August 25, 2019

Colorado Court of Appeals: Parent’s Counsel Not Necessarily Entitled to be Present at In Camera Interview of Children

The Colorado Court of Appeals issued its opinion in People in Interest of S.L. on Thursday, December 28, 2017.

Dependency and Neglect—Due Process—In Camera Review—Ineffective Assistance of Counsel—Disclosures—Expert Witness.

The Rio Blanco County Department of Human Services (Department) became involved with the parents in this case as a result of concerns about the children’s welfare due to the condition of the family home, the parents’ use of methamphetamine, and criminal cases involving the parents. Attempts at voluntary services failed, and on the Department’s petition for dependency and neglect, the district court ultimately terminated the parents’ rights.

On appeal, the parents contended that the Department failed to make reasonable efforts to reunify them with their children. Specifically, the parents contended that the Department did not give them sufficient time to complete the services under their treatment plans and failed to accommodate their drug testing needs. The termination hearing was not held until more than a year after the motion to terminate was filed. For nine months before the motion to terminate was filed, the Department provided numerous services to the parents, including substance abuse therapy, therapeutic visitation supervision, drug abuse monitoring, and a parental capacity evaluation. The Department also provided counseling for the children. Both parents missed drug tests and tested positive during the testing period, and both were arrested for possession of methamphetamine during the pendency of the case. The Department made reasonable accommodations to meet the parents’ needs and the parents had sufficient time to comply with their treatment plans. The record supports the trial court’s findings that termination was appropriate because (1) the court-approved appropriate treatment plan had not been complied with by the parents or had not been successful in rehabilitating them; (2) the parents were unfit; and (3) the conduct or condition of the parents was unlikely to change within a reasonable time.

Father also contended that the trial court’s decision to interview the 9-year-old twin children together in chambers fundamentally and seriously affected the basic fairness and integrity of the proceedings and violated his due process rights. Father also argued that answers the judge gave to the children’s questions during the interview were improper. More than five months before the termination hearing, the court interviewed the children in chambers. The interview was recorded and transcribed, and a copy of the transcript was provided to the parties before the termination hearing. Whether counsel may be present during an in camera interview of a child in a dependency and neglect proceeding is determined on a case-by-case basis and is within the trial court’s discretion. In making this determination, the trial court should consider, among other things, the child’s age and maturity, the nature of the information to be obtained from the child, the relationship between the parents, the child’s relationship with the parents, any potential harm to the child, and ultimately any impact on the court’s ability to obtain information from the child. In addition, in the interests of fairness and to allow for the record to be fully developed, the trial court should allow the parents or trial counsel to submit questions to the child, which the court may ask in its discretion. Further, the interview, regardless of whether counsel is present, must be on the record, and a transcript of the interview must be made available to the parties before a termination hearing. Here, the trial court did not abuse its discretion in the interview procedures that it followed nor in the weight it accorded to the information solicited.

Father next contended that he was provided ineffective assistance of counsel. Although his trial counsel failed to meet discovery and disclosure deadlines for an expert witness, the record fails to demonstrate the necessary prejudice to establish a claim based on ineffective assistance.

Father further contended that the trial court abused its discretion and violated his due process rights in allowing five of the Department’s witnesses to testify as experts despite the Department failing to comply with C.R.C.P. 26(a). Despite inadequacies in the C.R.C.P. 26 disclosures, the bases for the experts’ testimony at the hearing had been disclosed to father. Therefore, the trial court did not abuse its discretion in concluding that father was not prejudiced by the inadequate C.R.C.P. 26(a) disclosures.

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Defendant May Fire Retained Counsel for Any Reason but Must Face Consequences

The Colorado Supreme Court issued its opinion in Ronquillo v. People on Monday, October 16, 2017.

Criminal Law—Counsel—Choice of Counsel—Continuance.

The Colorado Supreme Court held that the Sixth Amendment right to counsel of choice includes the right to fire retained counsel without having to show good cause, even when the defendant wants appointed counsel. But defendants who fire retained counsel will not necessarily be allowed to proceed as they wish. Accordingly, trial courts must ensure that defendants understand the consequences of firing retained counsel. The court outlined the analysis that trial courts should conduct before releasing retained counsel from a case. Because the Colorado Court of Appeals erred by requiring Ronquillo to show good cause for firing retained counsel, the court reversed and remanded for further proceedings.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Defendant’s Wife Can Initiate Police Interview After Invocation of Right to Counsel

The Colorado Court of Appeals issued its opinion in People v. Cardman on Thursday, September 22, 2016.

