August 25, 2019

Colorado Supreme Court: Evidence of Guilt Overwhelming so Any Error in Failing to Discharge Alternate Juror was Harmless

The Colorado Supreme Court issued its opinion in James v. People on Monday, September 17, 2018.

Jury Deliberations—Conduct Affecting Jurors—Risk of Prejudice—Harmless Error.

James sought review of the court of appeals’ judgment affirming his conviction for possession of methamphetamine. Upon realizing that it had failed to discharge the alternate juror before the jury retired to deliberate, the district court recalled and dismissed the alternate, instructed the jury to continue with deliberations uninfluenced by anything the alternate may have said or done, and denied the defense motion for dismissal or mistrial. The court of appeals concluded that the trial court’s error in allowing the alternate juror to retire with the jury and the juror’s presence for part of the deliberations were harmless beyond a reasonable doubt and, after rejecting James’s other assignments of error, affirmed his conviction. The supreme court held that the evidence proving defendant’s guilt of the offense of possession was overwhelming, and therefore the district court’s failure to recall an alternate juror for approximately 10 minutes amounted, under the facts of the case, to harmless error. Accordingly, the judgment of the court of appeals was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Remedy for Trial Court’s Disclosure Error to Remand and Allow Defendant Opportunity to Demonstrate Prejudice

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

Disclosure—In Camera Review—Critical Stage.

The supreme court held that when an appellate court determines that the trial court erred in failing to disclose certain documents from a file reviewed in camera, the proper remedy is to remand the case to the trial court with instructions to provide the improperly withheld documents to the parties and to afford the defendant an opportunity to demonstrate that there is a reasonable probability that, had the documents been disclosed before trial, the result of the proceeding would have been different. The court also held that, even if the court of appeals erred in determining that replaying a small portion of a recording in the courtroom during deliberations was not a critical stage of the proceeding that required defendant’s presence, any error in failing to secure defendant’s attendance was harmless beyond a reasonable doubt.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: No Reasonable Probability that Failure to Instruct Jury on Recklessness Contributed to Conviction

The Colorado Supreme Court issued its opinion in People v. Roman on Monday, June 19, 2017.

Jury Instructions—Lesser Included Offenses—Harmless Error.

The People sought review of the court of appeals’ judgment reversing Roman’s conviction for first degree assault. The trial court instructed the jury on the lesser included offense of second degree assault committed by intentionally causing bodily injury with a deadly weapon, but it denied Roman’s request for an additional lesser-included-offense instruction on second degree assault committed by recklessly causing serious bodily injury with a deadly weapon. The court of appeals reversed, concluding both that the trial court erred in denying Roman’s requested additional lesser-included-offense instruction and that the error was not harmless.

The supreme court reversed the judgment of the court of appeals. In light of the evidence presented at trial and the instructions actually provided to the jury, there was no reasonable possibility that the failure to instruct on reckless second degree assault contributed to defendant’s conviction of first degree assault. Any error in that regard would therefore have been harmless.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Aggravated Sentence Upheld Where Jury Would Have Found Supporting Facts

The Colorado Court of Appeals issued its opinion in People v. Mountjoy on Thursday, June 2, 2016.

Consecutive Sentencing—Aggravated Range—Jury—Evidence.

Defendant was convicted of manslaughter, illegal discharge of a firearm (reckless), and tampering with physical evidence. The trial court imposed a sentence in the aggravated range on each count, to be served consecutively.

On appeal, defendant first contended that each of his aggravated range sentences violated Apprendi v. New Jersey and Blakely v. Washington. Answering a novel question, the court of appeals determined that if a trial court sentences in the aggravated range based on facts not found by a jury, the sentence may be affirmed based on harmless error if the record shows beyond a reasonable doubt that a reasonable jury would have found those facts had the jury been requested to do so by special interrogatory. Based on the overwhelming evidence of guilt in this case, a jury would have found the facts on which the trial court relied in imposing aggravated range sentences, and therefore any error was harmless beyond a reasonable doubt.

Defendant also contended that the trial court abused its discretion in sentencing him consecutively on each conviction. A trial court may impose either concurrent or consecutive sentences where a defendant is convicted of multiple offenses. But when two or more offenses are supported by identical evidence, the sentences must run concurrently. Here, separate acts supported defendant’s convictions for manslaughter and illegal discharge of a weapon. Further, the facts supporting the tampering with evidence conviction did not involve the same acts as either the illegal discharge or manslaughter convictions. Because the record shows that each conviction was supported by distinct evidence, the trial court did not abuse its discretion in imposing consecutive sentences.

The sentences were affirmed.

Summary provided courtesy of The Colorado Lawyer.

Tenth Circuit: Sentence Upheld Because of District Court’s Detailed Findings About its Reasonableness

The Tenth Circuit Court of Appeals issued its opinion in United States v. Snowden on Friday, November 27, 2015.

