May 23, 2019

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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Colorado Court of Appeals: Governor’s Order Did Not Expire at End of His Term

The Colorado Court of Appeals issued its opinion in People v. Salgado on Thursday, January 10, 2019.

Powers and Duties of Attorney General—Executive Order—Medicaid Fraud.

In 1987, then-Governor Romer promulgated an executive order (the 1987 Executive Order) requiring the Attorney General, through the Medicaid Fraud Control Unit (MFCU), to investigate and prosecute Medicaid fraud and patient abuse cases. The 1987 Executive Order has never been repealed, rescinded, or modified. In December 2017, the MFCU filed a felony charge involving neglect of an at-risk adult against Salgado, an employee of an assisted living facility. The Jefferson County District Attorney filed a notice asserting that the Attorney General lacked legal authority or jurisdiction to file and prosecute the case. The district court found that Governor Romer had the authority to require the Attorney General to investigate and prosecute Medicaid fraud and patient abuse cases during his terms as governor but that reliance on the 1987 Executive Order to confer authority in 2018 would be an unconstitutional exercise of legislative power by the executive branch. It further found that a former governor cannot require the current Attorney General to act. The district court then dismissed the charge.

On appeal, the Attorney General argued that the district court incorrectly found that the 1987 Executive Order had expired at the conclusion of Governor’s Romer’s term. Absent a clear limitation on the effective lifespan of an executive order, or a limitation in the terms of the executive order itself, an executive order remains in effect until modified, rescinded, or superseded, and it does not expire simply because the issuing governor is no longer in office. Further, at the time it was promulgated, the 1987 Executive Order was not an act of legislation, and for 30 years the General Assembly has tacitly permitted and funded the MFCU’s operation. Therefore, the 1987 Executive Order directs, and therefore properly authorizes, the Attorney General in his or her own capacity to prosecute cases of Medicaid fraud and patient abuse in Colorado.

The judgment was reversed and the case was remanded for the district court to reinstate the charge against Salgado.

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Colorado Court of Appeals: Speedy Trial Rights Violated if Juvenile Not Brought to Trial Within 60 Days of No-Bond Order

The Colorado Court of Appeals issued its opinion in People in Interest of G.S.S. on Thursday, January 10, 2019.

Children’s Code— Juvenile Court—Delinquency—No-Bond Order—Speedy Trial.

G.S.S. was arrested and charged with two delinquent acts for threatening to shoot students at his middle school. He was placed in secure detention. At the initial detention hearing on May 2, 2017, the district court ordered that G.S.S. be held without bond. Numerous hearings were held over the next several months regarding the status of G.S.S.’s release from detention. On August 9, 2017 defense counsel moved to dismiss the case for violation of G.S.S.’s statutory speedy trial rights. The district court granted the motion.

On appeal, the prosecution argued that G.S.S.’s requests for continuances waived or extended the speedy trial period, and if there was a speedy trial violation, dismissal is not the proper remedy. Under CRS § 19-2-509(4)(b), a court is required to bring a juvenile to trial within 60 days of a no-bond order, so G.S.S. was entitled to a trial within 60 days of May 2, 2017, or July 1, 2017. The court did not hold a trial within that 60-day limit. In addition, counsel’s actions on behalf of G.S.S. were designed to get G.S.S. released, not to delay a trial date. Thus, G.S.S.’s requested continuances did not waive, toll, or extend the speedy trial period. Accordingly, the district court violated G.S.S.’s statutory speedy trial rights. Further, the court of appeals discerned that it was the legislature’s intent to require dismissal when a speedy trial violation occurs, regardless of whether the speedy trial period was established by a no-bond hold order or entry of a not guilty plea. Therefore, the district court did not err by dismissing G.S.S.’s case.

The order was affirmed.

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Colorado Court of Appeals: Police Officer Authorized to Request Suspect to Complete Drug Test Even If Suspect Already Completed Alcohol Test

The Colorado Court of Appeals issued its opinion in People v. Fuerst on Thursday, January 10, 2019.

Driving Under the Influence—Driving While Ability Impaired—Express Consent Statute—Breath and Blood Tests—Confrontation Rights.

Defendant backed his car into a pickup truck. A bystander told a police officer on the scene that after the accident, defendant asked her if she wanted his beer because he needed to hide it. Defendant performed several roadside sobriety tests. Based on his performance on these tests and the bystander’s statement, the officer believed defendant was under the influence of alcohol. Defendant then elected to take a breath alcohol test, which showed that defendant’s blood alcohol content was zero. The officer then asked defendant to take a blood test to test for drugs. Defendant initially refused, but after an officer told him his license would be revoked if he refused, defendant consented to the test. The blood test revealed 101 nanograms of Alprazolam, which is near the upper limit of the therapeutic range.