Sexual Assault—Custodial Interrogation—Miranda—Right to Counsel—Third Party.

The police executed a search warrant on defendant’s home after the victim reported that defendant had sexually assaulted her. During the search, they recovered a weapon, and defendant was arrested on the charge of possession of a weapon by a previous offender. Defendant promptly exercised his rights to remain silent and to counsel, and the police ceased questioning. Two days later, a police detective conducted another interview of defendant during which defendant admitted to three instances of sexual contact with the victim. An audio recording of defendant’s second police interview was admitted at trial. Defendant was convicted of multiple counts of sexual assault on a child.

On appeal, defendant contended that the district court erred by not suppressing statements he made during his second custodial interrogation because he had previously invoked his right to counsel and did not himself reinitiate communication with the police. To establish that a suspect has reinitiated discussions with the police after previously invoking his right to counsel, the prosecution must show that (1) the police reasonably believed that the suspect directed a third party to inform them that he wanted to have “a generalized discussion about the investigation,” and (2) the police confirmed with the suspect that he had so indicated. Here, the detective’s testimony was clear that defendant’s wife informed him that defendant had questions about the investigation. Further, the detective knew the caseworker had also been in contact with defendant after the first interview, and she also informed him that both defendant and his wife had questions about the investigation. The detective then called defendant at the jail and confirmed that defendant desired to speak with him. Therefore, defendant “adequately evinced a willingness and a desire to” reinitiate communication with the police through a third party and there was no error in admitting his inculpatory statements.

Defendant also contended that the statements he made in the second interview were not voluntary and that the court erred in not holding a hearing on the issue of voluntariness. The court of appeals did not reach the merits of this issue because defendant moved to suppress the statements solely on reinitiation grounds and thus waived the voluntariness claims.

Defendant also argued that reversal is required because the recording of the interview admitted at trial included the detective’s assertions that he believed the victim and did not believe defendant’s denials of the victim’s allegations, and because the detective testified that he did not believe defendant. The court discerned no plain error in the admission of this evidence.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

HB 16-1309: Establishing a Defendant’s Right to Counsel in Certain Municipal Cases

On March 2, 2016, Rep. Susan Lontine and Sen. Vicki Marble introduced HB 16-1309Concerning a Defendant’s Right to Counsel in Certain Cases Considered by Municipal Courts. The bill was introduced in the House Judiciary Committee, where it passed, unamended, and was referred to the House Committee of the Whole. The bill passed Second and Third Readings in the House unamended and was assigned to the Senate State, Veterans, & Military Affairs Committee. The bill was amended in the State, Veterans, & Military Affairs Committee and referred to the Senate Finance Committee.

This bill applies to prosecutions for violations of municipal charters and ordinances. At the time of first appearance on a municipal charge, if the defendant is in custody and the charged offense includes a possible sentence of incarceration, the court shall appoint counsel to represent the defendant for purposes of the initial appearance unless, after a full advisement, the defendant makes a knowing, intelligent, and voluntary waiver of his or her right to counsel. If the defendant remains in custody, the appointment of counsel continues until the defendant is released from custody. If the defendant is released from custody, he or she may apply for court-appointed counsel, and the court shall appoint counsel if the court determines that the defendant is indigent and the charged offense includes a possible sentence of incarceration.

Max Montag is a 2016 J.D. Candidate at the University of Denver Sturm College of Law.

Colorado Supreme Court: Defendant’s Request for Lawyer was Ambiguous so Statements Admissible

The Colorado Supreme Court issued its opinion in People v. Kutlak on Monday, January 11, 2016.

Criminal Law—Fifth Amendment Right to Counsel—Invoking the Right to Counsel—Suppression of Statements.

The Supreme Court clarified that in determining whether a suspect in custody has made an unambiguous request for counsel, the proper standard under Davis v. United States, 512 U.S. 452, 459 (1994), is whether “a reasonable police officer in the circumstances would understand the statement to be a request for an attorney.” Applying this standard, the Court held that, under the totality of the circumstances, defendant did not unambiguously and unequivocally invoke his right to counsel. Because defendant did not invoke his right to counsel, and because he otherwise validly waived his Miranda rights before making incriminating statements, his statements should not have been suppressed.

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

Colorado Court of Appeals: Court Erred by Allowing Defense Counsel to Withdraw Without Questioning Defendant

The Colorado Court of Appeals issued its opinion in People v. Cardenas on Thursday, July 16, 2015.

Motion to Withdraw—Reversal.

