October 21, 2018

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.

Colorado Court of Appeals: Defendant’s Refusal to Leave Ex-Girlfriend’s Residence Could Leave him Subject to Prosecution for Trespass and Burglary

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

Criminal Law—Trespass—Burglary—Assault—Landlord–Tenant Agreement—Evidence—Doctrine of Completeness—Credibility.

Defendant’s ex-girlfriend (the victim) asked him to come to her house to help with an errand. The couple had dated “on and off” for about two years, and defendant had stayed frequently at the house, but the two had broken up about two-and-a-half weeks earlier. Defendant entered the victim’s house, and the two got into an argument. The victim told defendant to leave. Defendant threatened the victim, ripped off her clothes, and tried to sexually assault her. At that moment, a friend of the victim showed up. Defendant chased him into the street. The victim locked the door behind defendant and called 911. Defendant yelled at the victim to let him back in the house, but she refused. He then broke a window on the front door trying to get back inside. Defendant was found guilty of first degree burglary, trespass, third degree assault, false imprisonment, attempted sexual assault, attempted second degree burglary, and criminal mischief.

On appeal, defendant contended that the court provided an inaccurate jury instruction defining “enters unlawfully” and “remains unlawfully,” and that it abused its discretion by refusing his tendered instruction explaining those concepts. The basis for defense counsel’s objection to the prosecutor’s added instruction and for his requested instruction was his argument that defendant wasn’t on the premises unlawfully because he lived there. However, defendant failed to present any evidence of a landlord–tenant agreement between him and the victim, and he didn’t pay rent. Therefore, defendant was not a tenant and didn’t have a possessory interest in the premises other than that the victim allowed. The district court did not need to provide the type of instruction that defense counsel tendered.

Defendant further contended that the district court erred by denying his motions for a judgment of acquittal based on insufficiency of the evidence. The record contains sufficient evidence to support the jury’s finding that defendant knowingly entered or remained in the victim’s house unlawfully with the intent to assault and sexually assault the victim, and that he attempted to sexually assault the victim.

Defendant also contended that the district court erred by ruling that if he introduced certain of his recorded statements pursuant to the doctrine of completeness, his credibility would be implicated, and the prosecution could use his Montana deferred judgment to impeach his credibility. He argued that as a result of these rulings, the district court infringed on his right to a fair trial and to confront witnesses, because he was dissuaded from introducing his statements and cross-examining the prosecution’s investigator. Defendant’s statements were self-serving and were inadmissible under the doctrine of completeness. Further, defendant waived his contention that his testimony couldn’t be impeached by the Montana judgment. Alternatively, had defendant not waived this issue, the Montana judgment constituted an admissible felony conviction, and any error wasn’t plain.

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Trial Court Erred in Instructing Jury on Initial Aggressor Exception to Self-Defense With No Supporting Evidence

The Colorado Supreme Court issued its opinion in Castillo v. People on Monday, June 25, 2018.

Self-Defense—Initial Aggressor—Jury Instructions.

Defendant fired a gun at several people in a parking lot. He asserted that he did this in self-defense. Over defendant’s objection, the trial court instructed the jury on two exceptions to the affirmative defense of self-defense: initial aggressor and provocation. The jury convicted defendant of several criminal charges. The supreme court concluded the division of the court of appeals erred when it determined that the trial court correctly instructed the jury on the initial aggressor exception to self-defense. The court further concluded the error was not harmless in light of the prosecution’s repeated references to the initial aggressor exception during closing argument. Accordingly, defendant is entitled to a new trial. The court of appeals’ judgment was reversed and the case was remanded.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Grand Jury Foreman’s Failure to Sign Indictment Did Not Deprive Court of Jurisdiction

The Colorado Court of Appeals issued its opinion in People v. Tee on Thursday, June 14, 2018.

Criminal Procedure—Grand Jury—Attempt to Influence a Public Servant—Jury—Predeliberation—Waiver—Evidence.

Tee was convicted of multiple charges, including two counts of attempting to influence a public servant.

On appeal, Tee contended that because the indictment received by the district court did not contain the signature of the grand jury foreperson, it did not confer jurisdiction and all charges must be dismissed. However, the signature of the foreperson need not be provided to the district court, and the court had jurisdiction.

