July 22, 2018

Colorado Court of Appeals: Trial Court Must Determine Whether Retrospective Competency Evaluation Feasible

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

Competency—Jury Instructions—Unanimity Instruction.

Lindsey persuaded six individuals to invest $3 million in new technology that would allegedly use algae-based bioluminescent energy to light signs and panels. Lindsey told his investors that he had contracts to sell his new technology. Neither the technology nor the contracts ever existed, and Lindsey allegedly spent the money on repaying other investors and on personal expenses. A jury convicted Lindsey of eight counts of securities fraud and four counts of theft.

On appeal, Lindsey contended that the trial court erred in refusing to order a competency evaluation where the issue was raised by his counsel’s motion before trial. Here, the trial court failed to comply with the statutory procedure. The motion was facially valid, and the trial court abused its discretion in concluding that a facially valid motion on competency did not fall under the competency statute.

Lindsey next argued that the trial court erred by (1) instructing the jury that “any note” constitutes a security, and (2) giving an improper unanimity instruction. As to the first argument, Lindsey’s trial was conducted before People v. Mendenhall, 2015 COA 107M. In the event of retrial, the trial court and parties should apply Mendenhall’s four-factor test in crafting new jury instructions. As to the second contention, regarding Count 6, which included three separate transactions, the unanimity instruction should be modified to specify that the jury must agree unanimously that defendant committed the same act or that defendant committed all of the acts included within the period charged.

The judgment was vacated and the case was remanded with directions.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Jury Instruction that Effectively Told Jury Not to Consider Burden of Proof Erroneous, but Error Not Plain

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

Jury Instructions—Involuntary Intoxication—Other Acts Evidence—Merger—Colorado Sex Offender Lifetime Supervision Act.

Sabell and his girlfriend, the victim, got into an argument one night. When the victim returned to the couple’s home that evening after running errands, Sabell accused her of cheating on him and physically assaulted her. The victim then began audio recording the altercation on her cell phone. Sabell then forced the victim to perform oral sex on him and later broke down her bedroom door after she had locked herself inside. A jury found Sabell guilty of sexual assault, unlawful sexual contact, third degree assault, and criminal mischief.

On appeal, Sabell contended that the trial court erroneously instructed the jury on his affirmative defense of involuntary intoxication and that this lessened the prosecution’s burden of proof. Before trial, the victim admitted that she had put Seroquel, a drug she had been prescribed, in Sabell’s wine after the sexual assault in an attempt to sedate him. Sabell testified that the victim had put the Seroquel in his drink before the recording began and that he had no memory of any of the recorded events. Although the involuntary intoxication instruction was erroneous because it effectively told the jury not to consider the People’s burden of proof until after it first decided whether Sabell’s intoxication was self-induced, it was not plain error.

Sabell also contended that the trial court gave an erroneous instruction limiting the jury’s consideration of other acts evidence. At trial, the victim, along with the victim’s friend and police officers, testified about four other incidents in which Sabell had been violent toward her or had forced her to have sex. The other acts evidence was relevant as to whether Sabell acted knowingly and voluntarily, and the court properly gave limiting instructions to the jury. There was no error.

Sabell’s contention that the Colorado Sex Offender Lifetime Supervision Act is unconstitutional on its face and as applied to him was without merit.

Sabell further argued, and the People conceded, that his unlawful sexual contact conviction should have merged with the sexual assault conviction at sentencing because they were based on the same conduct. The trial court plainly erred in entering both the sexual assault and unlawful sexual contact convictions.

Sabell also argued, and the People conceded, that the trial court erred in imposing a crime against a child surcharge of $500. The victim here was not a child, and the trial court plainly erred.

The unlawful sexual contact conviction and the crime against a child surcharge were vacated. The case was remanded for the trial court to correct the mittimus. The judgment and sentence were affirmed in all other respects.

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: Self-Defense Instruction Warranted if Evidence Shows Defendant Acted in Self-Defense

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

Second Degree Murder—Self-Defense—Jury Instruction—Voluntary Statements—Photographic Evidence.

