July 22, 2018

Colorado Court of Appeals: Closure of Courtroom to Reread Jury Instructions Violated Defendant’s Right to Public Trial

The Colorado Court of Appeals issued its opinion in People v. Lujan on Thursday, June 12, 2018.

Right to Public Trial—Constitutional Law—Sixth Amendment—Rebuttal—Residual Hearsay Exception—Other Acts Evidence.

The victim, defendant’s live-in girlfriend, was beaten, strangled, and left on the ground outside a friend’s apartment in 1999. In 2013, the People charged defendant with first degree murder. On the first day of trial, defendant conceded that he was responsible for the victim’s death, but he argued that he was guilty only of reckless manslaughter. After jury deliberations had started, the trial judge closed the courtroom to read limiting instructions to the jury, over defendant’s objection. The jury found defendant guilty of second degree (knowing) murder.

On appeal, defendant contended that his conviction must be reversed because closing the courtroom to read limiting instructions upon the jury’s request violated his right to a public trial and his right to be present. A criminal defendant’s right to a public trial is guaranteed by both the U.S. and Colorado Constitutions. Here, the trial court sua sponte excluded all but the jury, the bailiff, the reporter, and itself from the courtroom. In this case, the closure was total, intentional, and unjustified, and defendant’s Sixth Amendment right was violated.

Defendant also contended that the court committed three evidentiary errors. First, a law enforcement officer testified for the People that in all of their interactions, defendant had never seemed upset or remorseful about the victim’s death. Defendant contended that because the prosecution opened the door to his demeanor, and the testimony did not involve hearsay, he was entitled to elicit rebuttal testimony as part of his right to present a defense. Exclusion of the rebuttal testimony was an abuse of discretion because the court misapplied the law in concluding that the evidence was hearsay. On the other hand, the court did not abuse its discretion in admitting statements made by the victim to two witnesses before her death under the residual hearsay exception because the court found that these statements were sufficiently trustworthy. The court also did not abuse its discretion in allowing defendant’s ex-wife and his former girlfriend to testify about defendant’s specific acts while in their individual relationships, finding that defendant had committed such acts and the evidence was related to a material fact with logical relevance independent of the prohibited inference of defendant’s bad character. Further, the court provided an appropriate limiting instruction.

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

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Defendant’s Statements Admissible Under Two-Part Seibert Test

The Colorado Supreme Court issued its opinion in Verigan v. People on Monday, June 11, 2018.

Suppression of Statements—Two-Step Interrogation—Plurality Supreme Court Opinions—Miranda Warnings.

This case required the supreme court to decide (1) whether the U.S. Supreme Court’s fractured opinion in Missouri v. Seibert, 542 U.S. 600 (2004), created a precedential rule that could be applied to future cases, and (2) whether statements made by petitioner after she was given Miranda warnings should be suppressed because the statements were made after petitioner provided unwarned, incriminating statements to the police.

The court concluded that Justice Kennedy’s concurring opinion in Seibert, which created an exception to the framework established in Oregon v. Elstad, 470 U.S. 298 (1985), for cases involving a deliberate two-step interrogation aimed at undermining the efficiency of the Miranda warning, is the controlling precedent to be applied. Applying Justice Kennedy’s test here, the court concluded that the officers in this case did not engage in a two-step interrogation in a deliberate attempt to undermine the effectiveness of Miranda warnings provided to petitioner. Therefore, the court concluded that the Elstad framework applies, and because petitioner’s pre- and post-warning statements were indisputably voluntary, the court concluded that the division correctly determined that petitioner’s post-warning statements were admissible.

Accordingly, the court affirmed the court of appeals division’s judgment.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Attempted Murder Conviction Must Be Vacated When Arising from Same Event as Actual Murder Conviction

The Colorado Court of Appeals issued its opinion in People v. Johnson on Thursday, May 31, 2018.

