February 21, 2019

Colorado Supreme Court: DUI, Fourth Offense, is Class 4 Felony Therefore Defendant Entitled to Preliminary Hearing

The Colorado Supreme Court issued its opinion in In re People v. Tafoya on Tuesday, February 19, 2019.

Sentencing and Punishment—Criminal Law—Preliminary Hearings

In this original proceeding pursuant to C.A.R. 21, the supreme court reviewed the district court’s ruling denying petitioner a preliminary hearing when she was charged with Driving Under the Influence (DUI)—fourth or subsequent offense, a class 4 felony under C.R.S. § 42-4-1301(1)(a), and was being held in custody on that charge.

The court issued a rule to show cause and now makes the rule absolute. C.R.S. § 16-5-301(1)(b)(II) provides that a defendant who is accused of a class 4, 5, or 6 felony and is in custody for that offense “may demand and shall receive a preliminary hearing.” The legislature amended the DUI statute to provide that DUI is a class 4 felony if the violation occurred after three or more prior convictions arising out of separate and distinct criminal episodes. Here, the complaint and information accused petitioner of committing a class 4 felony and she was being held in custody on that charge. Accordingly, under the plain language of the statute, petitioner was entitled to a preliminary hearing, and the district court erred in denying her request for such a hearing.

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C.R.C.P. 80, C.R.C.C.P. 380, and Crim. P. 55 Amended in Rule Changes 2019(06) and 2019(07)

On Thursday, February 14, 2019, the Colorado Supreme Court issued Rule Change 2019(06) and Rule Change 2019(07), effective immediately.

Rule Change 2019(06) repeals Rule 80 and amends Rule 380 of the Colorado Rules of Civil Procedure. A comment has been added to Rule 80, stating “C.R.C.P. 80 has been repealed as Chief Justice Directive 05-03 entitled, Management Plan for Court Reporting and Recording Services, addresses matters related to court reporters in District Court matters.” Subsection (c) of Rule 380 was amended as follows:

(c) Reporter’s Notes, Electronic or Mechanical Recording; Custody, Use, Ownership, Retention. All reporter’s notes and electronic or mechanical recordings shall be the property of the state. The notes and recordings shall be retained by the court for no less than six months after the creation of the notes or recordings, or such other period as may be prescribed by supreme court directive or by instructions in the manual entitled, Colorado Judicial Department , Records Retention Manual Management. During the period of retention, notes and recordings shall be made available to the reporter of record, or to any other reporter or person the court may designate. During the trial or the taking of other matters on the record, the notes and recordings shall be considered the property of the state, even though in the custody of the reporter, judge, or clerk. After the trial and appeal period, the reporter shall list, date and index all notes and recordings and shall properly pack them for storage. Where no reporter is used, the clerk of court shall perform this function. The state shall provide the storage containers and space

Rule Change 2019(07) amended Rule 55 of the Colorado Rules of Criminal Procedure. Subsection (e) of Rule 55 was amended as follows:

(e) Reporter’s Notes; Custody, Use, Ownership, Retention. The practice and procedure concerning reporter’s notes and electronic or mechanical recordings shall be as prescribed in Rule 80, C.R.C.P., for district courts and Rule 380, C.R.C.P., for county courts. For proceedings in district court, the practice and procedure concerning court reporter notes and electronic or mechanical recordings shall be as prescribed in Chief Justice Directive 05-03, Management Plan for Court Reporting and Recording Services. For proceedings in county court, that practice and procedure shall be as prescribed in C.R.C.P. 380.

Redlines and clean versions of the rule changes are available here. For all of the Colorado Supreme Court’s adopted and proposed rule changes, click here.

Colorado Court of Appeals: Trial Court Erred in Finding Outrageous Government Conduct and Dismissing Case

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

Attempting to Influence a Public Servant—False Reporting—Outrageous Governmental Conduct—Work Product Privilege.

Defendant alleged that she went out drinking one night with a coworker and then went with him to his home. She reported that later that evening the coworker’s roommate raped her.

DNA evidence conclusively showed that it could not have been the roommate who had sexual contact with defendant; rather, the coworker had had sexual contact with defendant. Two prosecutors, a prosecutor’s office investigator, and a police detective interviewed defendant about these results at her home. The interview was conducted in the presence of family members and friends and was recorded on video. During the interview, defendant became upset and told the investigators and prosecutors to leave, and they did. Prosecutors charged defendant with two counts of attempting to influence a public servant and one count of false reporting.

