July 21, 2019

Colorado Court of Appeals: Evidence of Defendant’s Gang Membership Admissible to Show Motive

The Colorado Court of Appeals issued its opinion in People v. Clark on Thursday, April 23, 2015.

Murder—Evidence—Gang Membership—Collateral—Fifth Amendment Privilege—Prior Consistent Statement—Jury Instruction—Complicity—Juror Misconduct.

After getting into an altercation at a club on New Year’s Eve, defendant and Daniel Harris fired gunshots aimed at an oversized limousine, which left Darrent Williams, a member of the Denver Broncos football team, dead; two additional people wounded; and fourteen others uninjured but shaken. A jury found defendant guilty of one count of murder (extreme indifference), one count of murder (after deliberation), sixteen counts of attempted first-degree murder, two counts of second-degree assault, sixteen counts of violent crime, and one count of possession of a weapon by a previous offender.

On appeal, defendant argued that the court erred by admitting evidence and testimony regarding his gang membership, as well as expert testimony about gang origin, structure, psychology, hierarchy, and presence in Denver. Because defendant’s gang affiliation had motivated him to participate in the shooting, this evidence was admissible to show motive.

Defendant asserted that the trial court abused its discretion by precluding certain lines of inquiry during his cross-examination of three witnesses. It was not an abuse of discretion to prohibit cross-examination of the factual details underlying other incidents because this information was collateral and inadmissible. Further, defense counsel had already established that the witnesses had been dishonest in the past.

Defendant asserted that the trial court erred in its handling of two witnesses who refused to answer questions based on the Fifth Amendment’s privilege against self-incrimination. It was not an abuse of discretion for the trial court to grant Bragg’s (Harris’s brother) motion to quash the subpoena to testify before subjecting him to questioning in front of the jury. Additionally, it was not error for the court to sustain Harris’s invocation of the Fifth Amendment privilege because it was at least possible that his response could have incriminated him.

Defendant contended that the trial court abused its discretion by admitting the entire videotaped interview of Harris as a prior consistent statement. Because the court gave defense counsel extensive leeway to attack Harris’s credibility with respect to his testimony in this case and his prior interactions with police officers, admission of the entire video was necessary to give the jury the full picture of what he had said to the police.

Defendant additionally argued that the prosecution violated his due process rights because it knowingly used Harris’s false evidence to obtain his conviction, and the prosecution improperly argued inconsistent factual theories. However, there is no evidence of perjury in the record, and the trial court did not err by allowing the prosecution to present alternative legal theories in this single trial involving this single defendant.

Defendant asserted that certain jurors’ actions occurring during trial constituted juror misconduct. The affidavit tendered by defendant contained hearsay evidence that two jurors had conducted experiments on their own to weigh some of the evidence, and that an alternate juror who was removed from the case had communications with a deliberating juror about the case. Although the affidavit was based on hearsay, the trial court erred by not considering the allegations set forth in the affidavit when it denied defendant’s motion for a new trial without a hearing. Therefore, the case was remanded for an evidentiary hearing on the issue of juror misconduct.

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

Colorado Court of Appeals: Three Counts of Perjury Arose from Essentially Identical Statements During Same Interrogation So Double Jeopardy Applied

The Colorado Court of Appeals issued its opinion in People v. Zadra on Thursday, October 24, 2013.

Perjury—False Reporting—Official Misconduct—Discovery Violations—Motion to Suppress Statements—Verdict Forms—Multiplicitous—Double Jeopardy.

Defendant appealed the judgment of conviction entered on jury verdicts finding her guilty of three counts of official misconduct, one count of false reporting, and seven counts of perjury. She also appealed her sentence. The judgment and sentence were affirmed in part, reversed in part, and vacated in part.

There were ten contentions before the Court of Appeals. The Court affirmed on all counts except counts 9 and 10, which were merged into the conviction of count 6.

Defendant first contended that the district court erred by denying her counsel’s motions to dismiss the case as a sanction for the prosecution’s discovery violations. Because there was no evidence that the prosecution’s conduct was willful and a continuance was granted to allow defendant sufficient time to review the late discovery, the court did not abuse its discretion in denying defendant’s motion to dismiss the case.

Defendant contended that the district court erred by denying her motion to suppress statements she made in two interrogations. Defendant voluntarily came to the police station unescorted, signed a written consent for the polygraph examination, and was free to leave at any time. Therefore, the interrogation was not custodial and her statements were voluntary.

Defendant contended that there was insufficient evidence to support her convictions. Defendant argued that the wording of the verdict forms assumed that she had committed the alleged acts giving rise to the charges, constituting plain error. In light of the other instructions and the overwhelming evidence, the presumed errors did not so undermine the fundamental fairness of the trial as to cast serious doubt on the reliability of the judgment of conviction.

Defendant argued that her seven perjury convictions and one of her convictions for official misconduct are multiplicitous and therefore violate constitutional prohibitions against double jeopardy. Because counts 6, 9, and 10 were established by identical proof, these counts were multiplicitous and the convictions on and sentences for all three counts were reversed.

Summary and full case available here.