Criminal Law—Murder—Accessory—Fifth Amendment—Double Jeopardy—Undisclosed Alibi Defense—Mistrial—Testimonial Hearsay Statements—Doctrine of Forfeiture by Wrongdoing—Residual Hearsay Exception—Complicity Jury Instruction—Lesser Included Offense—Transferred Intent.

Jackson and his friends were members of “Sicc Made,” a subset of the Crips gang. Jackson drove a vehicle to the apartment of E.O., a rival gang member, with the intention of shooting E.O. Victim Y.M. lived in E.O.’s apartment complex. Believing Y.M. was E.O., another “Sicc Made” gang member got out of Jackson’s car, walked over to an SUV, and shot Y.M. twice in the head, killing him instantly. When they realized they had killed the wrong man, the men turned and fired numerous shots into E.O.’s apartment. Defendant was convicted of first degree murder after deliberation, attempted first degree murder after deliberation, attempted first degree murder with extreme indifference, conspiracy to commit first degree murder, and accessory.

On appeal, Jackson first challenged the court’s decision to declare a mistrial after cross-examination of his ex-wife revealed an undisclosed alibi defense. A defendant may not elicit alibi evidence, absent good cause, without first complying with the Crim. P. 16(II)(d) alibi disclosure requirements. It is undisputed that the defense provided no notice to the prosecution of the alibi, despite receiving it a month before trial. The defense decided not to disclose the new information but to elicit it on cross-examination in violation of Rule 16. Further, the trial court carefully considered the parties’ arguments and its available options and was in the best position to assess the prejudicial impact. The trial court did not abuse its discretion in deciding to declare a mistrial.

Jackson next contended that the trial court erroneously admitted testimonial hearsay statements of uncharged co-conspirator Walker to law enforcement officials under the doctrine of forfeiture by wrongdoing and under the CRE 807 residual hearsay exception. However, (1) the prosecution proved by a preponderance of the evidence that Jackson forfeited his right to confront Walker because he caused Walker’s refusal to testify, and (2) the trial court did not abuse its discretion in admitting Walker’s statements under CRE 807.

Jackson also contended that the complicity instruction was erroneous. The jury instruction defining first degree murder after deliberation, when read with the complicity instruction, accurately required the jury to find that Jackson was aware that the shooter acted after deliberation and with the intent to cause the death of the victim. Accordingly, there was no error in the complicity instruction.

Finally, Jackson contended that the trial court erred in imposing two convictions and consecutive sentences for his attempted murder convictions. When a defendant attempts to deliberately kill one person but mistakenly kills a different person and is convicted of both the attempted murder of the intended victim and the actual murder of the unintended victim, the attempted murder conviction must be vacated because it is a lesser included offense of the murder conviction. Here, the undisputed evidence shows that the shooter and Jackson intended to kill E.O. and mistakenly killed Y.M., believing him to be E.O. Under the doctrine of transferred intent, Jackson’s specific intent to kill E.O. transferred to Y.M. and made him criminally liable for Y.M.’s death. Therefore, the attempted murder of E.O. after deliberation is a lesser included offense of the murder after deliberation of Y.M. The trial court’s error was obvious, substantial, and undermined the fairness of the proceeding.

The convictions of first degree murder after deliberation, attempted first degree murder with extreme indifference, conspiracy to commit first degree murder, and accessory were affirmed. The judgment for attempted first degree murder after deliberation was vacated and the case was remanded for correction of the mittimus.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Crim. P. 32(d) Does Not Allow Withdrawal of Pleas of Not Guilty by Reason of Insanity

The Colorado Court of Appeals issued its opinion in People v. Laeke on Thursday, May 31, 2018.

Criminal Procedure—Not Guilty by Reason of Insanity—Crim. P. 32(d)—Withdrawal of Guilty Plea—C.R.S. § 16-8-115.

