August 25, 2019

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: Error in Denying Defendant His Tendered Self-Defense Instruction Not Harmless

The Colorado Court of Appeals issued its opinion in People v. Koper on Thursday, September 20, 2018.

Criminal Law—Jury Instructions—Self-Defense—Transferred Intent—Affirmative Defense—Prosecutorial Misconduct.

While at a bar, defendant said something to Abram’s sister that offended Abram. Defendant tried to make amends by offering Abram a beer. Abram responded by punching defendant twice in the face. Defendant then drew his firearm, for which he had a concealed carry permit, and aimed it at Abram. After a short standoff, defendant handed the gun to his fiancée and the two left the bar. A jury found defendant guilty of two counts of felony menacing and prohibited possession of a firearm. The first count of felony menacing named the alleged victim as a security guard who had stepped between defendant and Abram after defendant drew his weapon; the second count named the alleged victim as another bar patron who had been sitting near Abram.

On appeal, defendant contended that the trial court erred in rejecting his jury instructions on the affirmative defense of self-defense. Here, defendant raised credible evidence that he acted in self-defense against Abram. Defendant’s intent to defend himself against Abram would, if the jury believed his testimony, allow the intent as to Abram to transfer to the encounter with the alleged victims. Thus, the trial court erred in rejecting defendant’s jury instructions on self-defense as an affirmative defense to the menacing charges. Further, the error was not harmless because while the defense’s theory of the case instruction referred generally to self-defense, the instruction did not require the prosecution to disprove self-defense beyond a reasonable doubt.

Defendant also contended that prosecutorial misconduct required reversal of his conviction for possession of a firearm while intoxicated. Here, the prosecutor asked defendant 44 times whether another witness’s testimony was incorrect, wrong, or untrue, or whether the witness had lied; this went beyond asking non-prejudicial questions designed to highlight discrepancies in the evidence. The error was plain and warranted reversal.

The judgment was reversed and the case was remanded for a new trial on all charges.

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 Supreme Court: Respondent Neither Waived Nor Invited Error with Respect to Simple Variance Claim

The Colorado Supreme Court issued its opinion in People v. Smith on Monday, April 30, 2018.

Invited Error—Waiver—Simple Variance—Plain Error Review.

In this case, the supreme court reviewed two issues: (1) whether respondent waived or invited error with respect to his claim of a prejudicial simple variance when his defense counsel stated that the proposed jury instructions were generally acceptable, and (2) whether a jury instruction on menacing that does not identify the particular victim named in the charging document creates a simple variance warranting reversal when the jury could potentially have deemed either of two people to be the victim.

In light of the supreme court’s opinion in People v. Rediger, 2018 CO 32, ___ P.3d  ___, the court concluded that respondent neither waived nor invited error with respect to his simple variance claim. The court thus reviewed respondent’s variance claim for plain error and concluded that because the evidence presented at respondent’s trial would not obviously have allowed the jury to find that the respondent menaced a victim not named in his charging document, the trial court did not plainly err in instructing the jury on menacing without specifying the victim.

The court reversed the court of appeals division’s judgment.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Obvious Instructional Error Did Not Fundamentally Undermine Defendant’s Rights

The Colorado Court of Appeals issued its opinion in People v. Hoggard on Thursday, June 29, 2017.

Custody—Child and Family Investigator—Second Degree Forgery—Attempt to Influence a Public Servant—Invited Error—Waiver—Constructive Amendment—Lesser Included Offense—Jury Instructions—Mens Rea.

During a child custody dispute, Hoggard forwarded to the court-appointed child and family investigator a chain of emails between her and her ex-husband. Hoggard allegedly falsified that email chain by adding five sentences that made it appear that her ex-husband had threatened her. As a result of that alleged falsification, Hoggard was convicted of second degree forgery and attempt to influence a public servant.

As an initial matter, the People argued that the doctrines of invited error and waiver preclude appellate review of Hoggard’s instructional error claims. Although Hoggard’s counsel approved the disputed jury instructions, it was an oversight, not a strategy, and therefore not invited error. Further, the failure to object to the jury instructions was not a waiver under the circumstances of this case.

Hoggard contended on appeal that the trial court constructively amended the second degree forgery charge by instructing the jury on the uncharged and more serious offense of felony forgery. Although the trial court’s forgery instruction was erroneous, instructing the jury on felony forgery was not a constructive amendment because Hoggard was both charged with and convicted of second degree forgery, a lesser included offense of felony forgery. Further, there is no reasonable likelihood that the instructional error affected the outcome of the trial.

Hoggard next argued that her conviction for attempt to influence a public servant must be reversed because the trial court did not instruct the jury on the required mens rea for each element of the offense, thereby violating her constitutional due process rights. Although the trial court’s instruction on the charge tracked the statute, it did not expressly require the jury to find that Hoggard acted with intent as to the third and fourth elements of the crime: that she intended to attempt to influence a public servant and that she intended to do so by means of deceit. Nor did the instruction set off the mens rea requirement as a separate element. Accordingly, the trial court’s instruction on attempt to influence a public servant was erroneous and the error was obvious at the time of trial. However, because there was no reasonable probability that the trial court’s instructional error contributed to Hoggard’s conviction, it was therefore not plain error.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: No Plain Error in Allowing Jury Access to DVD Where Defense Based on Motive, Not Inconsistency

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

Testimonial Evidence—Electronic Exhibits—Jury Deliberations—Plain Error.

