August 24, 2019

Colorado Supreme Court: Eyewitness’ In-Court Identification Allowed Despite Previous Failure to Identify Defendant in Photo Array

The Colorado Supreme Court issued its opinion in Garner v. People on Monday, March 18, 2019.

Eyewitnesses—Identification Evidence and Procedures—In-Court Identification.

The supreme court reviewed whether due process or the Colorado Rules of Evidence required the exclusion of victim-witnesses’ in-court identifications of defendant, where each witness had failed to identify defendant in a photographic array before trial and almost three years had elapsed between the crime and the confrontations. The court held that where an in-court identification is not preceded by an impermissibly suggestive pretrial identification procedure arranged by law enforcement, and where nothing beyond the inherent suggestiveness of the ordinary courtroom setting made the in-court identification itself constitutionally suspect, due process does not require the trial court to prescreen the identification for reliability. Here, because defendant alleged no impropriety regarding the pretrial photographic arrays, and the record revealed nothing unusually suggestive about the circumstances of the witnesses’ in-court identifications, the in-court identifications did not violate due process. The court further held that defendant’s evidentiary arguments were unpreserved, and the trial court’s admission of the identifications was not plain error under CRE 403, 602, or 701. Accordingly, the court affirmed the court of appeals’ judgment.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: CRE 901 Requires Flexible, Factual Inquiry to Determine Whether Proffered Evidence is What Proponent Claims

The Colorado Court of Appeals issued its opinion in People v. Gonzales on Thursday, March 7, 2019.

Criminal Law—Evidence—Authentication—Voicemail Recording—Photographs.

Gonzales grew up down the street from the victim. He was sexually attracted to the victim from a young age. Gonzales eventually moved away from the neighborhood. Years later, Gonzales broke into the victim’s house and waited a substantial time for the victim to return. When the victim returned, Gonzales repeatedly stabbed him in the neck, killing him. Gonzales then sexually assaulted the victim’s dead body and attempted, unsuccessfully, to set the house on fire to destroy the evidence. Gonzales fled the scene with a credit card, a debit card, and cash that he had taken from the victim’s wallet. Gonzales was charged and convicted of first degree murder with intent and after deliberation, first degree felony murder, abuse of a corpse, stalking, arson, burglary, and aggravated robbery.

On appeal, Gonzales argued that the trial court erred in admitting a tape recording of a voicemail that he allegedly left for the victim because the prosecution did not properly authenticate the recording of the voicemail. Here, the victim’s sister found the recording in his house after the premises were released to her by the police. A police officer who interrogated Gonzales at length testified that Gonzales’s voice was heard on the voicemail. Gonzales did not claim that the recording was falsified or manipulated. These uncontested facts supported a CRE 901 finding that the voicemail was what the prosecutor purported it to be, a voicemail left by Gonzales for the victim. Accordingly, the trial court did not abuse its discretion in admitting the voicemail.

Gonzales also argued that the trial court abused its discretion in admitting a photograph showing Gonzales’s tattoos because it was both irrelevant and highly prejudicial. The tattoo on one arm says “CHUBBY” and the tattoo on the other says “CHASER.” Gonzales admitted both that he was he was attracted to larger men and that he killed a person who fit that physical description. On these facts, the jury was entitled to consider the probative value of the tattoos.

The judgment was affirmed.

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: 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.

Summary provided courtesy ofColorado Lawyer.

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.

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.

Colorado Supreme Court: Water Court Entitled to Draw Reasonable and Commonsense Inferences from Circumstances Before It

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

Contempt—Acts or Conduct Constituting Contempt of Court.

In this direct appeal, the supreme court reviewed the water court’s contempt order, which imposed punitive and remedial sanctions on defendant. The water court determined that defendant was responsible for work performed on his property, the Sease Ranch, which caused out-of-priority depletions of water from Sheep Creek in violation of a court order. In its ruling, the water court inferred from defendant’s ownership of the Sease Ranch that he, not someone else, was responsible for the contemptuous work.

The court concluded that the water court had ample evidence to find that defendant is the owner of the Sease Ranch. Further, the court determined that the water court did not shift the burden of proof to defendant. The water court was entitled to draw reasonable and commonsense inferences from the circumstances before it. Thus, it was appropriate for the water court to consider the lack of evidence, and the corresponding improbability, that someone else entered the Sease Ranch and performed the contemptuous work without defendant’s authorization.

Accordingly, the water court’s judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Totality of Circumstances, Including Drug Dog’s Alert, Provided Probable Cause for Car Search

The Colorado Supreme Court issued its opinion in People v. Bailey on Monday, October 15, 2018.

Searches and Seizures—Probable Cause—Search Without Warrant—Odor Detection—Use of Dogs.

In this interlocutory appeal, the supreme court considered whether the trial court erred in ruling that state troopers lacked probable cause to search defendant’s car when they placed Mason, a narcotics-detecting dog, inside the car to sniff around. The court held that the totality of the circumstances, including Mason’s alert to the odor of narcotics while sniffing the exterior of defendant’s car, provided the troopers with probable cause to search the car. The fact that Mason’s alert was not a final indication did not render it irrelevant to the troopers’ probable cause determination. Therefore, the court reversed the trial court’s order suppressing evidence collected by the troopers during a subsequent hand search of the car.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Competency Records of Other Defendant in Related Case were Protected by Privilege

The Colorado Supreme Court issued its opinion in Zapata v. People on Monday, October 15, 2018.