Tee also contended that because two jurors engaged in predeliberation, he is entitled to a new trial. Here, defense counsel waived any error as to predeliberation.

Tee further argued that the two convictions for attempting to influence a public servant must be vacated because there was insufficient evidence supporting the convictions. Here, Tee was convicted of two counts of attempting to influence a public servant based on evidence that he made false reports of car accidents. The evidence was sufficient to support one count of attempting to influence a public servant where Tee provided information in person to a police officer who created a report based on what Tee had told him. However, the evidence was insufficient as to the other count where Tee filled in an accident report form on a computer terminal at a kiosk in the police department, because it did not show that Tee was attempting to influence a public servant.

Lastly, the attorney general conceded that the trial court violated Tee’s double jeopardy rights because it orally announced a 12-year sentence but the mittimus showed an 18-year sentence. The mittimus also incorrectly showed a conviction on a count that was dismissed.

The judgment was vacated as to one count and otherwise affirmed. The case was remanded to correct the mittimus.

Summary provided courtesy of Colorado Lawyer.

Tenth Circuit: Defendant Did Not Establish Significant Nexus Between Potential Alternative Perpetrators and Crimes

The Tenth Circuit Court of Appeals issued its opinion in United States v. Meisel on Tuesday, November 14, 2017.

In 2014, Detective Wright saw a user on the Ares file-sharing network offering child pornography. After identifying the IP address, Wright obtained a search warrant for a home Meisel shared with Thomas. Meisel’s personal computer was found to have child pornography on the external hard drive, with some pictures added just three days prior to the execution of the warrant. Meisel attributed the child porn to his son, W.R., who lived in the home previously. During the investigation, however, there was evidence of the child porn being viewed frequently after W.R. moved out of the home. Meisel continued to assert there was a sufficient nexus between three individuals, J.H., S.H., and W.R., and the child pornography. On appeal, Meisel asserted the district court (1) violated his right to present a complete defense by preventing him from presenting alternative perpetrator evidence; and (2) erred in denying his request to instruct the jury on “identity.”

As for the argument of J.H., Meisel asserted that J.H., Thomas’s caregiver, had unfettered access to the computer and external hard drive at times Meisel was absent from the home. Meisel asserts that the computer was logged into and child pornography was downloaded at times that Meisel was not at the home. Further, Meisel contends that J.H. has a high level of technical knowledge.

S.H. is J.H.’s brother, and Meisel contends that S.H. would often visit the home when the computer was accessible and that S.H. previously lived at the home and knew the wifi password.

W.R., Meisel’s son, lived at the home previously, and Meisel argue that he found W.R. accessing child pornography sites on his computer.

The district court determined that Meisel had not proffered sufficient evidence to establish the necessary nexus between any of the proposed perpetrators and the crimes with which Meisel was charged.

Meisel argued that the district court did not allow him to utilize the term “alternate perpetrator” in presenting his case to the jury. The question was whether the evidence was sufficient to allow Meisel to argue that a particular person was the one who placed the child pornography on his hard drive. The Tenth Circuit found that the district court did an appropriate balancing of evidence in finding that Meisel did not satisfy requirements for arguing that anyone else was responsible for downloading the child pornography.

The Supreme Court has noted that special considerations arise when a court is faced with a defense theory of an alternative perpetrator: “Evidence tending to show the commission by another person of the crime charged may be introduced by accused when it is inconsistent with, and raises a reasonable doubt of, his own guilt; but frequently matters offered in evidence for this purpose are so remote and lack such connection with the crime that they are excluded.”

The Tenth Circuit reexamined the three potential perpetrators Meisel provided. The information on S.H. was not admitted into evidence, as mere proximity and potential access are not sufficient to argue an alternative perpetrator to a crime. Further, the evidence implicating W.R. as the actual perpetrator set out a speculative and remote outcome. And at most, the evidence at trial demonstrated that W.R. used Meisel’s computer; however, there was no evidence indicating that W.R. was anywhere near Meisel’s computer for at least one year before the events at issue. J.H., however, seemed to be a viable alternative perpetrator for these crimes, as J.H. was present in the home four days a week and was present while Thomas slept during the day. Further, child pornography was downloaded on a day Meisel was possibly absent from the home, but J.H. was there. However, the theory that J.H. was responsible for the child pornography was presented to, and rejected by, the jury.