The prosecution charged defendant with one count of criminal attempt to commit unlawful sexual contact and one count of indecent exposure. These charges were based on events that occurred while defendant was a patient at a psychiatric ward. Defense counsel entered an insanity plea on defendant’s behalf over his objection. The court ultimately accepted defendant’s insanity plea, and it found defendant not guilty by reason of insanity. Defendant spent almost 10 years at the Mental Health Institute. Shortly after being placed in the community, defendant filed a Crim P. 32(d) motion to withdraw his insanity plea, which the trial court denied.

On appeal, defendant argued that the court erred by denying his Rule 32(d) motion. A request to withdraw a plea under Rule 32(d) applies only to guilty pleas and nolo contendere pleas, not to pleas of not guilty by reason of insanity. Further, an insanity plea should not be treated as the equivalent of a guilty plea for purposes of Rule 32(d). Rule 32(d) did not apply to defendant’s request to withdraw his insanity plea.

The order was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Obvious Error in Trial Court’s Restitution Calculation Did Not Seriously Affect Fairness or Integrity of Judicial Proceeding

The Colorado Court of Appeals issued its opinion in People v. Butcher on Thursday, April 19, 2018.

Restitution—Post-Judgment Interest—Crim. P. 52(b)—Plain Error.

A jury convicted Butcher of two counts of securities fraud and two counts of theft from at-risk adults, and he was ordered to pay restitution.

On appeal, Butcher argued that the trial court erred in its award of prejudgment and post-judgment interest in its amended restitution order. The court of appeals reviewed the appeal for plain error and found that the trial court erred by calculating post-judgment interest from the date of conviction rather than from the date of the operative restitution order. However, although this error was obvious, it did not seriously affect the fairness, integrity, or public reputation of judicial proceedings.

The court exercised its discretion under Crim. P. 52(b) and affirmed the order.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Defendant May Challenge Unrevoked Deferred Judgment under Crim. P. 32(d)

The Colorado Court of Appeals issued its opinion in People v. Figueroa-Lemus on Thursday, April 19, 2018.

Deferred Judgment—Crim. P. 32(d)—Jurisdiction—Immigration Consequences—Ineffective Assistance of Counsel—Withdrawal of Plea.

As relevant to this appeal, defendant pleaded guilty to possession of a schedule II controlled substance. The parties stipulated to a two-year deferred judgment. The court accepted the deferred judgment and sentenced defendant to two years of probation. About five months later, defendant filed a Crim. P. 32(d) motion to withdraw his guilty plea, arguing that his counsel failed to advise him of the clear immigration consequences of the plea and claiming that if he had been properly advised, he would have rejected the offer. After an evidentiary hearing, the district court denied the motion.

On appeal, the People argued that the court of appeals did not have jurisdiction to review the trial court’s order because the motion challenged a non-final judgment. Although a deferred judgment may not be subjected to either Crim. P. 35 or direct review while it is still in effect, a defendant may challenge an unrevoked deferred judgment under Crim. P. 32(d). Further, the Court had jurisdiction to review the district court’s denial of a motion to withdraw a guilty plea because that motion challenged a deferred judgment still in effect.

Defendant argued that his guilty plea was not made knowingly, voluntarily, and intelligently because his counsel never informed him of the clear immigration consequences of the plea. Here, the record supports the district court’s finding that defendant’s criminal attorney and immigration attorney both told defendant on multiple occasions that a guilty plea to a drug felony would result in deportation. Because counsel’s performance was not deficient, the district court did not abuse its discretion when it denied the Crim. P. 32(d) motion.

Defendant also argued that counsel should have advised him that he would be held in custody during the removal proceeding. The court found no authority that would require counsel to give this advice, and defendant failed to explain how such an advisement would have affected his decision to accept the plea offer.

The order was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Amendment to Information Narrowing Date Range Did Not Affect Defendant’s Substantial Rights

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

Crim. P. 7(e)—Time-Allegation Amendments.