At a hearing, defendant argued that the videotape of the interview should be suppressed and the case should be dismissed because the government’s conduct was outrageous. Prosecutors repeatedly used the work product privilege to block evidence showing why they chose to videotape the interview or that might explain their decision making process in filing the charges. The trial court dismissed the case against defendant based on a finding of outrageous government conduct.

On appeal, the People asserted that the trial court erred in concluding that there was outrageous government conduct warranting dismissal of the charges against defendant. Outrageous governmental conduct is conduct that violates fundamental fairness and shocks the universal sense of justice. Here, the trial court concluded, without evidentiary support, that videotaping the defendant was improper. Further, the prosecutor’s proper use of the work product privilege cannot from the basis for a finding of outrageous conduct. In addition, the trial court found a violation of the Victim Rights Act without identifying the specific section violated, and the videotape shows that defendant was treated with respect and was not harassed or abused. While the government’s behavior might be considered poor judgment or even legal error, the trial court’s findings of fact do not support its conclusion that the government’s conduct was outrageous. Because the trial court’s findings of fact are not supported by the record, they were arbitrary and thus an abuse of discretion.

The order dismissing the case was reversed and the case was remanded with directions to reinstate the charges and to consider the motions still pending before it, including whether the interview should be suppressed because the totality of the circumstances surrounding it constituted psychological coercion.

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Colorado Court of Appeals: Defense Counsel’s Error in Declining to Object to Inapplicable Jury Instruction Amounted to Forfeiture

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

Criminal Law—Jury Instructions—Waiver—Forfeiture.

Defendant was convicted in one trial of charges stemming from four consolidated criminal cases. This case was remanded from the Supreme Court to reconsider the disposition of the conviction for first degree assault in light of People v. Rediger, 2018 CO 32.

On remand, Ramirez argued that the trial court’s jury instruction on deadly physical force, which related to the charges of first degree assault, second degree assault, and third degree assault, was improper. It was error for the court to instruct the jury on deadly physical force because defendant was not accused of causing death. By giving an inapplicable instruction and incorporating it into the elemental instruction for first, second, and third degree assault, the court would have caused the jury to have an incorrect understanding of the elements of those charges. The prior court of appeals’ division concluded that Ramirez had waived his contention of instructional error because his defense counsel stated he believed the instruction to be “a correct statement of the law,” and therefore declined to consider it. Defense counsel apparently lacked awareness of the error. Under these circumstances, the court could not conclude that counsel intentionally relinquished a known right on defendant’s behalf. Here, defense counsel’s error in declining to object to the jury instruction amounted to a forfeiture, not a waiver. The trial court committed plain error.

The conviction of first degree assault was reversed and the case was remanded for a new trial solely as to that charge. In all other respects, the judgment was affirmed.

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Colorado Court of Appeals: Electronically Stored Photograph Qualifies as “Physical Evidence” for Purposes of Tampering Statute

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

Order of Dismissal—Tampering with Physical Evidence—Electronic Documents are Physical Evidence.

Rieger had been charged in a separate case with numerous offenses in connection with an alleged assault on his girlfriend. While in jail, Rieger corresponded with his girlfriend through Telmate, an electronic messaging system that allows detainees to communicate with people outside the jail. Through Telmate, the girlfriend forwarded a picture to Rieger of bruises on her arms that he had allegedly caused during the assault. Rieger asked her to remove the picture because it could incriminate him. She removed the picture from the Telmate account.

A District Attorney’s investigator reviewed the Telmate account, which led to a charge in this separate case of solicitation to commit tampering with physical evidence. After a preliminary hearing, the district court dismissed the case, finding that the definition of physical evidence did not apply to the electronic record under C.R.S. § 8-8-610.

On appeal, the People contended that the district court improperly dismissed the case because it erred in interpreting the definition of “physical evidence” to exclude electronic documents. C.R.S. § 18-8-610(2) defines physical evidence as including articles, objects, documents, records, or other things of physical substance. The court of appeals concluded it is clear that electronically stored documents or information fall within the ambit of “physical evidence.” Further, electronically stored, digital images qualify as physical evidence for purposes of the tampering with physical evidence statute. It was therefore error to dismiss on the grounds that electronically stored images are not physical evidence.

