voicemail.

Gonzales also argued that the trial court abused its discretion in admitting a photograph showing Gonzales’s tattoos because it was both irrelevant and highly prejudicial. The tattoo on one arm says “CHUBBY” and the tattoo on the other says “CHASER.” Gonzales admitted both that he was he was attracted to larger men and that he killed a person who fit that physical description. On these facts, the jury was entitled to consider the probative value of the tattoos.

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Jury Instruction Defining “Hesitate to Act” Did Not Lower Prosecution’s Burden of Proof

The Colorado Supreme Court issued its opinion in Johnson v. People on Monday, March 11, 2019.

Jury Instructions—Reasonable Doubt—Burden of Proof—Due Process.

In this case, the supreme court considered whether the trial court’s jury instruction defining “hesitate to act” lowered the prosecution’s burden of proof in violation of due process. The court held that the instruction did not lower the prosecution’s burden of proof in violation of due process. Because the instruction was nonsensical, given only once during voir dire, not referenced by either party at any time, and flanked by the proper instruction regarding the burden of proof at the beginning and end of trial, there is not a reasonable likelihood that the jury understood the instruction and applied it in a manner that lowered the prosecution’s burden.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Deputy Had Reasonable, Articulable Suspicion to Stop Defendant; Suppression Order Reversed

The Colorado Supreme Court issued its opinion in People v. Threlkel on Monday, March 11, 2019.

Investigatory Stop—Grounds for Stop or Investigation—Fellow-Officer Rule.

An extensive narcotics investigation culminated in arrest warrants for defendant and her significant other based on their alleged distribution of controlled substances. While attempting to execute the warrants, deputies observed a truck belonging to defendant’s significant other driving away from the residence shared by the couple. The deputies suspected that defendant was a passenger in the truck. As the deputies tried to stop the truck, it evaded them. At one point, the deputies observed a white bag fly out of the passenger window, which supported their belief that there was a passenger in the truck. The truck eventually stopped within a mile of the home. Inside, they located defendant’s significant other, but not defendant. Moments later, however, defendant was spotted a couple of hundred yards away, attempting to hitch a ride. It was a frigid and snowy night, the roads were slippery, and there was no easy access on foot between the home and the location of the stop. A deputy who recognized defendant detained her, and she was later arrested on her outstanding warrant.

The trial court suppressed all evidence and observations derived from defendant’s stop, finding that the deputies lacked reasonable, articulable suspicion to detain her. Later, the trial court explained that its suppression order included the deputies’ observations and investigation before they contacted defendant. The supreme court reversed. It concluded that the deputies had reasonable, articulable suspicion to stop defendant. It further concluded that the trial court lacked authority to suppress the deputies’ observations and investigation before they contacted defendant.

Summary provided courtesy of Colorado Lawyer.