Defendant and the victim were longtime friends, and the victim was visiting defendant from out of state. The victim and defendant argued and were involved in a series of increasingly violent physical fights. Defendant shot the victim, killing him. Right after the shooting defendant indicated to two people that he had acted in self-defense. Defendant testified at trial that when the victim stepped forward and reached for the shotgun defendant was holding, defendant pulled the gun up and away from the victim’s reach, and the gun “went off.” According to defendant, he thought that the victim was going to grab the gun and hurt him with it. Defendant maintained that he did not intend to shoot or hurt the victim. Defendant was tried for first degree murder, but was convicted of the lesser included offense of second degree murder.

On appeal, defendant first argued that the trial court erred by declining to give his tendered jury instruction on self-defense. Article II, section 3 of the Colorado Constitution recognizes the right of a person to act in self-defense, and under binding case law, when a defendant presents at least a scintilla of evidence in support of a self-defense instruction, the court must instruct the jury on self-defense. Here, defendant’s claim of accident in the course of self-defense was not so inconsistent as to deprive him of the right to have the jury instructed on self-defense, and counsel’s tendering of the self-defense instruction was sufficient to preserve the issue for appeal. The trial court’s error warrants reversal of the conviction.

Defendant also argued that the trial court erred by declining to suppress statements he made to both a private security guard and the police following his apprehension. The trial court did not err in declining to suppress the statements under Miranda v. Arizona because they were (1) made to a private security guard and not subject to Miranda; (2) based on Miranda’s public safety exception; or (3) volunteered and therefore not the product on an interrogation. However, the trial court did not make the required findings as to whether defendant’s statements to the police warranted suppression because of defendant’s assertion that the statements were involuntary.

Defendant further argued that the trial court erred by admitting photographs showing a large amount of marijuana in his apartment. Because the probative value of this evidence was substantially outweighed by the danger of unfair prejudice, it should have been excluded under CRE 403, and the court erred in admitting the photos.

The judgment of conviction was reversed and the case was remanded for a new trial. On remand, the court must conduct an evidentiary hearing on the voluntariness and admissibility of defendant’s statements to the police officers, and photos depicting marijuana should be excluded from evidence.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Trial Court Erred in Omitting Jury Instruction on Right Not to Testify, but Reversal Not Required

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

Sexual Assault—Child—Jury Instruction—Right Not to Testify—Hearsay.

Defendant was found guilty of two counts of sexual assault on a child.

On appeal, defendant contended that the district court erred by rejecting his tendered jury instruction on his right not to testify and by failing to instruct the jurors immediately before closing arguments of his constitutional right not to testify. The trial court did not err in choosing to give the jury the pattern jury instruction on defendant’s right not to testify because defendant’s proposed instruction went beyond the language of the pattern instruction. However, the trial court had an obligation to instruct jurors about defendant’s right not to testify before the attorneys made their closing arguments. Although the court violated Crim. P. 30 by not reading the instruction to the jury before closing argument, the court properly instructed jurors on defendant’s right not to testify during voir dire and reminded the sworn jurors of its earlier remarks. Reversal isn’t warranted because the error doesn’t cast serious doubt on the reliability of the judgment of conviction.

Defendant also argued that the district court erred by admitting into evidence the victim’s out-of-court statement to a Sexual Assault Nurse Examiner (SANE nurse) that defendant had been “kicked out of the house.” Defendant argued that by saying he got kicked out of the house, the victim implied that her mother had kicked him out because of the victim’s allegations, which implied that the victim’s mother believed those allegations. Even assuming that the statement was inadmissible hearsay, any error in allowing it was harmless because any inferences defendant drew from the statement were speculative, and the victim’s mother testified that she did not believe the victim.

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Denial of Defendant’s Requested Lesser Included Offense Instruction Not Harmless Error

The Colorado Supreme Court issued its opinion in People v. Rock on Monday, September 11, 2017.

Criminal Law—Lesser Included Offenses.