Blake Snowden was a sales rep for Onyx, M.D., Inc. until his termination in August 2010. Onyx is a physician staffing agency that specializes in placing physicians in hospitals and clinics for short terms. Onyx uses a database program called Bullhorn, which it considers a competitive advantage. When Snowden was fired from Onyx, he decided to compete with Onyx in physician placement, and he obtained an Onyx executive’s password in March 2011 and used it to create his own Bullhorn account. Over the next few months, Snowden logged into Bullhorn dozens of times and copied gigabytes of data. He also intercepted emails of four Onyx executives. However, his efforts were unsuccessful; they neither benefited nor harmed Onyx’s business. When Onyx discovered the hack, the FBI traced it to a computer at Snowden’s address. Onyx’s only loss from the hack was about $25,ooo in legal fees and lost employee time related to the hack.

Snowden eventually pleaded guilty to unlawfully obtaining information from a protected computer and intercepting emails. The district court applied a 16-level enhancement based on its estimated loss of the cost of developing the database, $1.5 million, and calculated his Guidelines range as 41-51 months. However, the district court varied downward and sentenced him to 30 months. The court specifically found that it would apply a 30-month sentence no matter what, even if its Guidelines calculation was held to be incorrect on appeal.

The Tenth Circuit was skeptical about the district court’s assumption of $1.5 million in losses, although it understood the court’s reasoning. The Tenth Circuit found that had the district court limited its loss calculation to Onyx’s actual loss of approximately $25,000, the resulting Guidelines range would have been 8-14 months. However, it found any error harmless because of the district court’s detailed and unusual findings about what it considered to be a proper sentence for Snowden’s crime. The court specifically noted that it would vary upward to 30 months if the Guidelines range was too high and would vary downward to 30 months if the Guidelines range was too low. Because of these specific findings, the Tenth Circuit affirmed the district court’s sentence.

The Tenth Circuit affirmed the sentence but reversed and remanded for the correction of the restitution award to the parties’ undisputed proposed restitution amount.

Tenth Circuit: Defendant’s Own Prejudicial Conduct to Jury Member Does Not Warrant Mistrial

The Tenth Circuit Court of Appeals issued its opinion in United States v. Shaw on Friday, July 11, 2014.

Defendant Charles Shaw was convicted in the U.S. District Court for the District of Kansas of robbing a bank and two credit unions, attempting to rob one of the credit unions a second time, and four firearms-related offenses. He was acquitted on a charge of robbing a second bank. During jury selection, Defendant mouthed “call me” to a juror and made a gesture like a phone to his ear with his hand. At trial, testimony was admitted regarding a co-defendant’s confession on the charge of which he was acquitted, and evidence was admitted regarding an uncharged bank robbery. Defendant appealed his convictions to the Tenth Circuit, alleging (1) the jury was not impartial because they learned of the gesture he made to one member of the jury pool, (2) the district court erred by admitting evidence regarding the co-defendant’s confession at a different trial, (3) the district court erred by admitting evidence of the uncharged bank robbery, and (4) the court at sentencing, not the jury, found he had previously been convicted of a firearms offense.

The Tenth Circuit examined the trial transcripts regarding Defendant’s gesture during jury selection. It found no error, because the juror to whom the gesture was directed had been dismissed, and another potentially biased juror was rehabilitated through questioning. The Tenth Circuit also noted that it shared the district court’s concern regarding declaring a mistrial as a result of Defendant’s own conduct.

Next, the Tenth Circuit reviewed Defendant’s motion in limine asserting error for admitting the testimony regarding his co-defendant’s confession. The Tenth Circuit found that the admission of the testimony violated Defendant’s Sixth Amendment Confrontation Clause rights, but the error was harmless beyond a reasonable doubt because Defendant was acquitted on the sole charge related to this testimony.

The Tenth Circuit then turned its attention to the admission of evidence regarding the uncharged bank robbery, and again found error in the district court’s denial of Defendant’s motion in limine. The Tenth Circuit agreed with Defendant that it was impermissible other bad act evidence under FRE 404(b), but decided this error was also harmless because the evidence was tenuous at best and other evidence of Defendant’s guilt was strong.

Finally, the Tenth Circuit reviewed Defendant’s sentencing challenge. Defendant objected to the trial court’s judicially found fact of his prior firearms conviction, and, although he conceded that Tenth Circuit and U.S. Supreme Court precedent do not support his position, he raised the argument on appeal “to preserve Supreme Court Review.” The Tenth Circuit, following its previous precedent, affirmed Defendant’s sentence and convictions.

Colorado Court of Appeals: Jury Instruction that Omitted Intent Element of Crime Not Harmless Therefore Conviction Reversed

The Colorado Court of Appeals issued its opinion in People v. Ridgeway on Thursday, February 28, 2013.

Possession of Burglary Tools—Intent—Jury Instruction.

Defendant Lewis Ridgeway appealed the judgment of conviction entered on a jury verdict finding him guilty of possession of burglary tools. The judgment was reversed and the case was remanded for a new trial.

Ridgeway was charged with, among other things, second-degree burglary, theft of less than $500, and possession of burglary tools after burglarizing a check-cashing business. Ridgeway argued that the trial court failed to properly instruct the jury regarding the elements of the crime of possession of burglary tools. To convict a defendant for possession of burglary tools, a jury must find beyond a reasonable doubt both that the defendant possessed burglary tools and that he or she had the intent to use them to commit a burglary. Here, the elemental instruction submitted to the jury on possession of burglary tools omitted the intent element of the crime. Because the instructional error was not harmless beyond a reasonable doubt, the judgment of conviction was reversed and the case was remanded for a new trial.

Summary and full case available here.