December 10, 2018

Colorado Supreme Court: Admission of “Overkill” Theory Without Specific Findings Was Error

The Colorado Supreme Court issued its opinion in Ruibal v. People on Monday, December 3, 2018. 

Ruibal petitioned for review of the court of appeals’ judgment affirming hisconviction for second degree murder. Over defense objection and without taking evidence or making any findings as to reliability, the trial court admitted expert testimony to the effect that the victim’s injuries in this case demonstrated “overkill,” a formal term describing multiple injuries focused on one area of the victim’s body, which includes blows about the head and face that are numerous and extensive, indicating that the assailant likely had either a real or perceived emotional attachment to the victim. Relying on case law from several other jurisdictions, a treatise dealing with related kinds of injuries, and the witness’s own experience with autopsies involving similar injuries, the court of appeals concluded that the expert opinion was sufficiently reliable and that the trial court had implicitly found as much by granting the prosecution’s proffer.
The supreme court holds that because the trial court made no specific finding that the theory of “overkill” espoused by the witness was reliable, nor was the reliability of that theory either supported by evidence in the record or already accepted in this jurisdiction, its admission amounted to an abuse of discretion. Because there was, however, overwhelming evidence of the defendant’s guilt quite apart from the expert testimony, the error was necessarily harmless. Accordingly, the judgment of the court of appeals is affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Language in Fee Agreement Insufficient to Terminate Counsel’s Representation

The Colorado Court of Appeals issued its opinion in People v. Lancaster on Thursday, November 29, 2018.

Criminal ProcedureConstitutional LawSixth AmendmentNotice of AppealIneffective Assistance of CounselCrim. P. 44(e)Termination of Representation.

Newell represented Lancaster at a criminal trial. The fee agreement between Newell and Lancaster included a provision that representation terminated at the conclusion of trial. A jury found Lancaster guilty on six of seven counts and he was sentenced in 2007. Following trial, Newell informed Lancaster that he would not represent him on appeal, but Newell did not withdraw from the representation. Thereafter, Lancaster did not timely file a notice of appeal. In 2010, Lancaster filed a pro se Crim. P. 35(c) motion alleging that Newell had been constitutionally ineffective by failing to file a notice of appeal. The motion was denied after a hearing.

On appeal, Lancaster contended that Newell was constitutionally ineffective in failing to file a notice of appeal on his behalf. Trial counsel’s representation of a criminal defendant terminates only as provided under Crim. P. 44(e), notwithstanding the fee agreement; therefore, trial counsel’s duty to perfect the defendant’s appeal is not discharged until the representation terminates pursuant to Crim. P. 44(e). Here, Newell’s failure to either file a notice of appeal on Lancaster’s behalf or withdraw pursuant to Crim. P. 44(d) and secure the appointment of the public defender to represent Lancaster on direct appeal constituted ineffective assistance of trial counsel. Because the ineffective assistance of trial counsel deprived Lancaster of his right to direct appeal of his conviction, he is entitled to pursue a direct appeal out of time pursuant to C.A.R. 4(b).

The order was reversed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Police Officer’s Observation of Vehicle Weaving in Lane Sufficient to Create Reasonable Suspicion of DUI

The Colorado Court of Appeals issued its opinion in People v. Johnston on Thursday, November 29, 2018.

Constitutional Law—Fourth Amendment—Search and Seizure—Motor Vehicles.

A sheriff’s deputy noticed defendant’s car continuously weaving within the right-hand lane while traveling on Interstate 70. The deputy followed defendant for five to six miles before stopping him for suspicion of driving under the influence of alcohol. During the stop, the officer noticed signs of intoxication, administered roadside tests, and arrested defendant. Defendant was charged with aggravated driving after revocation prohibited and driving under the influence (DUI). Defendant filed a motion to suppress, which the trial court denied. A jury found defendant guilty of aggravated driving after revocation prohibited and the lesser included offense of driving while ability impaired.