The Colorado Supreme Court reviewed for plain error a trial court’s decision to allow the jury unfettered access, during its deliberations, to the out-of-court statements of three sexual assault victims. These statements were memorialized in three DVDs and three transcripts thereof, all of which had been admitted as exhibits in petitioner’s criminal trial. The court concluded that even if the trial court erred in allowing the jury unfettered access to the victims’ statements, on the facts of this case, any such error did not so undermine the fundamental fairness of the trial itself as to cast serious doubt on the reliability of petitioner’s convictions, and thus was not plain. Accordingly, the court affirmed the judgment of the court of appeals and remanded the case for further proceedings consistent with the opinion.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Plain Error Review Appropriate for Unpreserved Double Jeopardy Claims

The Colorado Supreme Court issued its opinion in People v. Zadra on Monday, February 27, 2017.

Plain Error Review—Double Jeopardy.

These two cases present the issues of whether double jeopardy claims can be raised for the first time on direct appeal and, if so, what standard of review applies. The Colorado Supreme Court addressed the same issues in four cases also decided on February 27 (consolidated as Reyna-Abarca v. People, 2017 CO 15, ___ P.3d ___). There, the court concluded that unpreserved double jeopardy claims can be raised for the first time on appeal and that appellate courts should ordinarily review such claims for plain error. Applying that ruling here, the court concluded that the divisions in People v. Zadra, 2013 COA 140, ___ P.3d ___, and People v. Adams, No. 12CA339 (Colo. App. Mar. 12, 2015), correctly conducted plain error review of defendants’ unpreserved double jeopardy claims and merged certain of defendants’ convictions. Accordingly, the court affirmed the judgments in both cases.

Summary provided courtesy of The Colorado Lawyer.

Tenth Circuit: Lawyer’s Job is to Object When Court Commits Error

The Tenth Circuit Court of Appeals issued its opinion in United States v. Craig on Monday, July 27, 2015.

David Craig was convicted of possession of a stolen firearm and imprisoned. Upon release, he violated conditions of his supervised release. A revocation hearing was held on August 14, 2014, and Mr. Craig stipulated to various violations of his supervised release. The court stated its proposed findings, noted the applicable statutory maximum and Guidelines range, and announced its tentative sentence. At no point did Mr. Craig attempt to make a statement despite invitations to do so from the court. Mr. Craig appealed his sentence based on the district court’s denial of an opportunity to allocute.

The Tenth Circuit evaluated Mr. Craig’s claims under plain error review, declining his invitation to subject them to de novo review. The Tenth Circuit found that Mr. Craig’s counsel could easily have requested an opportunity for Mr. Craig to allocute at multiple points in the proceeding. The Tenth Circuit rejected counsel’s argument that it would have been impolite or unprofessional for him to interrupt the judge, noting that it is a lawyer’s job to object when the court is committing error.

The district court’s sentence was affirmed.

Colorado Court of Appeals: No Preservation Requirement for Sufficiency Claims Under Colorado Law

The Colorado Court of Appeals issued its opinion in People v. McCoy on Thursday, June 18, 2015.

CRS § 18-3-404—Medical Professionals—Actors.

The prosecution charged McCoy with unlawful sexual contact against two men, P.K. and G.M., arising out of separate incidents. According to each of the victims, McCoy told them that he worked in the television industry and invited them to work for them. During the victim’s interviews and training, held at McCoy’s house, McCoy touched them and asked them sexual questions. McCoy had previously told the victims that he was a physician. A jury convicted McCoy of four counts of unlawful sexual contact.

McCoy argued on appeal that the prosecution presented insufficient evidence to sustain his convictions under CRS § 18-3-404(1)(g), because the statute proscribes only conduct occurring in a physician–patient relationship and as part of a medical exam or medical treatment. Although McCoy raised this issue for the first time on appeal, Colorado law contains no preservation requirement for sufficiency claims. Therefore, the Court of Appeals reviewed the sufficiency of the evidence de novo, and found that the statute is clear and unambiguous and is not limited to medical professionals or those who claim to be medical professionals.

Here, the jury could have concluded that the victims submitted to examinations because McCoy led them to believe the examinations were part of a hiring process. The jury could also reasonably have concluded that McCoy examined the victims for his sexual gratification, and not for bona fide medical purposes, because both victims testified that McCoy touched their intimate parts while he examined them. Therefore, the evidence was sufficient to sustain McCoy’s convictions under CRS § 18-3-404(1)(g). The Court further held that the statute’s plain terms are not unconstitutionally overbroad and vague. The judgment was affirmed.