In this case, the supreme court considered whether an amendment to an information narrowing the date range after trial began was permissible under Crim. P. 7(e). To do so, as required under Rule 7(e), the court analyzed whether the amendment was one of form or substance and whether it prejudiced defendant’s substantial rights. Because the amendment simply narrowed the date range in the information and did not prejudice defendant’s substantial rights, the court concluded that the amendment was one of form and was permissible after trial began. Hence, the trial court did not abuse its discretion in permitting the amendment to the information.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Defendant Must be Prosecuted Under Specific Statute for Theft of Food Stamps

The Colorado Court of Appeals issued its opinion in People v. Rojas on Thursday, February 22, 2018.

Criminal Law—Theft—Colorado Public Assistance Act—Food Stamps—Fraudulent Acts.

Rojas received food stamps. When requesting an extension of food stamp benefits, Rojas reported that she had no employment income, although she had been hired as a restaurant manager. While continuing to work as a restaurant manager, Rojas received $5,632 worth of food stamps to which she was not entitled. Rojas was found guilty of two counts under the general theft statute, CRS 18-4-401, and one count under CRS 26-2-305(1)(a), which criminalizes failing to report a change in financial circumstances that affects that participant’s eligibility for food stamps.

On appeal, Rojas challenged the trial court’s denial of her motion to dismiss the general theft counts. She argued that the trial court erred in finding that she could be prosecuted for theft of food stamps under the general theft statute. The prosecution is barred from prosecuting under a general criminal statute when the legislature evinces a clear intent to limit prosecution to a more specific statute. CRS 26-2-305(1)(a) creates a more specific criminal offense, theft of food stamps by a fraudulent act, than the general theft statute, and the General Assembly intended it to supplant the general theft statute.

The convictions under the general theft statute were vacated.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Prosecution’s Withholding of Evidence was Brady Violation and Sanctions Warranted

The Colorado Supreme Court issued its opinion in People v. Bueno on Monday, January 22, 2018.

Motion for New Trial—Evidence.

In this case, the Colorado Supreme Court considered two questions. The first is whether a Crim. P. 33(c) motion for a new trial is time-barred because it was filed more than one year after the defendant’s conviction, and thus arguably more than one year after “entry of judgment.” The second is whether the trial court erred in granting a new trial after concluding that the prosecution violated Brady v. Maryland, 373 U.S. 83 (1963), by failing to provide to the defense evidence that the prosecution had obtained at the outset of the investigation until after defendant’s conviction. The court held that “entry of judgment,” for the purposes of Rule 33(c), does not occur until both a verdict or finding of guilt and the imposition of a sentence. The court concluded that, applying Brady’s disclosure requirements, the trial court did not abuse its discretion in granting a motion for a new trial.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Parties Cannot Waive Statutory Time Period for Record Sealing

The Colorado Court of Appeals issued its opinion in Robertson v. People on Thursday, November 16, 2017.

Plea Agreement—Menacing—Consumption of Marijuana—Possession of Drug Paraphernalia—Consumption of Alcohol—Deferred Judgment—Petition to Seal—Statutory Waiting Period.

In 2014, Robertson was charged in three separate cases with (1) misdemeanor menacing; (2) consumption of marijuana and possession of drug paraphernalia; and (3) consumption and possession of alcohol by a person under 21. Robertson entered into a global plea agreement whereby he pleaded guilty to the menacing charge and received a deferred judgment lasting one year, the drug and alcohol cases were dismissed, and Robertson was permitted to seal the records of all three cases. After Robertson completed the deferred judgment, his guilty plea was withdrawn and the case was dismissed. He petitioned the court to seal the records in all three cases, which the court granted.

On appeal, the prosecution contended that the district court erred by granting Robertson’s petitions to seal the records in the drug and alcohol cases because C.R.S. § 24-72-702(1)(a)(III)(A) prohibits such sealing until at least 10 years have passed. Where a statute prohibits a court from sealing criminal records until 10 years have passed since the disposition of the criminal proceedings, as in this case, the parties may not waive this requirement and authorize the court to seal the records earlier. Therefore, the district court lacked authority to seal the criminal records in the drug and alcohol cases. The records in the menacing case, however, were eligible for sealing because that case was completely dismissed after Robertson completed the deferred judgment. However, the existing record in the menacing case was not sufficient to support the order.