On appeal, defendant argued that the trial court erred by denying his motion to suppress. He argued that his weaving within a single lane, without more, did not create a reasonable suspicion of DUI. The Fourth Amendment does not require that a police officer see the defendant commit a traffic violation before stopping him, and repeated intra-lane weaving can create reasonable suspicion of impaired operation. Whether there exists reasonable suspicion of intoxicated driving is based on the totality of the circumstances. Here, under the totality of the circumstances, the police officer’s observation of defendant’s vehicle weaving continuously within its own lane for over five miles was sufficient to create a reasonable suspicion that the driver was intoxicated. Therefore, the trial court did not err in denying defendant’s motion to suppress.

The judgment was affirmed.

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: Trial Court May Only Increase Level of Distribution of Schedule II Substance Felony Based on Equal or More Severe Felony

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

Criminal Law—Uniform Controlled Substances Act—Sentence Enhancer—Distribution—Conspiracy to Distribute—Prior Conviction—Habitual Criminal—Double Jeopardy Clause.

A jury convicted defendant of distribution and conspiracy to distribute a schedule II controlled substance. The trial court subsequently found that defendant had been convicted in 2007 of distributing a controlled substance. Based on this finding, it enhanced the distribution of a controlled substance conviction from a class 3 felony to a class 2 felony and found defendant was a habitual criminal. The court then sentenced defendant to 24 years in prison for the distribution count. Applying the habitual criminal finding, the court increased the sentence on this count to 96 years in prison. On the conspiracy count, the court sentenced defendant to 12 years in prison for that class 3 felony. Again applying the habitual criminal finding, the court increased the sentence on this count to 48 years in prison, to be served concurrently with the sentence on the distribution count.

On appeal, defendant argued that the 2007 conviction did not fit the statutory definition of a conviction that the trial court could use to enhance the distribution count from a class 3 felony to a class 2 felony. Here, the mittimus and amended mittimus in the 2007 case contain a mistake: they state that defendant pleaded guilty to a class 3 felony charge, but documents in the record from the 2007 case clearly show that defendant pleaded guilty to a class 4 felony. Pursuant to C.R.S. § 18-18-405(2)(a), a trial court may only increase the level of a class 3 distribution of a schedule II controlled substance felony based on an equal or more severe felony. Therefore, the trial court erred when it relied on defendant’s prior conviction to enhance his class 3 distribution felony to a class 2 felony.

Defendant also argued that one of the habitual criminal counts, which was based on the 2007 conviction, suffered from the same statutory defect. But any error involving the 2007 conviction was harmless because vacating one of defendant’s five habitual criminal counts would have no effect on his sentence, which only requires three prior felony convictions.

Defendant further contended that his convictions and sentences on both the distribution and conspiracy counts based on the same quantum of drugs violated the Double Jeopardy Clause. The prosecution conceded this contention, noting that, even under plain error review, the trial court obviously and substantially violated defendant’s right to avoid double jeopardy.

The enhancement of defendant’s class 3 felony distribution conviction and prison sentence for that conviction were reversed. The conviction and sentence for conspiracy to distribute a schedule II controlled substance were also reversed, and the case was remanded with directions.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Elements of Convicted Offense are Blakely-Compliant Facts Because Jury Found Them Beyond Reasonable Doubt

The Colorado Supreme Court issued its opinion in Mountjoy v. People on Monday, November 19, 2018.

Aggravated Sentences—Due Process—Jury Trial.

This case required the supreme court to determine whether the trial court’s decision to find discretionary aggravation was compliant with Blakely v. Washington, 542 U.S. 296 (2004). The trial court relied on a jury finding beyond a reasonable doubt as to elements of offenses for which there were convictions to aggravate defendant’s sentences for concurrent convictions. The court held that elements of an offense for which there is a conviction are Blakely-compliant facts because they were found by a jury beyond a reasonable doubt. Therefore, a trial court can rely on such facts to aggravate a sentence for a concurrent conviction. Accordingly, the court of appeals’ judgment was affirmed on other grounds.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Plain Language of Restitution Statute Does Not Prohibit Judicial Branch’s Monthly Imposition of Interest

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

Criminal Law—Restitution—Interest.