Rieger argued that even if the photo was physical evidence, the dismissal should be affirmed because the electronic duplicate uploaded to Telmate is not physical evidence. The court perceived no reason why a duplicate of a photograph is not physical evidence for purposes of the tampering statute.

Rieger further argued that the removal of the image does not evince a specific intent to make the image unavailable at trial. Here, Rieger asked the girlfriend to remove the photograph because it could incriminate him. In addition, this evidence was being reviewed in relation to a probable cause determination after a preliminary hearing, which is a low standard to meet. The evidence was sufficient to induce a person of ordinary prudence and caution to entertain a reasonable belief that Rieger intended to deprive the prosecution of the ability to use the picture. Probable cause supported the charge of tampering with physical evidence. Therefore, the case should not have been dismissed.

The order of dismissal was reversed and the matter was remanded with directions to reinstate the case.

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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.

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Annual Update to Colorado Model Criminal Jury Instructions Released

On Tuesday, January 29, 2019, the Colorado State Judicial Branch announced the release of the Colorado Supreme Court’s annual update to the Model Jury Instructions for Criminal Trials. The update incorporates new legislation and published case law that has been announced since the last update. The update includes revisions to the instructions concerning complicity and judicial notice.

The Model Jury Instructions for Criminal Trials are available here for download in PDF and Microsoft Word format. For questions concerning the Model Jury Instructions for Criminal Trials, email the committee.

Colorado Court of Appeals: Defendant Charged with Criminal Mischief Entitled to Self-Defense Jury Instruction

On Thursday, January 24, 2019, the Colorado Court of Appeals issued its opinion in People v. Coahran.

Criminal Mischief—Affirmative Defense—Self-Defense—Use of Physical Force in Defense of Person.

Coahran and her ex-boyfriend had an argument during which Coahran kicked the ex-boyfriend’s car door, causing damages. Coahran was charged with criminal mischief. She argued in a pretrial conference that she had kicked the door in self-defense. The trial court determined that self-defense wasn’t available for her mischief charge because her use of physical force was directed at physical property rather than a person. Coahran was convicted of criminal mischief and ordered to pay restitution.

On appeal, Coahran asserted that the trial court improperly instructed the jury on self-defense. When an individual uses force to defend herself from the use or imminent use of unlawful physical force, she is allowed to take those actions that are reasonably necessary to do so. Therefore, a defendant charged with criminal mischief may be entitled to a jury instruction on self-defense as an affirmative defense under C.R.S. § 18-1-704(1) where a defendant is charged with a property crime, uses force to defend herself from the use or imminent use of unlawful physical force by another, and takes only those actions that are reasonably necessary to do so, whether those actions are upon the other person directly or indirectly. Here, according to Coahran’s testimony, the ex-boyfriend grabbed her wrist when she tried to walk away. She asked the ex-boyfriend twice to let her go, and he refused. Even though they were in a public parking lot, Coahran worried that the situation would escalate, so she kicked the car door in an effort to get away. Under these circumstances, there was sufficient evidence presented to support a self-defense instruction. Because the trial court didn’t properly instruct the jury on self-defense as an affirmative defense, the prosecution didn’t bear the burden of disproving self-defense, and Coahran was deprived of her right to possible acquittal on that ground. The court’s error was not harmless beyond a reasonable doubt.

Coahran also argued that the evidence was insufficient to support the damage amount necessary to sustain her conviction. The prosecution presented a repair shop estimate and the testimony of the ex-boyfriend and a police officer on the amount of damage to the car door. This evidence was sufficient to sustain Coahran’s conviction of felony mischief, and she may be retried on this charge.

The conviction was reversed, the restitution order was vacated, and the case was remanded for a new trial.

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Colorado Supreme Court: Detective’s Testimony About Odor of Metabolized Alcohol Improperly Admitted as Lay Testimony

The Colorado Supreme Court issued its opinion in People v. Kubuugu on Monday, January 28, 2019.

Witness Qualification—Expert Testimony— Harmless Error.

This case, which involves charges of driving under the influence and child abuse, required the court to determine whether the trial court erred by admitting expert testimony under the guise of lay testimony and whether such error was harmless. Here, the trial court allowed a police officer to testify at trial, without being qualified as an expert, about the ability to detect the smell of metabolized alcohol and that he could, based on that odor, opine about the volume of alcohol ingested and the timing of when it was consumed. The officer testified that this ability was learned through specialized training and years of experience as a police officer.

