December 18, 2018

Colorado Court of Appeals: Supreme Court’s Complicity Reasoning in Rosemund Does Not Apply to Colorado’s Complicity Statute

The Colorado Court of Appeals issued its opinion in People v. Sandoval on Thursday, November 15, 2018.

Criminal Law—Complicity—Jury Instructions—Demonstrative Evidence—Partial Reconstruction—Prosecutorial Misconduct.

Brown agreed to sell her friend Goggin five pounds of marijuana, which he intended to sell to Sandoval. Brown delivered the marijuana to Goggin and his girlfriend. Sandoval arrived, accompanied by his cousin Palacios. Sandoval, Palacios, and Goggin each had guns, and after a struggle Goggin was fatally shot. Palacios grabbed the marijuana and ran to the vehicle outside where Sandoval was waiting. Sandoval was found guilty of one count of murder in the first degree, one count of aggravated robbery, two counts of accessory to crime, and one count of felony menacing.

On appeal, Sandoval contended that the trial court violated his constitutional right to due process when it declined to instruct the jury in accordance with Rosemond v. United States, 572 U.S. 65 (2014), that an alleged felony murder complicitor must know in advance of the occurrence of the predicate felony that another participant intends to commit. Sandoval alleged that, because he was unaware of his cousin’s intent to rob and kill Goggin before the crimes occurred, he was not guilty of robbery and felony murder. However, Rosemond relied on language in the federal aiding and abetting statute that is not present in Colorado’s complicity statute; thus Rosemond does not apply to Colorado’s complicity statute, and Sandoval’s due process rights were not violated.

Sandoval also asserted that the trial court violated his constitutional rights to a fair trial and impartial jury when it allowed the prosecutor to use a partial reconstruction of the crime scene as a demonstrative aid to assist witnesses in explaining their testimony. Here, (1) the partial reconstruction was authenticated by the prosecution’s criminalist; (2) the demonstrative aid was relevant because it assisted the jury in understanding Brown’s testimony; and (3) though the prosecution conceded that there were discrepancies in the partial reconstruction, those discrepancies were disclosed to the jury and Sandoval had an opportunity to cross-examine the prosecution’s criminalist about them. Thus, the trial court did not abuse its discretion in determining that the reconstruction was a fair and accurate representation of the crime scene. Further, the trial court did not abuse its discretion in finding that the probative value of the partial reconstruction was not substantially outweighed by its danger of unfair prejudice. Sandoval’s rights were not violated.

Sandoval further alleged that the prosecutor committed misconduct by misstating the law of complicity as well as key evidence to undermine the defense. The prosecutor’s statements were fairly based on the evidence presented and the inferences drawn were not inappropriate. There was not improper conduct that would warrant reversal.

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Failure to Give Jury Instruction on “Penetration” Not Plain Error where Fact Not At Issue

The Colorado Supreme Court issued its opinion in People v. Lozano-Ruiz on Monday, October 29, 2018.

Plain Error—Criminal Jury Instructions.

In this case, the supreme court reviewed the trial court’s reversal of a sexual assault conviction for failure to provide a jury instruction containing the statutory definition of “sexual penetration.” The court concluded that because the question of whether sexual penetration had occurred was not a contested issue at trial, the county court did not plainly err by failing to give a corresponding instruction to the jury. Accordingly, the court reversed the trial court’s order and affirmed Lozano-Ruiz’s conviction.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Make-My-Day Law Requires that Trespass Be Committed “Knowingly”

The Colorado Court of Appeals issued its opinion in People v. Jones on Thursday, August 8, 2018.

Criminal Law—Make-My-Day Statute—Mens Rea—Self-Defense—Use of Physical Force—Jury Instructions.

Late one night Jones opened the unlocked door of an apartment located in a large, gated apartment complex. He turned on the hall light and walked into one of the bedrooms. The apartment was occupied by two brothers and their two cousins (the homeowners). Jones and the homeowners had never met each other. Jones and the occupants fought until Jones was finally subdued. At trial, Jones argued that he had entered the apartment by mistake, and when the homeowners used force against him, he justifiably defended himself using the knife he carried for protection. A jury convicted Jones of one count of second degree assault and one count of third degree assault.

On appeal, Jones contended that the trial court erred in instructing the jury that the make-my-day statute is triggered upon any unlawful entry into a dwelling, rather than upon a “knowingly” unlawful entry, and as a result the erroneous make-my-day instruction negated his otherwise valid claim of self-defense. When the make-my-day statute applies it operates as a bar to a trespasser’s claim of self-defense, so if it applied here, Jones would not be justified in using physical force against the homeowners. An instruction clarifying the meaning of “unlawful entry” is necessary where the evidence supports a theory that the defendant accidentally entered the dwelling or otherwise entered without the requisite mental state. Here, the court erred in failing to instruct the jury that the make-my-day statute’s unlawful entry element requires that the unlawful entry be made knowingly. Additionally, the instructional error was not harmless. The evidence supported Jones’s theory that he entered the apartment accidentally under the mistaken belief that he was entering the apartment of his cousin, who lived in the complex. Therefore, the language of the make-my-day instruction improperly abridged Jones’s claim of self-defense and created a reasonable probability that the jury could have been misled in reaching a verdict.

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

Summary provided courtesy of Colorado Lawyer.

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.