The People sought review of the court of appeals’ judgment reversing Rock’s convictions for second degree burglary and theft. The trial court denied Rock’s request for an additional, lesser included offense instruction on second degree criminal trespass on the ground that second degree criminal trespass is not an included offense of second degree burglary. The supreme court affirmed the court of appeals’ reversal. The court held that (1) the district court erred in denying Rock her requested instruction on second degree criminal trespass on the ground that it was not a lesser included offense of the charged offense of second degree burglary, and (2) erroneously denying Rock’s requested instruction was not harmless with regard to either of her convictions.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Court of Appeals Misconstrued Meaning of “Deadly Physical Force”

The Colorado Supreme Court issued its opinion in People v. Opana on Tuesday, May 30, 2017.

Criminal Trials.

The People petitioned for review of the court of appeals’ judgment reversing Opana’s conviction for second degree murder in the shooting death of one of his housemates. See People v. Opana, No. 10CA1987 (Colo. App. May 29, 2014). The district court instructed the jury as to the use of deadly physical force in defense of one’s person. In consideration of the statutory definition of the term “deadly physical force,” which limits the applicability of the term to “force, the intended, natural, and probable consequence of which is to produce death,” the court of appeals determined that there was adequate evidence produced at trial for the jury to have found that Opana used physical force not rising to the level of “deadly” physical force, and it concluded that in this case the failure of the trial court to instruct the jury, sua sponte, on the use of physical force generally amounted to plain error.

The supreme court reversed the judgment of the court of appeals and remanded the case for consideration of defendant’s remaining assignments of error because the court of appeals misconstrued the definition of “deadly physical force,” and when that statutory term is properly construed, the evidence at trial did not support an instruction on self-defense predicated on the use of other-than-“deadly” physical force.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: No Error in Failing to Specify Which Act Furthered Conspiracy

The Colorado Court of Appeals issued its opinion in People v. Davis on Thursday, May 4, 2017.

Wiretapping—Conspiracy—Habitual Criminal—Unanimity Instruction—Single Transaction—Limiting Instruction—Prior Conviction—Jury.

After an investigation that entailed wiretapping defendant’s telephones, defendant was charged with one count of conspiracy to distribute a schedule II controlled substance (methamphetamine) and several habitual criminal counts. A jury convicted defendant of the conspiracy charge, and the district court, after finding that defendant was a habitual criminal, sentenced him to 48 years in the custody of the Department of Corrections.

On appeal, defendant contended that the district court erred in not requiring the prosecution to elect the overt act on which it was relying to prove the conspiracy charge. When the People charge a defendant with crimes occurring in a single transaction, they do not have to elect among the acts that constitute the crime, and a special unanimity instruction need not be given. A defendant can participate in a number of crimes or events to accomplish a single conspiracy. Here, the actions occurred in a relatively short time frame, evidence of defendant’s phone conversations with one person primarily established the conspiracy, and all the overt acts on which the jury could have relied were done in furtherance of the same unlawful objective. Therefore, the evidence presented in this case showed one criminal episode, and hence one conspiracy. Further, though the prosecution alleged numerous overt acts in furtherance of the single conspiracy, that did not require unanimous agreement by the jurors as to the precise overt act defendant committed. Therefore, the district court did not err, much less plainly err, in failing to require an election or to give the jury a special unanimity instruction.

Defendant also contended that the district court erred in not providing a limiting instruction to preclude the jury from considering witnesses’ guilty pleas or desires to plead guilty as evidence of his guilt. Here, defendant did not request a limiting instruction, and a trial court’s failure to give a limiting instruction sua sponte does not constitute plain error.

Lastly, defendant contended that his rights to a trial by a jury and to due process of law were violated when the judge, instead of a jury, found that he had been convicted of three prior felonies. The fact of a prior conviction is expressly excepted from the jury trial requirement for aggravated sentencing. Therefore, there was no error.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Trial Court Did Not Err in Refusing to Poll Jurors about Prejudicial News Report

The Colorado Supreme Court issued its opinion in People v. Jacobson on Monday, April 24, 2017.

