July 22, 2019

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

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

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

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

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Claims Raised in Parole Board Appeal Are Not Successive Under Crim. P. 35

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

Postconviction Remedies—Parole Revocation Appeal—Successive Claims

Defendant pleaded guilty to sexual assault and two misdemeanors, third degree assault and menacing, and was sentenced. He was later granted parole. Defendant’s parole was subsequently revoked and he was remanded to the custody of the Department of Corrections for 540 days. The Appellate Board of the Colorado State Board of Parole (the parole board) denied his appeal of that decision. Defendant then filed a Crim. P. 35(c) motion in which he asserted numerous claims relating to his parole revocation. The postconviction court denied the motion without a hearing, finding the challenges raised to the parole board were not properly brought pursuant to Crim. P. 35(c).

On appeal, defendant argued that the parole board improperly refused to consider him for parole within 180 days after his parole was revoked, as required by C.R.S. § 17-2-201(14). Rule 35 does not encompass this type of claim and Colorado appellate courts have consistently declined to review such claims under that rule. Thus, the postconviction court properly denied this claim.

Defendant next argued that the hearing officer was biased and had prejudged his appeal. This challenge is aimed at the lawfulness of the revocation and is explicitly governed by Rule 35(c)(2)(VII) and is cognizable. The postconviction court concluded that defendant’s appeal to the parole board had the same preclusive effect that a direct appeal would have had. But the parole statute explicitly provides for judicial review of parole revocation under C.R.S. § 18-1-410(1)(h), so defendant’s claim is not barred as successive. A Rule 35 motion may be denied without a hearing if the record clearly establishes that the defendant’s allegations are without merit and do not warrant relief. A defendant is not required to set forth evidentiary support for his allegations in a Rule 35 motion, but must only assert facts that if true would provide a basis for relief. Here, defendant asserted that the hearing officer prejudged his case by partially completing electronically a preprinted disposition form and printing it five days before the hearing. This allegation cannot be resolved without testimony from the hearing officer.

Defendant also asserted that he was denied the opportunity to present witnesses and evidence. He identified witnesses and the general subject of their testimony in exhibits attached to his postconviction motion. Defendant also alleged that he was denied the benefit of potentially exculpatory evidence. He claimed law enforcement officials destroyed the cell phone that contained text messages that would have corroborated  his claim that his work supervisor had provided false information, which led to his termination from employment and, in turn, to his parole violation. If these allegations were established after a hearing, defendant’s parole revocation may have been unlawful. Defendant is entitled to a hearing and the appointment of counsel.   

The order was affirmed as to the denial of defendant’s challenge to the parole board’s failure to provide him a new parole hearing within 180 days. The remainder of the order was reversed and the matter was remanded with instructions to appoint counsel for defendant and to conduct a hearing.

Summary provided courtesy of Colorado Lawyer.

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

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

Equal Protection—Felony Strangulation—Charging Options.

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

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

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

The order was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Involuntary Short-term Mental Health Commitment Is Not Equivalent to Court Order

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

Mental Health—Certification for Short-Term Treatment—Physician—National Instant Criminal Background Check System—Firearm Prohibitions—Court Order.

Ray voluntarily sought mental health treatment from a hospital. After he was admitted, a physician certified Ray for involuntary short-term mental health treatment under C.R.S. § 27-65-107, finding that he was a danger to himself or others and would discontinue mental health treatment absent such a certification. That certification caused Colorado officials to report Ray to the National Instant Criminal Background Check System (NICS) as a person subject to federal firearm prohibitions. The certifying physician terminated the mental health certification days after it was entered, and Ray was discharged from the hospital. Ray petitioned the probate court for removal from the NICS. The probate court denied the petition.

On appeal, Ray argued that because he was involuntarily certified by a physician, rather than a court, Colorado officials should not have reported his certification to the NICS. Colorado law requires certain persons and entities to make NICS reports for persons with respect to whom a court has entered an order for involuntary certification for short-term mental health treatment. The plain meaning of the term “court order” does not encompass certification by a professional person. Therefore, the certification made by the physician does not meet the plain definition of a court order.

The order was reversed and the case was remanded for the probate court and the parties to take reasonable steps to cause any record of Ray’s certification submitted by them under CRS § 13-9-123(1)(c) to be rescinded.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Suddenly Hitting Officer’s Motorcycle Does Not Constitute “Threat”

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

Criminal Law—First Degree Assault of a Peace Officer—Threaten—Prior Acts Evidence—Merger—Lesser Included Offense—Prosecutorial Misconduct.

A motorcycle patrol officer observed defendant speeding and pulled him over. The officer parked about 12 feet behind defendant’s vehicle. As the officer prepared to dismount from his bike, defendant suddenly reversed his vehicle and drove into the motorcycle, pushing the bike backward and causing the officer to fall and sustain minor injuries. Defendant left the scene and broke into an unoccupied apartment, where he damaged the tenant’s belongings and set fire to contraband he was carrying. Defendant was charged with 15 felony, misdemeanor, and traffic offenses. As relevant here, the jury convicted him of first degree assault of a peace officer, two counts of second degree assault, vehicular eluding, first degree criminal trespass, and second degree burglary.