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

Tenth Circuit: Buyer-Seller Rule Did Not Preclude Conspiracy Convictions

The Tenth Circuit Court of Appeals issued its opinion in United States v. Gallegos on Thursday, April 30, 2015.

A law enforcement investigation of Iran Zamarripa, the regional supervisor of an international methamphetamine ring, led to the arrest and trial of Simona Gallegos. Gallegos was the common law wife of a co-defendant, Pedro Juarez, and she purchased relatively small quantities of meth from Zamarripa on three occasions. Gallegos was tried with three co-defendants and ultimately found guilty of one count of conspiracy to distribute methamphetamine and possession with intent to distribute, two counts of possession with intent to distribute, and one count of use of a communication facility to facilitate the distribution of methamphetamine. Gallegos appealed.

Gallegos’ first argument on appeal was that the district court erred by admitting hearsay statements of her alleged co-conspirators without independent evidence she conspired with them. The Tenth Circuit declined to address the issue, finding Gallegos failed to point to specific statements.

Gallegos next challenged the sufficiency of the evidence supporting all four of her convictions. Gallegos contended the government’s evidence only supported that she obtained methamphetamine for personal use. However, the evidence forming the bases for her convictions showed she purchased the meth for Juarez, and on one occasion because he “ha[d] people[ ] waiting.” Gallegos contended the buyer-seller rule precluded her conviction even if she purchased the meth to distribute, but the Tenth Circuit found that contrary to its own precedent. The Tenth Circuit found the evidence that Gallegos “ha[d] people[ ] waiting” was by itself sufficient to infer an agreement to distribute methamphetamine, and further evidence that meth was delivered to Gallegos and she purchased meth on credit supported her convictions.

The Tenth Circuit also addressed Gallegos’ variance argument. Gallegos argued that the government proved only that she conspired with Juarez, and the evidence created a “spillover effect,” enabling her to be convicted of crimes for which she was not involved. After conducting a plain error review, the Tenth Circuit found little risk of the “spillover,” and certainly not enough to satisfy the third prong of the plain error test. The Tenth Circuit also found Gallegos unable to satisfy the fourth prong of the review.

Gallegos next argued that the district court erred in allowing testimony concerning a co-defendant’s post-arrest request for an attorney. The Tenth Circuit again reviewed for plain error since Gallegos failed to preserve the issue for appeal. Gallegos argued the evidence invited an inference of the co-defendant’s guilt, which was improperly imputed to her. The Tenth Circuit disagreed, finding the prosecution presented distinct evidence as to Gallegos and the other co-defendants.

The district court’s judgment was affirmed.

Colorado Supreme Court: Defense Counsel Failed to Object to Erroneous Statement of Law and No Plain Error

The Colorado Supreme Court issued its opinion in Martinez v. People on Monday, March 16, 2015.

Objections—Plain Error—Sufficiency of the Evidence.

In this case, the Supreme Court considered the effect of an erroneous deliberation instruction in a first-degree murder trial where defense counsel’s trial objection failed to identify the ground that rendered the deliberation instruction erroneous. The Court held that the plain error standard applies because the defense objection provided the trial court with no meaningful chance to avoid the instructional error. The Court concluded that the instructional error did not merit reversal under the plain error standard because overwhelming evidence proved that defendant deliberated, and the jury instructions as a whole adequately explained the law. The Court also held that there was sufficient evidence for the jury to convict defendant of first-degree murder after deliberation. The judgement of the court of appeals was affirmed and the case was remanded with instructions.

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

Tenth Circuit: District Court Erred in Suggesting Offense Level Before Finding Facts

The Tenth Circuit Court of Appeals issued its opinion in United States v. Sabillon-Umana on Monday, December 8, 2014.

Elder Geovany Sabillon-Umana was convicted of drug offenses as part of a larger trafficking scheme. Because of his relatively small role in the scheme, the district court suggested that he should have a base Guidelines offense level of 32 and requested the prosecutor to justify that offense level. The prosecutor offered facts to support the offense level, telling the court that finding Sabillon-Umana responsible for 1.5 kilos of heroin and 1.5 kilos of cocaine would arrive at that offense level, and the court adopted those factual findings. Later in the proceedings, when the defendant requested a sentence reduction for compliance with the prosecution, the court rejected his request, instead finding the prosecution had authority to issue sentence reductions.

The Tenth Circuit found two errors in the district court proceedings. First, the Tenth Circuit sharply reprimanded the district court for reversing the proper order of proceedings by deciding on an offense level before finding facts. The Tenth Circuit evaluated the facts on which Sabillon-Umana’s conviction was based and found he could only be responsible for 1.5 kilos of heroin and cocaine combined, not 1.5 kilos of each, which would reduce his base offense level to 30.

Next, the Tenth Circuit found plain error in the district court’s failure to reduce the sentence due to Sabillon-Umana’s participation with the prosecution. The district court had contemplated a sentence of 72 months prior to stating it would not reduce the sentence unless the prosecution suggested it, and instead arrived at a sentence of 96 months. The Tenth Circuit found that sentencing discretion lies solely in the court.

The case was remanded for resentencing.