The court held that the police officer’s testimony about the odor of metabolized alcohol was expert testimony under the guise of lay testimony because an ordinary person would be unable to offer the same opinion. Admitting this evidence was not harmless because it was the only evidence that specifically refuted defendant’s testimony that he only began drinking alcohol after he had parked his car.

Accordingly, the court of appeals’ judgment was affirmed.

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Colorado Supreme Court Issues Three Rule Changes, Affecting Rules Governing Admission to Bar, Criminal Procedure Rules, and More

On Friday, January 25, 2019, the Colorado Supreme Court issued Rule Changes 2019(02), 2019(03), and 2019(04). All of the rule changes are effective immediately.

Rule Change 2019(02) amends Rule 5, “Preliminary Proceedings,” of the Colorado Rules of Criminal Procedure. The change specifies that current Armed Forces members or veterans may be entitled to receive mental health treatment, substance use treatment, or other services as a veteran.

Rule Change 2019(03) amends several rules in Rules Governing Admission to the Practice of Law in Colorado. Many of the changes involve a move of the provision on the mandatory professionalism course from Rule 203.2 to Rule 203.1, and amending several of the rules to update cross-references. Many other cross-references were updated in the rule change, and Rule 205.6, “Practice Pending Admission,” was updated to clarify the requirements of payment of fees. Rule 211.2(10) regarding reinstatement requirements was repealed.

Rule Change 2019(04) amends three of the Colorado Rules of Procedure Regarding Attorney Discipline and Disability Proceedings, Colorado Attorneys’ Fund for Client Protection, and Mandatory Continuing Legal Education and Judicial Education. Rule 250.7, “Compliance,” was amended to update a cross-reference and to delete the reinstatement requirement of taking the bar exam in subsection (10). Rule 251.31, “Access to Information Concerning Proceedings Under These Rules,” was amended to specify in subsection (r) that Regulation Counsel’s records regarding sexual harassment allegations will be available to complainant and respondent if they are not otherwise privileged. Rule 252.5, “Composition and Officers of the Board,” was completely repealed and reenacted.

For redlines and clean versions of Rule Changes 2019(02), 2019(03), and 2019(04), click here. For all of the Colorado Supreme Court’s adopted and proposed rule changes, click here.

Tenth Circuit: Hobbs Act Robbery is “Crime of Violence” Because Force Element Can Only be Satisfied with Violent Force

The Tenth Circuit Court of Appeals issued its opinion in United States v. Jefferson on Friday, December 28, 2018.

Defendant Jefferson was convicted of five counts of Hobbs Act robbery under 18 U.S.C. § 1951, as well as two counts for brandishing a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c)(3)(A).

On appeal, Jefferson argued that the district court erred when it determined that robbery under § 1951 qualifies as a crime of violence under § 924(c)(3)(A) and that even if it did, the judge erred in directing a verdict on that element and the issue should have been submitted to a jury. Further, the district court erred when it refused to instruct the jury that “force” in § 1951 means “violent force,” and the prosecutor’s closing rebuttal arguments amounted to prosecutorial misconduct and violated his due process rights.

The Tenth Circuit affirmed the district court, and held that Hobbs Act robbery categorically qualifies as a “crime of violence,” and that both the district court’s error in failing to instruct the jury that “force” in § 1951 means “violent force” and that the prosecutor’s alleged error during closing rebuttal arguments were harmless beyond a reasonable doubt. 

On the issue of whether a crime fits the § 924(c) definition of a “crime of violence,” the Tenth Circuit reiterated its holding in United States v. Morgan, citing that such issue requires an examination of the legal elements of a crime, not an exploration of the underlying facts, and is therefore not a question of fact for a jury, but a question of law for the judge. Therefore, the judge did not err and in fact was obligated not to submit the issue to the jury.

The Tenth Circuit next considered whether Hobbs Act robbery is a “crime of violence” under § 924(c)(3)(A). Section 924(c) calls for increased penalties if a firearm is used or carried “during and in relation to any crime of violence” and defines “crime of violence” as a felony offense having “as an element the use, attempted use, or threatened use of physical force against the person or property of another.” 18 U.S.C. § 924(c)(3)(A). In a Hobbs Act robbery, one element the government must prove is the use of actual or threatened force, violence, or fear of injury.