A jury convicted defendant of second-degree assault. The trial court sentenced him to prison and ordered him to pay $19,855.91 in restitution. In accordance with the restitution statute in effect at the time, the restitution order in this case specifically noted that interest would accrue at 12% per annum from the date of order’s entry. Defendant later received a letter from the district court clerk, which stated that he had an outstanding restitution balance of $19,583.98 and that “interest will be added at 1% per month of the current balance . . . until the original restitution amount is paid in full.” Defendant contested the monthly interest charge, which was denied by the trial court.

On appeal, defendant contended that the phrase “per annum” in the restitution statute is unambiguous and means that interest can only be collected once a year. He argued the district court erred by allowing the clerk to charge monthly interest on the outstanding restitution amount. However, the term per annum is not defined in the statute and is thus ambiguous. Based on legislative intent, case law from other jurisdictions, and standard methods of calculating interest, the court of appeals determined that the statute does not limit the payment of interest to an annual basis. Therefore, the Judicial Department did not violate the statute.

The order was affirmed.

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: Supreme Court’s Complicity Reasoning in Rosemund Does Not Apply to Colorado’s Complicity Statute

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

Criminal Law—Complicity—Jury Instructions—Demonstrative Evidence—Partial Reconstruction—Prosecutorial Misconduct.

Brown agreed to sell her friend Goggin five pounds of marijuana, which he intended to sell to Sandoval. Brown delivered the marijuana to Goggin and his girlfriend. Sandoval arrived, accompanied by his cousin Palacios. Sandoval, Palacios, and Goggin each had guns, and after a struggle Goggin was fatally shot. Palacios grabbed the marijuana and ran to the vehicle outside where Sandoval was waiting. Sandoval was found guilty of one count of murder in the first degree, one count of aggravated robbery, two counts of accessory to crime, and one count of felony menacing.

On appeal, Sandoval contended that the trial court violated his constitutional right to due process when it declined to instruct the jury in accordance with Rosemond v. United States, 572 U.S. 65 (2014), that an alleged felony murder complicitor must know in advance of the occurrence of the predicate felony that another participant intends to commit. Sandoval alleged that, because he was unaware of his cousin’s intent to rob and kill Goggin before the crimes occurred, he was not guilty of robbery and felony murder. However, Rosemond relied on language in the federal aiding and abetting statute that is not present in Colorado’s complicity statute; thus Rosemond does not apply to Colorado’s complicity statute, and Sandoval’s due process rights were not violated.

Sandoval also asserted that the trial court violated his constitutional rights to a fair trial and impartial jury when it allowed the prosecutor to use a partial reconstruction of the crime scene as a demonstrative aid to assist witnesses in explaining their testimony. Here, (1) the partial reconstruction was authenticated by the prosecution’s criminalist; (2) the demonstrative aid was relevant because it assisted the jury in understanding Brown’s testimony; and (3) though the prosecution conceded that there were discrepancies in the partial reconstruction, those discrepancies were disclosed to the jury and Sandoval had an opportunity to cross-examine the prosecution’s criminalist about them. Thus, the trial court did not abuse its discretion in determining that the reconstruction was a fair and accurate representation of the crime scene. Further, the trial court did not abuse its discretion in finding that the probative value of the partial reconstruction was not substantially outweighed by its danger of unfair prejudice. Sandoval’s rights were not violated.

Sandoval further alleged that the prosecutor committed misconduct by misstating the law of complicity as well as key evidence to undermine the defense. The prosecutor’s statements were fairly based on the evidence presented and the inferences drawn were not inappropriate. There was not improper conduct that would warrant reversal.

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Child Abuse Resulting in Death is Lesser Included Offense of Child Abuse Murder

The Colorado Supreme Court issued its opinion in Friend v. People on Tuesday, November 13, 2018.

Plain Error Review—Double Jeopardy—Merger—Lesser Included Offenses.