On appeal, defendant argued that the evidence was insufficient to support his conviction for first degree assault because the prosecution failed to prove he used the vehicle to threaten the officer. “Threaten” means to express a purpose or intent to cause harm or injury. To obtain a conviction for first degree assault of a peace officer, the prosecution had to prove that, by use of a deadly weapon, defendant expressed a purpose or intent to cause injury or harm to the officer or the officer’s property. Here, the act of suddenly hitting the officer’s motorcycle, without more, did not constitute a threat. Accordingly, the evidence was insufficient to sustain the first degree assault conviction.

Next, defendant contended that the trial court erred in admitting evidence under CRE 404(b) of his prior assault of a peace officer. The prior and current incidents were similar enough that the prior act evidence was admissible for the nonpropensity purpose of rebutting defendant’s defense that his conduct was accidental rather than intentional. Thus, the evidence was relevant to establish defendant’s intent to commit assault. The district court did not abuse its discretion.
Defendant also contended that his assault and eluding convictions should be reversed due to prosecutorial misconduct during closing argument. However, the prosecutor did not err in commenting on the strength of defense counsel’s arguments and using the facts in evidence to support his argument. Although the prosecutor improperly appealed to the emotions of the jury and misstated one piece of evidence during his closing argument, the two instances of misconduct were not egregious and did not warrant reversal.

Defendant further contended, the People conceded, and the court of appeals agreed that his two convictions for second degree assault must merge for multiplicity.

Lastly, defendant contended that first degree criminal trespass is a lesser included offense of second degree burglary and therefore these convictions must merge. However, the supreme court has expressly held that first degree criminal trespass is not a lesser included offense of second degree burglary.

The case was remanded to (1) vacate the conviction and sentence for first degree assault and for entry of a judgment of acquittal on that charge; (2) merge the convictions for second degree assault and vacate the conviction entered under C.R.S. § 18-3-203(1)(c); and (3) resentence defendant. The judgment was otherwise affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Students and Teachers in Youth Corrections Classroom “Members of the Public” for Purposes of Public Indecency Statute

The Colorado Court of Appeals issued its opinion in People in Interest of D.C. on Thursday, February 21, 2019.

Juvenile Law—Delinquency—Public Indecency—Members of the Public.

D.C. and E.L. were committed to the Division of Youth Corrections (DYC). During their DYC science class, D.C. exposed one of his testicles to E.L. As a result, D.C. was adjudicated delinquent for committing an act that, if committed by an adult, would constitute public indecency.

On appeal, D.C. argued that insufficient evidence supported the adjudication because the prosecution failed to establish that the DYC classroom in which D.C. exposed his testicle was a “public place” under the public indecency statute.A person commits public indecency by knowingly exposing his genitals to the view of another under circumstances that are likely to cause affront or alarm “in a public place or [in a place] where the conduct may reasonably be expected to be viewed by members of the public.” Here, other students and a teacher were present when D.C. exposed himself. Therefore, sufficient evidence established that D.C. exposed his genitals in a public place under the indecency statute.

The adjudication was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Admission of Blind Expert Testimony Not Harmless Where Issues Irrelevant to Facts of Case

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

Criminal Law—Evidence—“Blind” Expert Testimony—Relevance—Prejudice—Unanimity.

Cooper and L.K. were in an intimate relationship and lived together. They had a physical altercation that resulted in Cooper being charged with, among other things, third degree assault and harassment. At trial, over Cooper’s repeated objections, the prosecution presented extensive testimony from a “blind” expert witness about the characteristics of domestic violence relationships and the “power and control wheel,” a tool developed purportedly to explain how an abusive partner can use power and control to manipulate a relationship. A jury convicted Cooper of third degree assault and harassment.

On appeal, Cooper asserted that the trial court erred in admitting the blind expert witness testimony both on reliability and relevance grounds. Expert testimony should be admitted only when the expert’s opinions will help the factfinder. A blind or “cold” expert knows little or nothing about the facts of a particular case, often has not met the victim, and has not performed any forensic or psychological examination of the victim (or the defendant). Here, no evidence presented to the jury proved or suggested that before the charged incident Cooper had assaulted L.K., had physically or non-physically abused L.K., or had exercised improper control over L.K. physically, emotionally, or economically. The only way the jury could have found there was a pattern of abuse was from the testimony of the blind expert, who purportedly knew nothing about the facts of the case. There was no record evidence that related to the vast majority of the blind expert’s opinions, and the trial court abused its discretion in admitting this testimony. This error was not harmless.

Cooper also contended that the trial court erred in not instructing the jury on the requirement of unanimity. Here, the evidence “does not present a reasonable likelihood that jurors may disagree on which acts the defendant committed” regarding the third degree assault charge. Therefore, Cooper was not entitled to a unanimity instruction.
The judgment was reversed and the case was remanded for a new trial.

Summary provided courtesy of Colorado Lawyer.

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.

Summary provided courtesy of Colorado Lawyer.

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.

Summary provided courtesy of Colorado Lawyer.

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.

Summary provided courtesy of  Colorado Lawyer.

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.

Summary provided courtesy of Colorado Lawyer.