The orders in the drug and alcohol cases were vacated. The order in the menacing case was reversed and the case was remanded for further proceedings.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Surety Erroneously Required to Return Part of Bond

The Colorado Court of Appeals issued its opinion in People v. Fallis on Thursday, October 19, 2017.

Bond—Refund—C.R.S. §16-4-110(1)(d).

Defendant was charged with and arrested for allegedly murdering his wife. The district court set a $500,000 bond. Defendant posted bond through Perna by paying a $25,000 premium. Thereafter, defendant cooperated with all court orders and appeared at all hearings. Fourteen months later, just before defendant’s trial was to begin, Perna moved to surrender defendant back into the custody of the court. The court granted the motion. Defendant spent several days in jail while his family secured a second bond and paid another $25,000 premium to a different surety to secure defendant’s release. Defendant was ultimately acquitted. Defendant moved for return of the premium he had paid to Perna, which the court partially granted, ordering Perna to return $11,031.25 to defendant.

On appeal, Perna contended that the district court erred by ordering that he refund a portion of the bond premium to defendant. Under C.R.S. § 16-4-110(1)(d), a court may order return of all or part of the premium defendant paid to prevent unjust enrichment only if the surrender occurred before the defendant’s initial appearance. Here, Perna surrendered defendant to the court 14 months after the court process began, well after defendant’s initial appearance. Accordingly, the court was without the authority to order Perna to refund all or part of defendant’s premium.

The order was vacated.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Predicate Offense Must Be Felony at Time of Current Offense for Habitual Offender Designation

The Colorado Court of Appeals issued its opinion in People v. Kadell on Thursday, October 5, 2017.

Habitual Criminal—Sufficiency of Evidence—Prior Felony Conviction—Collateral Attack—Excusable Neglect—Extended Proportionality Review.

A jury convicted Kadell of six counts of robbery and one count of aggravated motor vehicle theft, each of which is a class 4 felony. The prosecution filed habitual criminal counts, and Kadell moved to suppress his prior felony convictions as a way to collaterally attack those convictions. The motion was untimely, but Kadell argued that his failure to timely file was the result of excusable neglect. The trial court did not rule on the excusable neglect claim. Before sentencing, the trial court adjudicated Kadell a habitual criminal based on three prior felony convictions, including, as relevant here, one in 1997 for attempted cultivation of marijuana. In accordance with the habitual criminal statute, the trial court imposed a 24-year sentence in the custody of the Department of Corrections, four times the presumptive maximum sentence for a class 4 felony.

On appeal, Kadell contended that the trial court erred in imposing a sentence under the habitual criminal statute because there was insufficient evidence that he was convicted of three qualifying felonies before his current convictions. He argued that his 1997 conviction for attempted cultivation of marijuana did not count as a felony under the habitual criminal statute because when he committed his offenses in this case, attempted cultivation of marijuana was no longer a felony in Colorado unless the defendant possessed more than six plants, and the trial court had no evidence of how many plants were involved in the 1997 conviction. As a matter of first impression, the Colorado Court of Appeals concluded that for a prior drug felony conviction to qualify as a predicate offense under the habitual criminal statute, the prosecution must prove that the prior offense of conviction remained a felony under Colorado law at the time the defendant committed the new offense, even when the prior conviction was entered in Colorado. The prosecution did not present sufficient evidence of this fact at Kadell’s sentencing hearing.

Kadell next argued that the trial court erred by finding that his failure to timely file a collateral attack on his prior convictions was not the result of excusable neglect. The issue of excusable neglect is a question of fact to be resolved first by the trial court. The record does not reflect that the trial court ruled on Kadell’s excusable neglect claim.

Kadell further sought an extended proportionality review of his sentence. This argument is moot at this juncture.

The sentence was reversed and the case was remanded for further proceedings.

Summary provided courtesy of Colorado Lawyer.