This case principally presents two double jeopardy questions: (1) whether the child abuse statute, C.R.S. § 18-6-401, prescribes more than one unit of prosecution and whether the prosecution presented sufficient evidence to establish that defendant committed more than one crime of child abuse; and (2) whether child abuse resulting in death under C.R.S. § 18-6-401(1)(a) and (7)(a)(1) is a lesser included offense of first-degree murder of a child under C.R.S. § 18-3-102(1)(f) (“child abuse murder”).

As to the first double jeopardy question presented here, applying the principles set forth in Schneider v. People, 382 P.3d 835, 839 (Colo. 2016), and People v. Abiodun, 111 P.3d 462, 466–68 (Colo. 2005), the supreme court concluded that the division below correctly determined that C.R.S. § 18-6-401 creates one crime of child abuse that can be committed in alternative ways. The question thus becomes whether the prosecution proved separate counts of child abuse. The court again agreed with the division and concluded that the prosecution did not do so, and thus each of the child abuse convictions must merge into one conviction for child abuse resulting in death.

As to the second double jeopardy question at issue, the court concluded for two reasons that the division erred in determining that defendant’s merged child abuse resulting in death conviction does not merge into his child abuse murder conviction. First, the plain language of the applicable statutes shows that “[w]hen a person knowingly causes the death of a child who has not yet attained twelve years of age and the person committing the offense is one in a position of trust with respect to the child,” that person is to be convicted of child abuse murder and not child abuse resulting in death. C.R.S. § 18-6-401(7)(c). Second, under the clarified principles set forth in People v. Rock, 402 P.3d 472 (Colo. 2017), and Page v. People, 402 P.3d 468 (Colo. 2017), which were announced after the division’s decision in this case, child abuse resulting in death is a lesser included offense of child abuse murder.

Having determined that the trial court erred in not merging the various counts in this case, the question remained whether these errors were plain. The court concluded that they were and therefore affirmed in part and reversed in part the division’s judgment.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Formal Advisement of Right to Be Present Not Prerequisite to Valid Waiver of Right

The Colorado Supreme Court issued its opinion in People v. Janis on Tuesday, November 13, 2018.

Right to Be Present—Waiver—Formal Advisements.

At trial, defendant, who was in custody, asked through her counsel to leave the courtroom during the victim’s testimony. She claimed that the testimony might trigger her post-traumatic stress disorder. Without first advising her of her right to be present or inquiring with her directly about her desire to leave, the trial court granted defendant’s request. Defendant asserted on appeal that this constituted reversible error. A division of the court of appeals agreed.

The supreme court held that a formal advisement of the right to be present at trial is not a prerequisite to a valid waiver of that right, even when a defendant is in custody. The touchstone is whether, under the totality of the circumstances, the waiver was knowing, intelligent, and voluntary. In this case, the court concluded that defendant’s waiver was knowing, intelligent, and voluntary. Accordingly, the court reversed the court of appeals’ judgment and remanded the case to address any previously unresolved issues.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Child Sexual Assault Victim Cannot Legally Consent to Use of Force During Assault

The Colorado Court of Appeals issued its opinion in People v. Hodge on Thursday, November 1, 2018.

Criminal Law—Sexual Assault—Child—Use of Force Aggravator—Consent.

The prosecution charged Hodge with three counts of sexual assault on a child and alleged that he used force against the victim to accomplish the sexual contact. The use of force aggravator made each charge a class 3 felony under C.R.S. § 18-3-405(1) and (2)(a). The district court dismissed the force aggravators based on its finding that because the 14-year-old victim had consented to the force used (restraints), the prosecution did not establish probable cause for the use of force at the preliminary hearing.

On appeal, the prosecution argued that the district court erred in dismissing the use of force aggravators. A child sexual assault victim cannot legally consent to the use of force during an unlawful sexual act. Therefore, the district court erred in finding that the victim’s agreement to the use of restraints did not constitute the use of force.

The order dismissing the use of force aggravator was reversed, and the case was remanded for reinstatement of the original charges as class 3 felony sexual assault on a child.

Summary provided courtesy of Colorado Lawyer.