The Tenth Circuit found that the evidence of Meisel’s guilt was, contrary to protest, overwhelming. Unrebutted and unexplained forensic evidence demonstrated that Meisel’s assertion that he was unaware of the child pornography was implausible. Instead, the evidence overwhelmingly proved that after Thomas found child pornography on Meisel’s computer, Meisel took extraordinary efforts to limit access to his computer. For that very reason, Meisel stated during his interview that if child pornography was found on the computer, he was the responsible party. Although Meisel attempted to explain away that statement at trial with the theory he was only accepting ultimate responsibility for the computer, the Tenth Circuit found the evidence to the contrary to be overwhelming.

Lastly, Meisel asserted the district court refused to give his proffered identity instruction to the jury. The Tenth Circuit found that the district court did not abuse its discretion in determining that the existing jury instructions made it clear to the jury that Meisel was legally responsible for the charges if he personally and knowingly possessed and distributed the child pornography found on his computer. The Tenth Circuit found that the district court’s jury instructions were not erroneous or inadequate as given.

The Tenth Circuit Court of Appeals AFFIRMED the district court’s conviction.

Colorado Court of Appeals: Prosecutor Committed Misconduct by Repeatedly Referencing Other Bad Acts Not Properly Admitted at Trial

The Colorado Court of Appeals issued its opinion in People v. Fortson on Thursday, April 5, 2018.

Sexual Assault on a Child—Prosecutorial Misconduct—Character Evidence—Other Acts Evidence.

A jury found Fortson guilty of one count of sexual assault on a child and one count of sexual assault on a child as a part of a pattern of abuse.

On appeal, Fortson contended that the prosecutor improperly referenced and elicited evidence of other acts of sexual assault and sexual misconduct for propensity purposes and that she did so without first seeking to admit the evidence, presenting an offer of proof, or obtaining a ruling. The prosecutor committed misconduct when she repeatedly introduced, referenced, and argued to the jury that defendant previously committed uncharged sexual assaults against four other girls and the victim. The prosecutor did not seek the admission of the alleged uncharged sexual assaults for a proper purpose and improperly used this evidence for propensity purposes. The prosecutor’s pervasive misconduct undermined the fundamental fairness of the trial and cast serious doubt on the reliability of the judgment.

The judgments of conviction were reversed and the case was remanded.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Civil Service Commission Must Defer to Hearing Officer’s Findings of Fact

The Colorado Court of Appeals issued its opinion in Johnson v. City & County of Denver on Thursday, March 22, 2018.

Police Officer DisciplineUse of ForceStandard of Review in Disciplinary Appeals.

Johnson, a Denver police officer, worked off-duty at a nightclub in downtown Denver. One night Brandon and his friends left the nightclub and began arguing with Johnson about Johnson’s earlier interaction with one of their friends. Johnson moved the group under a High Activity Location Observation (HALO) camera, which video-recorded their interactions (no audio was recorded). The video revealed that everyone in the group was visibly intoxicated. Eventually only Brandon and another man remained. Johnson then told Brandon he was going to detox and to turn around to be handcuffed. Brandon profanely told Johnson not to touch him. Johnson then suddenly moved toward Brandon and shoved him with both hands near the neck. Brandon fell backward onto some stairs and was handcuffed.

Brandon filed a disciplinary complaint against Johnson. The Chief of Police determined that Johnson had violated Denver Police Department Rules and Regulations RR-306 (inappropriate force) and suspended him for 30 days without pay. The Manager of Safety (MOS) approved the discipline imposed. Johnson appealed to a civil service commission hearing officer. The hearing officer reversed the suspension because (1) the MOS had erroneously applied the deadly force rather than the non-deadly force standard to Johnson’s conduct, and (2) the MOS had failed to present sufficient evidence to create a reasonable inference that finding a violation of RR-306 was correct.

The City appealed to the Civil Service Commission (Commission). The Commission reversed the hearing officer. The district court affirmed the Commission.

