March 20, 2019

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.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Postconviction Matters for County Court Felony Criminal Matter Resolved in County Court, Not District Court

The Colorado Court of Appeals issued its opinion in People v. Vargas-Reyes on Thursday, December 28, 2018.

Criminal Law — Commencement of Prosecution — Felony Complaint in County Court; Criminal Procedure — Appeals From County Court

A division of the court of appeals considers whether, when a felony case is commenced in county court pursuant to section 16-5- 101(1)(c), C.R.S. 2018, and resolved with a plea agreement involving only misdemeanor pleas, the plea and any subsequent postconviction matters are handled by the county court or by the district court. We conclude that unless the matter is formally bound over to the district court before the plea is accepted, it remains a county court matter for purposes of appeal. Because this appeal involves a challenge to the denial of a postconviction motion issued by the county court, this court lacks jurisdiction and the appeal is dismissed.

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Colorado Court of Appeals: Invited Error Does Not Preclude Appellate Review Where Defendant Objected to Juror but Did Not Use Peremptory Challenge to Excuse Her

The Colorado Court of Appeals issued its opinion in People v. Garcia on Thursday, December 27, 2018.

Juries — Challenges for Cause — Peremptory Challenges; Appeals — Invited Error Doctrine

A division of the court of appeals considers whether appellate review is precluded by the doctrine of invited error where a trial court denies a defendant’s challenge for cause, the defendant later exhausts all her peremptory challenges, and the defendant does not use a peremptory challenge to excuse the challenged juror. The partial dissent in People v. Novotny suggests that such a result is arguably justified by these facts. 2014 CO 18, ¶ 31 (Hood, J., concurring in part and dissenting in part). Relying on Morrison v. People, 19 P.3d 668 (Colo. 2000), the division concludes that (1) a defendant is not required use a peremptory challenge against an objectionable juror in order to preserve her claim that the juror was biased and should not have participated in her trial; (2) a defendant does not take legally inconsistent positions where her challenge for cause is denied as to a particular juror but she chooses not to use her peremptory challenges to excuse that juror; and (3) where the record does not support an inference that defendant’s counsel purposely failed to use a peremptory challenge in order to preserve an issue for appeal, counsel’s failure to dismiss an objectionable juror does not demonstrate her affirmative acquiescence to the trial court’s denial of her challenge for cause. Therefore, invited error does not preclude appellate review in this case.

The division further rejects the defendant’s contention that a trial court may not deny a challenge for cause unless a juror provides unequivocal assurances that she can put aside her bias and give the defendant a fair trial. Because the trial court is in the best position to observe the juror’s credibility and demeanor, it may accept a juror’s assurances that she can act fairly even though some of her statements are ambivalent or self-contradictory.

Accordingly, the division affirms the judgment of the trial court.

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Colorado Court of Appeals: Hearsay Evidence of Value Not Necessarily Admissible Without Reliable Evidence of Price or Value

The Colorado Court of Appeals issued its opinion in People v. Jaeb on Thursday, December 28, 2018.

Crimes — Theft — Evidence of Value; Evidence — Hearsay Exceptions

A division of the court of appeals considers whether all types of hearsay evidence are permitted as evidence of value for all cases of theft, pursuant to section 18-4-414(2), C.R.S. 2018, which provides that “[h]earsay evidence shall not be excluded in determining the value of [a] thing.” The division concludes that the statutory hearsay exception is not a blanket exception to the hearsay rule for proof of value of any stolen property but applies only where the hearsay “regard[s] affixed labels and tags, signs, shelf tags, and notices,” or other reliable evidence of “the sale price of other similar property” as specified in section 18-4-414(2).

The division further concludes that the evidence of value offered by the prosecution was hearsay, was not admissible under the business records exception, and that absent such evidence the prosecution failed to provide competent evidence for the value of the stolen property. Because the evidence was insufficient to sustain felony theft conviction but sufficient as to misdemeanor theft, the division reverses the conviction of felony theft and remands for resentencing on the lower charge.

The division also affirms a restitution order for damage to the stolen property.

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Colorado Supreme Court: Restitution Not Available for Losses for Which the Defendant Was Not Convicted

The Colorado Supreme Court issued its opinion in Cowan v. People on Monday, December 10, 2018.

Sentencing—Restitution—Compensable Losses.
The supreme court held that Colorado’s restitution statutes do not allow trial courts to order restitution for pecuniary losses caused by conduct that formed the basis of a charge of which the defendant has been acquitted. Even where the defendant has been convicted of a separate charge, this state’s restitution statutes do not permit a trial court to impose restitution for losses suffered as a result of the acquitted conduct. The prosecution’s contrary construction would both violate well-settled rules of statutory interpretation and run afoul of the Fourteenth Amendment’s guarantee of procedural due process. Because the court of appeals affirmed the order requiring defendant to pay restitution for losses caused by conduct supporting an acquitted charge, the supreme court reversed that court’s decision. The matter was remanded to the court of appeals for further proceedings consistent with this opinion.

Summary provided courtesy of Colorado Lawyer.

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.