Physician-Patient Privilege—Psychologist-Client Privilege—Competency Evaluations—Res Gestae.

In this case, the trial court declined to give defendant access to, or to review in camera, competency reports regarding another defendant in a factually related but separate case. Over objection, the trial court also admitted uncharged misconduct evidence as res gestae.

The supreme court held that competency reports are protected by the physician-patient or psychologist-client privilege and that the examinee did not waive the privilege as to defendant when he put his competency in dispute in his own case. The court also held that defendant’s confrontation right was not implicated and that defendant did not make a sufficient showing that the competency reports contained exculpatory evidence to justify their release to him or review by the trial court pursuant to due process or Crim. P. 16.

The court further held that any error in admitting the uncharged misconduct evidence as res gestae was harmless given the strong evidence of defendant’s guilt.

Accordingly, the court of appeals’ judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Exclusionary Rule Correctly Applied to Suppress Results of Illegal Collection of Juvenile’s DNA

The Colorado Supreme Court issued its opinion in Casillas v. People on Monday, September 24, 2018.

Evidence—Searches and Seizures—Exclusionary Rule.

In this criminal appeal, the supreme court reviewed whether the exclusionary rule required the suppression of evidence derived from a juvenile probation officer’s unauthorized collection of DNA from a juvenile in violation of C.R.S. § 19-2-925.6 and the Fourth Amendment. The court held that (1) juvenile probation officers are properly considered adjuncts to law enforcement; (2) the officer’s collection of the juvenile’s DNA for uploading to CODIS served an inherent law enforcement function; (3) nothing in the record suggests the officer conducted the buccal swab search in reliance on misinformation provided by a third party; and (4) the unlawful search here was not based on a reasonable misinterpretation of the law. Because suppression would have a deterrent effect by removing incentives to collect DNA from ineligible juvenile offenders, the court held that suppression was warranted. Accordingly, the court reversed the court of appeals’ judgment and remanded the case with instructions to vacate petitioner’s conviction.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Evidence Viewed in Light Most Favorable to Prosecution Sufficient to Affirm Restitution Order

The Colorado Court of Appeals issued its opinion in People v. Barbre on Thursday, August 23, 2018.

Criminal Law—Sentencing—Restitution—Burden of Proof—Preponderance of the Evidence.

Defendant stole several types of prescription pain medication while working at a pharmacy. She pleaded guilty to one count of theft and one count of possession of a controlled substance occurring over a nearly year-long period. The district court sentenced her to two years of probation and ordered restitution.

On appeal, defendant challenged the amount of restitution, contending that the prosecution did not sufficiently prove that she caused a loss in the amount of $10,553.80. Here, the court specifically relied on defendant’s admission that she had stolen thousands of pills over a one-year period and the pharmacy’s automated system for tracking inventory. Viewed in the light most favorable to the prosecution, the evidence was sufficient.

The order was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: No Plain Error Occurred by Admitting Firearms After Pictures Admitted

The Colorado Court of Appeals issued its opinion in People v. Allgier on Thursday, August 23, 2018.

Criminal Law—Burglary—Possession of a Weapon by a Previous Offender—Evidence—Hearsay—Prosecutorial Misconduct.

During a burglary, several firearms were stolen. M.S., a suspect in the burglary, told police that he had seen defendant, a previous offender but not one of the burglars, in the back seat of a vehicle next to a box containing some of the stolen firearms. M.S. also said that the firearms might be found at an apartment associated with defendant. The police went to the apartment, seized three of the stolen firearms, and arrested defendant. A jury convicted defendant of possession of a weapon by a previous offender (POWPO).

On appeal, defendant argued that the trial court plainly erred in admitting into evidence the three firearms that were the basis for the POWPO charge, in addition to photographs of them. The prosecution is generally entitled to prove the elements of its case against a defendant by evidence of its own choice. Further, the firearms were accurately described in the photographs admitted into evidence, and defendant did not object to the photographs. Therefore, there was no error in admitting the firearms as the instrumentality of the crime.

Defendant also contended that the trial court erred in admitting hearsay statements of a witness, which improperly bolstered testimony. Here, the court allowed the detective who had interviewed M.S. about the burglary to testify as to that interview. The trial court sustained defendant’s objection to the detective’s more general statements about what M.S. had said, limiting the testimony to whether M.S. changed his story in any significant way. There was no risk of bolstering from this limited testimony.

Defendant further contended that the trial court plainly erred in allowing the prosecutor to mischaracterize the evidence and the law during closing argument. Here, the prosecutor’s statements were few in an otherwise lengthy summation and when read in conjunction with the prosecutor’s other statements, any error was not glaring.

Lastly, defendant contended that the aggregate impact of numerous errors denied his right to a fair trial. Here, the Court of Appeals found only unpreserved errors that were not plain. Accordingly, defendant was not deprived of a fair trial.

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.