Defendant was found guilty of various counts of second-degree burglary, attempted second-degree burglary, and theft. On appeal, defendant contended that the court’s failure to include him in a hearing on his attorney’s motion to withdraw and failure to inquire about his objections to or confusion about that motion, before allowing the attorney to withdraw, require reversal of his convictions. Defense counsel, who had replaced a public defender, filed a motion to withdraw, citing substantial and irreconcilable differences of opinion concerning the course of scope of representation. The court asked defendant’s counsel about the reasons for withdraw without the presence of defendant, and then asked defendant about the reasons for withdrawal, including difficulties with communication, but did not rule on the motion. The case was transferred to another judge, who held an in camera review without the presence of defendant and thereafter allowed defense counsel to withdraw. Without knowing what communication occurred between counsel and the court, defendant’s absence created a risk that his right to a fair trial was impaired. For this reason and because defendant’s presence was required by the rules of criminal procedure, the second judge abused his discretion in granting the motion without including defendant in the proceedings. Accordingly, the judgment of conviction was reversed, defendant’s sentence was vacated, and the case was remanded for a new trial.

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

Colorado Court of Appeals: Constitutional Right to Counsel Applies at All Critical Stages of Criminal Proceeding

The Colorado Court of Appeals issued its opinion in People v. Fritts on Thursday, August 14, 2014.

Sexual Assault—Child—Sentence—Consecutive—Right to Counsel—Crim.P. 35(a).

Defendant was charged with sixteen counts of sexual assault-related offenses based on allegations that he molested his minor stepdaughter. In 2000, in exchange for dismissal of the remainder of the charges, defendant pleaded guilty to two counts of sexual assault on a child by one in a position of trust. Defendant was sentenced to two concurrent sentences of twenty years to life. Defendant later filed a Crim.P. 35(a) motion to correct an illegal sentence. After a hearing, the court sentenced defendant to two consecutive sentences of ten years to life.

On appeal, defendant argued that the post-conviction court erred in holding that a defendant has no constitutional or statutory right to appointed counsel at a resentencing hearing occasioned by a successful Crim.P. 35(a) motion. Here, although defendant had a right to appointed counsel because the motion involved resentencing and the court erred in ruling otherwise, the error was harmless beyond a reasonable doubt because defendant was represented by privately retained counsel at the resentencing hearing.

Defendant also argued that the consecutive sentences imposed by the post-conviction court on resentencing were unconstitutional and illegal. However, the aggregate sentence imposed on resentencing was not harsher than defendant’s original sentence. Further, the record supports the court’s finding that two factually distinct offenses occurred. Therefore, the post-conviction court did not abuse its discretion by imposing consecutive sentences, and the consecutive sentences imposed on resentencing did not deprive defendant of due process of law. In addition, defendant’s rights against double jeopardy were not violated. The sentences were affirmed.

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

Colorado Court of Appeals: District Attorney Can Disqualify Self on Own Motion

The Colorado Court of Appeals issued its opinion in People v. Aryee on Thursday, July 31, 2014.

Sexual Assault on a Child—District Attorney—Disqualification—Fifth Amendment—Evidence—Age of Victim.

Aryee was the pastor of a church that was located in his home. The teenage victim, K.W., and her family became friends with Aryee when they moved to Denver and began attending his church. In 2008, Aryee and K.W. engaged in sexual intercourse resulting in a child. Aryee claimed the acts were consensual and occurred three times. K.W. claimed that Aryee forced himself on her nine or more times. A jury found Aryee guilty of aggravated sexual assault on a child and numerous counts of sexual assault on a child by one in a position of trust.

On appeal, Aryee contended that the trial court erred by disqualifying the Adams County District Attorney’s Office and appointing two Denver County district attorneys as special prosecutors. The district attorney requested her own disqualification. The filing of the motion seeking disqualification is all the statute requires;  therefore, the trial court did not err in granting such request and disqualifying the district attorney.

Aryee also contended that the trial court violated his Fifth Amendment rights by admitting statements he made to the police after allegedly invoking his right to counsel. It is unclear, however, whether Aryee was requesting an attorney at that time, or whether he only wanted to speak to one before giving a DNA sample. Considering the totality of the circumstances, Aryee did not make an unambiguous and unequivocal request for counsel. Thus, because Aryee’s statement was ambiguous, the detective was not required to cease all questioning, and the trial court did not err by admitting such statements.

Aryee further contended that the People failed to present sufficient evidence of K.W.’s age to support his convictions. K.W. was born in war-torn Sierra Leone and has no birth certificate. However, S.W., who has taken care of K.W. since birth, testified that K.W. was born on June 6, 1993. Additional evidence was presented regarding K.W.’s age, from which a reasonable jury could have concluded that K.W. was 15 years old at the time of the first incident and between 15 and 18 years old during the following incidents.