Criminal Law—Jury Prejudice—Jury Polling— Prejudicial News Reports.

The Colorado Supreme Court determined whether a trial court abused its discretion by refusing to poll the jury about whether jurors had seen a prejudicial news report that had aired the night before and was available online. Because the trial court gave repeated, specific admonitions to jurors to avoid “newscasts” and “newspaper sites” (including on the day of the newscast), and these were the only places on which the prejudicial report was available, the court held that the trial court did not abuse its discretion when it refused to poll jurors. Therefore, the supreme court reversed the court of appeals’ judgment and affirmed defendant’s conviction.

Summary provided courtesy of The Colorado Lawyer.

Tenth Circuit: Mens Rea Element Applies to Both Chemical Composition Issue and Substantial Similarity Issue

The Tenth Circuit Court of Appeals issued its opinion in United States v. Makkar on Monday, November 23, 2015.

Iqbal Makkar and Gaurav Sehgal ran a small town convenience store in Oklahoma. Law enforcement authorities questioned Makkar and Sehgal about some of the incense they carried at the store, and the owners offered to allow the officers to test it and stop carrying the incense while it was tested. However, despite their cooperation, federal authorities indicted and convicted Makkar and Sehgal of violation of the Controlled Substances Analogue Enforcement Act. On appeal, Makkar and Sehgal argued that the jury instructions incorrectly stated the elements of the offense and that the district court erred in granting the government’s motion in limine to exclude evidence of their cooperation. The Tenth Circuit agreed with both arguments.

The Tenth Circuit first discussed the Analogue Act and the Supreme Court’s recent ruling in McFadden v. United States, 135 S. Ct. 2298 (2015), in which the Supreme Court accepted the government’s concession that to prove that a drug violates the Analogue Act it must (1) be substantially similar in chemical structure to a schedule I or II controlled substance, and (2) have, or be intended to have, a similar effect on the central nervous system as a schedule I or II controlled substance. The government further acknowledged that the defendant knew the drug he possessed had both features or was controlled by the CSA or Analogue Act. The Tenth Circuit compared the Analogue Act to the residual clause of the Armed Career Criminal Act, noting that it was an open question whether the Analogue Act would survive a constitutional vagueness challenge.

Turning to Makkar and Sehgal, the Tenth Circuit noted that at trial, the government did not introduce evidence that defendants knew the incense was substantially similar in chemical structure to marijuana, only that they knew it had a substantially similar effect to marijuana. The district court allowed the government’s proposed instruction that the mens rea element regarding the chemical structure could be inferred from the effect. This was in error because it relieved the government of its burden of proof and also eliminated one of the elements of the charged offense. The Tenth Circuit rejected the government’s argument that the error was not plain, and also that the DEA effectively rejected the government’s inference instruction by concluding that the drug in the incense does not have a substantially similar chemical structure to marijuana. Finding that the error prejudiced defendants and impaired their right to a fair trial, the Tenth Circuit reversed the convictions.

Next, the Tenth Circuit addressed Sehgal’s argument that the district court erred in granting the government’s motion in limine to exclude evidence of the defendants’ cooperation with law enforcement during the investigation. The Tenth Circuit agreed, finding that the evidence was entirely relevant to determine whether defendants possessed the requisite mens rea to form a violation of the Analogue Act, and the district court erred by effectively bypassing the mens rea element.

The Tenth Circuit reversed Makkar’s and Sehgal’s convictions, expressing doubts as to whether the men could be retried under the Analogue Act.

Colorado Court of Appeals: District Court Reasonably Relied on Appellate Ruling in Applying Extraordinary Risk Enhancer

The Colorado Court of Appeals issued its opinion in People v. Baca on Thursday, October 22, 2015.

Reasonable Doubt—Voir Dire—Due Process—Burden of Proof—Admission of Evidence—Extraordinary Risk—Sentencing.