Jefferson argued Hobbs Act robbery is not a “crime of violence” because force is a means of committing the crime, not an element of the crime. The Tenth Circuit agreed that force is a means of committing the crime, but disagreed that this determination ended the inquiry as to whether a statute “has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” Instead, the determination of whether statutory alternatives are elements or means is only important in deciding whether to apply the pure categorical approach or the modified categorical approach. Because the Hobbs Act statute alternatives are means, the pure categorical approach applies. Therefore, the distinction between means and elements only matters if one of the ways to commit Hobbs Act robbery did not involve force, so that a juror could find a defendant guilty irrespective of whether he used force to commit the crime. The Tenth Circuit agreed with the proposition that placing one in fear of injury requires the threatened use of physical force. The Circuit further reasoned that because violence is defined as “the use of physical force so as to injury, abuse, damage, or destroy,” each of the alternatives requires the threatened use of force, Hobbs Act robbery is categorically a “crime of violence” under § 924(c)(3)(A).

On the issue of whether the district court erred in its jury instructions, Jefferson argued that the jury should have been instructed that “force” in Hobbs Act robbery means “violent force.” The Tenth Circuit agreed. However, the error was found to be harmless because the evidence provided uncontroverted proof of “violent force” being used in each robbery. In the first robbery, Jefferson caused actual injury to a person. In the second and third robbery, Jefferson had engaged in a “tug-of-war” with the convenience store clerk and the store’s front door, which had the capacity to cause physical injury or pain to the store clerk. In the fourth and fifth robbery, surveillance videos showed Jefferson pointing a gun to the clerk’s head from a short distance away. Therefore, the district court’s error in failing to instruct the jury that “force” in Hobbs Act robbery means “violent force” was harmless beyond a reasonable doubt.

On the final issue, Jefferson argued that the prosecutor’s rebuttal closing argument that the “possibility that the gun is fake is not something that [the government has] to overcome” improperly shifted the burden of proof to Jefferson. The Tenth Circuit disagreed, finding that the challenged statements may have misstated the law as to the government’s burden of proof, but the alleged error was harmless because the jury had been correctly instructed and reminded of the government’s burden after closing arguments. Further, the extent and role of the misconduct was minimal—the challenged statements constituted only two sentences of the governments lengthy closing argument and a 4-day trial, and while the prosecutor may have arguably misstated the law, she corrected herself by stating “we do not have to disprove theoretical possibilities that a gun is fake and not real.” Finally, the evidence of guilt was substantial. In light of this, the Tenth Circuit concluded that the alleged error was harmless beyond a reasonable doubt.

Colorado Supreme Court: In Double Jeopardy Realm, Merge of Multiplicitous Convictions Has Same Effect as Vacating All but One

The Colorado Supreme Court issued its opinion in People v. Wood on Tuesday, January 22, 2019.

Double Jeopardy—Multiplicitous Convictions—Sentencing and Punishment—Amendment and Correction.

The supreme court clarified that when a mittimus provides that multiplicitous convictions merge, a defendant is afforded the protection to which he or she is entitled under the double jeopardy clause just the same as when a mittimus indicates that all but one of the multiplicitous convictions are vacated. In the double jeopardy realm, the merger of multiplicitous convictions has the same effect as vacating all but one of them.

Here, defendant’s mittimus accurately documented the state district court’s decision to merge his two murder convictions and impose a single life sentence on the resulting merged conviction. But, in resolving defendant’s habeas corpus petition, the U.S. Court of Appeals for the Tenth Circuit misread the mittimus as containing two murder convictions for the same killing and found a double jeopardy defect. Merely because defendant’s mittimus merged the multiplicitous murder convictions, rather than expressly stating that one of them was vacated, does not mean that his double jeopardy rights were violated.

Even if the Tenth Circuit correctly understood the mittimus, any error was clerical in nature. Therefore, the proper remedy was to simply correct the mittimus pursuant to Rule 36 of the Colorado Rules of Criminal Procedure.

Because a division of the court of appeals assumed that the Tenth Circuit’s reading of the mittimus was accurate and then failed to recognize that any error in the mittimus was subject to correction under Rule 36, the court reversed the division’s judgment and vacated its opinion. However, given that the district court recently amended the mittimus to expressly state that one of the multiplicitous murder convictions was vacated, the court did not remand this matter.

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