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

Colorado Supreme Court: Defendant’s Miranda Waiver Effectively Waived his Right to Counsel Under the Fifth and Sixth Amendments

The Colorado Supreme Court issued its opinion in People v. Luna-Solis on Monday, April 8, 2013.

Interlocutory Appeal—Discovery Violations—Suppression.

The People filed an interlocutory appeal pursuant to CRS § 16-12-102(2) and CAR 4.1, as well as a petition pursuant to CAR 21, seeking relief from a district court order suppressing statements made by defendant and excluding DNA evidence. Although the district court found that the statements in question were voluntary and were made after an effective waiver of Miranda rights, it suppressed them on the ground that the Sixth Amendment barred the Denver police from questioning defendant about this ongoing Arapahoe County prosecution unless his counsel in the case were present. The district court also excluded DNA evidence collected by the Denver police in the execution of a Crim.P. 41.1 order of the Denver County Court, on the ground that they sought the order, at least in part, for the benefit of the prosecution in this case.

The Supreme Court reversed, holding that because defendant’s Miranda waiver effectively waived his right to counsel as guaranteed by the Fifth and Sixth Amendments, the district court erred in suppressing statements as a violation of defendant’s Sixth Amendment right to counsel. Furthermore, because Crim.P 16 II imposes disclosure obligations on criminal defendants without simultaneously barring the use of evidence acquired through otherwise lawful investigation, the district court erred in finding a discovery violation and excluding DNA evidence.

Summary and full case available here.

HB 13-1210: Repealing Requirement that Criminal Defendant Charged with Certain Offenses Meet with Prosecuting Attorney Prior to Appointment of Counsel

On February 1, 2013, Rep. Elena Kagan and Sen. Pat Steadman introduced HB 13-1210 – Concerning Appointment of Legal Counsel During Plea Negotiations for Indigent Adult DefendantsThis summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

To make Colorado law consistent with recent U.S. supreme court decisions regarding the right to legal counsel during critical stages, including plea negotiations, this bill repeals a statute that requires an indigent person charged with a misdemeanor, petty offense, or motor vehicle or traffic offense to meet with the prosecuting attorney before legal counsel is appointed. On March 21, the Judiciary Committee approved the bill after amending it and sent it to the Appropriations Committee for consideration of the fiscal impact.

Tenth Circuit: Defendant Invoked His Right to Counsel by Handing His Attorney’s Letter to FBI Agent Stating He Did Not Wish to Speak

The Tenth Circuit issued its opinion in United States v. Santistevan on Monday, December 17, 2012.

In 2007, Mr. Santistevan was in jail. Late one night, his girlfriend called FBI agent Eicher (“agent”) and told him Mr. Santistevan wanted to speak with him about recent Denver robberies. The next morning, on his way to the jail, the agent received a call from Katherine Spengler, a public defender (“attorney”).  The attorney advised him that she represented Mr. Santistevan, had spoken with him that morning, and that he did not wish to speak. The agent informed the attorney of his conversation with Mr. Santistevan’s girlfriend the previous night and indicated that he intended to visit Mr. Santistevan to ask him directly if he wanted to make any statements or answer questions. The attorney responded that she had given Mr. Santistevan a letter to give to the agent if he went to the jail.

When the agent arrived at the jail, Mr. Santistevan handed him the letter stating that he did not wish to speak with the agent without counsel. The agent then told Mr. Santistevan is was up to him whether he wanted to talk with the agent. Mr. Santistevan eventually went with the agent to the FBI offices and made incriminating statements about two robberies. He was indicted, and Mr. Santistevan filed a motion to suppress the statements made during the interview.

The district court found that Mr. Santistevan unambiguously invoked his right to counsel by handing the letter to the agent. The court also determined that Mr. Santistevan was subject to a custodial interrogation when he invoked the right to counsel. The government appealed.

Pursuant to Edwards v. Arizona, 451 U.S. 477, 484–85 (1981), the Tenth Circuit agreed with the district court that Mr. Santistevan’s act of handing the letter drafted by his attorney to the agent was an unambiguous invocation of the right to counsel. Once a suspect unambiguously invokes the right to counsel—as Mr. Santistevan did here by giving the letter to the agent—all questioning must stop.

Pursuant to United States v. Kelsey, 951 F.2d 1196 (10th Cir. 1991), because Mr. Santisteven knew the agent intended to question him at some point in the near future, he was subject to custodial interrogation, and he could therefore properly invoke his right to counsel.