Griego attempted to rob a liquor store at gunpoint. After exchanging gunfire with the store’s clerk, Griego was shot while fleeing the store. He was then transported to the hospital and arrested. Months later, Griego and his attorney met with authorities and told them that defendant had put him up to the robbery as part of a gang initiation. Defendant was convicted of attempted second-degree murder, conspiracy to commit second-degree murder, attempted aggravated robbery, and conspiracy to commit aggravated robbery for his role in planning and encouraging Griego’s commission of the offense.

On appeal, defendant contended that the court’s reasonable doubt analogy during the court’s voir direviolated his due process rights by lowering the prosecution’s burden of proof and allowing the jury to convict on something less than proof beyond a reasonable doubt. However, the court twice read the proper reasonable doubt instruction to the jury and provided it with a written copy. Even assuming the court committed error in its voir dire, the jury was adequately informed of the law, and it is presumed that the jury followed these instructions. Therefore, the court’s comments on reasonable doubt do not require reversal.

Defendant also contended that the court abused its discretion in refusing to admit the telephone call between Griego and his mother during which Griego admitted that he had “done his dirt” to become a Blood. However, the court never ruled on whether defense counsel could impeach Griego with the recorded call, and defense counsel failed to pursue admission of the evidence. Further, the defense investigator could not present the proper foundation for admission of the call because he was not a party to the call, present during the call, or familiar with the recording process. Therefore, the trial court did not err in excluding this evidence.

Finally, because defendant was not convicted of a crime of violence as defined in CRS § 18-1.3-406, the district court erred in applying the extraordinary risk sentencing provision to defendant’s attempted second-degree murder and conspiracy to commit second-degree murder convictions. However, the error was not obvious. The judgment and sentence were affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Tenth Circuit: Witness Tampering Charges Affirmed Where Potential Witness Told to Lie About the Important Stuff

The Tenth Circuit Court of Appeals issued its opinion in United States v. Sparks on Friday, June 26, 2015.

Gary Sparks’ daughter, Stacy Ashley, was imprisoned pending trial on charges of distribution of a controlled substance with death resulting. H.L., Ms. Ashley’s daughter, was supposed to testify at trial that she saw her mother and the deceased exchange pills on the night the man overdosed. Three weeks before trial, Sparks took his granddaughter, H.L., to visit her mother in jail, and after seeing Ms. Ashley they went to dinner. H.L. reported that at dinner, Sparks told her “I heard you should only lie about the important stuff,” but Sparks said he only told her that everything would be okay and reassured her to have faith. H.L. never testified at her mother’s trial, but prosecutors eventually learned about the exchange with her grandfather and charged Sparks with two counts of witness tampering. Sparks was convicted and sentenced to 36 months’ imprisonment followed by two years of supervised release. Sparks appealed, arguing the evidence was insufficient to support his conviction and the jury was not properly instructed on an affirmative defense.

The Tenth Circuit first evaluated Sparks’ sufficiency claim. Sparks argued the evidence was insufficient to support his conviction because the phrase “you should only lie about the important stuff” was insufficient to qualify as an attempt to corruptly persuade. Sparks said that because he did not direct his granddaughter to lie he could not have “persuaded” her to do so. The Tenth Circuit disagreed. Analyzing the meaning of the word “persuade” in context of its prior precedent, the Tenth Circuit found no need for “an act, a threat, an emotional appeal, or persistent pleading” in order for a statement to be viewed as persuading. The Tenth Circuit found ample evidence to support the jury’s conviction based on the familial relationship, the proximity of the trial, and the timing of the statement right after seeing H.L.’s mother in jail.

Turning to Sparks’ contention that the jury was not properly instructed on the affirmative defense that his conduct consisted solely of lawful conduct encouraging the witness to testify truthfully, the Tenth Circuit again affirmed the district court. The Tenth Circuit found Sparks’ argument failed at the first prong of plain error review, because even viewing the evidence in the light most favorable to Sparks he did not encourage H.L. to testify truthfully.

The Tenth Circuit affirmed Sparks’ convictions.