Before trial, defendant moved to suppress the blood test results. The trial court denied the motion. At trial, the jury found defendant not guilty of driving under the influence but found him guilty of driving while ability impaired and unsafe backing.

On appeal, defendant contended that the trial court erred in denying his motion to suppress the blood test because the officer violated his constitutional rights by requiring him to complete the blood test after he had already selected and completed the breath test. Defendant argued that the Expressed Consent Statute doesn’t authorize an officer to request a drug test if the officer has already requested, and the suspect has completed, an alcohol test. Under the Expressed Consent Statute, if a police officer has probable cause to believe that a driver is under the influence of alcohol or drugs, the officer may request either the applicable alcohol tests, the applicable drug tests, or both, and the driver is obligated to complete them. The statute doesn’t say an officer can only do one or the other. Accordingly, the procedure the officer employed didn’t violate the Expressed Consent Statute. Because defendant’s statutory claim fails, his constitutional claim necessarily fails. The trial court did not err in denying the motion to suppress.

Defendant also contended that the trial court violated his confrontation rights and C.R.S. § 16-3-309(5) by admitting a laboratory report containing his blood test results. He contended that the witness who testified about the report and the blood test results wasn’t sufficiently involved in the process of testing the blood sample and certifying the results. Here, the Colorado Bureau of Investigation (CBI) toxicologist, who was qualified as an expert in forensic science and forensic toxicology, testified about the report. The toxicologist led the process of reviewing the test results, employed the CBI’s quality control process, and certified the results by signing the laboratory report. That fell within the meaning of “accomplishing” the report under C.R.S. § 16-3-309(5). The laboratory report was admissible.

The judgment was affirmed.

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Colorado Court of Appeals: Partial Closure of Courtroom Without Specific Findings was Structural Error

The Colorado Court of Appeals issued its opinion in People v. Irving on Thursday, January 10, 2019.

Constitutional Law—Sixth Amendment—Public Trial—Courtroom Closure.

Defendant was charged with first degree murder and conspiracy to commit murder in connection with a gang-related dispute. During his trial, the prosecutor requested that the court exclude defendant’s mother from the courtroom during his former girlfriend’s testimony because, according to the prosecution, defendant’s mother had urged the girlfriend not to cooperate with the police about four years earlier. The trial court granted the prosecution’s request and partially closed the courtroom during the testimony of defendant’s former girlfriend. Defendant was convicted of second degree murder and conspiracy to commit murder.

On appeal, defendant contended that the courtroom closure violated his constitutional right to a public trial. The proponent of a courtroom closure must demonstrate not only an overriding interest but also a substantial probability that the identified interest will be prejudiced by an open courtroom. The need to protect witnesses from intimidation constitutes an overriding interest. Here, the alleged intimidation was based on a single, ambiguous, four-year-old statement that the girlfriend later disregarded. The trial court may have identified an overriding interest, but it failed to make any finding that the interest in preventing witness intimidation would be prejudiced unless defendant’s mother was excluded from the courtroom during the girlfriend’s testimony. Therefore, the court erred in partially closing the courtroom and violated defendant’s constitutional right to a public trial. Further, the error was structural.

The convictions were reversed and the case was remanded for a new trial.

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Colorado Supreme Court: Trooper’s Erroneous Interpretation of Governing Statute Was Not Reasonable Mistake of Law

On Monday, January 14, 2019, the Colorado Supreme Court issued its opinion in People v. Burnett.

Searches and Seizures—Reasonable Suspicion— Mistake of Law.

In this interlocutory appeal, the supreme court considered whether a Colorado State Patrol trooper made a reasonable mistake of law when the trooper stopped a car for making what he believed to be an illegal lane change after witnessing the driver flash her turn signal twice over a distance of less than 200 feet and then change lanes. The court held that the trooper’s erroneous interpretation of the governing statute, C.R.S. § 42-4-903, did not constitute an objectively reasonable mistake of law. It is plain from the text of the statute that a driver is not required to signal continuously for any set distance before changing lanes on a highway; the statute only requires that a driver use a signal before changing lanes. Thus, because this was not a reasonable mistake of law, the trooper did not have reasonable suspicion to justify the investigatory stop. The court therefore affirmed the trial court’s suppression order.

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