On appeal, Johnson contended that the Commission abused its discretion when it made its own findings of fact from a video recording of events at issue and rejected contrary facts found by the hearing officer. The “video exception” was created in a prior Commission case and is described as “statements an officer makes in direct contradiction to objectively verifiable facts in an otherwise authenticated video of the scene are not entitled to a presumption of truth.” Both the Denver City Charter’s and the Denver Civil Service Commission Rules’ standards of review govern the Commission’s review of the MOS’s order and the hearing officer’s findings, and they require the Commission to defer to the hearing officer’s findings of fact. They do not address a video exception, which is beyond the Commission’s authority to make. The video exception is contrary to law and invalid, and both the Commission and district court erred in relying on it to reverse the hearing officer’s decision.

The Court of Appeals further held that the Denver Police Department’s use of force policy articulates a single standard for reviewing an officer’s use of force and that separate standards do not exist for deadly and non-deadly force. Accordingly, the Commission correctly determined that the hearing officer erred in her application of the use of force standard.

Despite finding that the Commission erred in relying on the video exception to reverse the hearing officer’s decision, the Commission nevertheless reached the right result because (1) the hearing officer erroneously concluded that separate standards existed for deadly and non-deadly force, and (2) the hearing officer did not properly defer to the MOS’s findings as required by the clearly erroneous standard of review applicable to hearing officers and as set forth in the Commission’s rules. The hearing officer erred in substituting her own findings for those of the MOS.

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Trial Court Did Not Err in Not Allowing Courtroom Gallery to See Sexually Explicit Images of Minors

The Colorado Court of Appeals issued its opinion in People v. Robles-Sierra on Thursday, March 8, 2018.

Child Pornography—Constitutional Law—Sixth Amendment—Public Trial—Distribution—Publishing—File Sharing Software—Expert Testimony—Jury Instruction.

Sheriff’s department detectives found over 600 files of child pornography—in both video recording and still image form—on various electronic devices defendant owned. In each instance, defendant had downloaded someone else’s file to his computer using ARES peer-to-peer file sharing software. Defendant downloaded the files in such a way that other users downloaded hundreds of defendant’s files. Defendant admitted that he’d downloaded and looked at the sexually exploitative material, but stated as a defense that he hadn’t knowingly violated the law because he did not know how ARES software works. A jury found defendant guilty of four counts of sexual exploitation of a child.

On appeal, defendant challenged all the convictions. He first argued that the district court violated his constitutional right to a public trial by closing the courtroom during the presentation of parts of certain exhibits. Two of the prosecution’s witnesses testified about videos and still images taken from defendant’s devices, describing them in graphic terms. Over defense counsel’s objection, the prosecutor displayed the videos and still images using a screen that could be seen by the witnesses and the jurors, but not by anyone in the courtroom gallery. That portion of a trial when evidence is presented should be open to the public, but that right does not extend to the viewing of all exhibits by the public as those exhibits are introduced or discussed. The right concerns the public’s presence during or access to the trial; where no one is excluded from the courtroom, the right is not implicated. Here, the district court didn’t exclude any member of the public during the presentation of the evidence. Because the court didn’t close the courtroom, there wasn’t any violation of defendant’s right to a public trial.

Defendant also challenged all convictions on the basis that the district court erred by allowing the prosecution’s experts to testify to ultimate legal conclusions that were the jury’s sole prerogative to decide. Even assuming all of the challenged testimony was improper, any error fails the plain error test.

Defendant further challenged his two convictions for publishing, offering, or distributing sexually exploitative material because the prosecution’s theories of publishing and distributing were “legally insufficient.” He alleged that the mere downloading of sexually exploitative material to a share-capable file isn’t publication or distribution, and because we don’t know if the jury convicted on either basis or some proper basis, the verdicts on these counts can’t stand. The Court of Appeals analyzed the meaning of “publishing” and “distribution” and concluded that defendant’s downloading of sexually exploitative material to his computer using peer-to-peer file sharing software, and his saving of that material in sharable files or folders accessible by others using the same software, constituted both publishing and distributing the material within the meaning of the statute.

Finally, defendant challenged his two convictions for publishing, offering, or distributing sexually exploitative material because the jury instruction defining “offer” had the effect of directing a verdict against him on these charges. Here, the instruction was an accurate statement of the law and described a factual circumstance that would constitute an offer. The fact that the jury could have found that factual evidence existed from the evidence presented doesn’t mean the instruction directed a verdict.

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.