August 14, 2018

Pregnancy Accommodations Bill, CCB Transparency Bill, and More Signed by Governor

On Wednesday, June 1, 2016, Governor Hickenlooper signed 13 bills into law. To date, the governor has signed 217 bills this legislative session. Some of the bills signed Wednesday include a bill requiring employers to make reasonable accommodations for pregnant women, a bill to increase transparency of community-centered boards, a bill authorizing the sale of land for expansion of Fort Logan National Cemetery, and more. The bills signed Wednesday are summarized here.

  • HB 16-1187 – Concerning a Sales and Use Tax Exemption for Meals Provided in Certain Retirement Communities, by Rep. Tracy Kraft-Tharp and Sen. Chris Holbert. The bill creates sales and use tax exemptions for food and food packaging to be consumed by residents on the premises of a retirement community, which includes assisted living residences, nursing homes that provide continuous nursing care, and independent living facilities providing services to residents age 55 and older.
  • HB 16-1277 – Concerning the Appeal Process for Medical Assistance Benefits, and, in Connection Therewith, Making an Appropriation, by Reps. Susan Lontine & Lois Landgraf and Sens. Andy Kefalas & Ellen Roberts. The bill requires the Department of Health Care Policy and Financing to give Medicaid clients at least 10 days advanced notice prior to suspending, terminating, or modifying a client’s medical assistance benefits. The bill also extends the deadline to appeal for a client to appeal the intended action to 60 days after the date of notice, up from 30 days under current law.
  • HB 16-1280 – Concerning the Regulation of Air Ambulance Service, and, in Connection Therewith, Making an Appropriation, by Rep. Faith Winter and Sen. Kent Lambert. The bill gives the CDPHE authority to establish state-level licensing of air ambulances that allows for air ambulance operators to receive a license either by gaining accreditation through an approved organization or by meeting licensing standards established by the CDPHE and the State Board of Health.
  • HB 16-1387 – Concerning Health Insurance Coverage for Severe Protein Allergic Conditions, by Rep. Dianne Primavera and Sen. Laura Woods. Current law requires that health insurance plans provide coverage for medical foods for newborn children with inherited enzymatic disorders caused by single gene defects involved in the metabolism of amino, organic, and fatty acids. This bill adds coverage for severe protein allergic conditions and amino acid-based elemental formulas.
  • HB 16-1397 – Concerning the Completion of the Fitzsimmons State Veterans Community Living Center to Provide a Continuum of Residential Care Options, by Reps. Su Ryden & JoAnn Windholz and Sens. Mary Hodge & Larry Crowder. The bill repeals and reenacts the authority of the Department of Human Services to build a veterans community living center and assorted facilities on the site of the former Fitzsimons Army Medical Center and outlines the requirements for the construction and use of the facilities.
  • HB 16-1438 – Concerning the Provision of Reasonable Accommodations by an Employer for Persons Who Have a Condition Related to Pregnancy, by Rep. Faith Winter and Sen. Beth Martinez Humenik. The bill requires employers to engage in a timely, good-faith, interactive process when an employee or applicant requests reasonable accommodations related to pregnancy or physical recovery from childbirth. Reasonable accommodations may include the provision of more frequent or longer break periods; more frequent bathroom, food, or water breaks; acquisition or modification of equipment or seating; limitations on lifting; temporary transfer to a less strenuous or hazardous position or light duty, if available; assistance with manual labor; or modified work schedules, as long as certain conditions are met.
  • HB 16-1456 – Concerning the Sale of a Portion of Land at the Colorado Mental Health Institute at Fort Logan to the United States Department of Veterans Affairs for the Expansion of Fort Logan National Cemetery, by Rep. Susan Lontine and Sen. Larry Crowder. The bill authorizes the Department of Human Services to sell up to 15 acres of vacant land around the Colorado Mental Health Institute at Fort Logan to the United States Department of Veterans Affairs at fair market value for purpose of expanding the Fort Logan National Cemetery.
  • SB 16-027 – Concerning Allowing the Option for Medicaid Clients to Obtain Prescribed Drugs Through the Mail, and, in Connection Therewith, Reducing an Appropriation, by Sens. Beth Martinez Humenik & Nancy Todd and Reps. Dianne Primavera & Lois Landgraf. Under current law, only a limited number of Medicaid recipients may receive maintenance medication by mail order. This bill expands the option to receive a three-month supply of maintenance medication through the mail to all Medicaid recipients.
  • SB 16-038 – Concerning Measures to Promote the Transparency of Community-Centered Boards, and, in Connection Therewith, Making Certain Community-Centered Boards Subject to Performance Audits Undertaken by the State Auditor, Making All Community-Centered Boards Subject to the “Colorado Local Government Audit Law”, Expanding Public Disclosure of the Administration and Operations of the Community-Centered Boards, and Making an Appropriation, by Sen. Irene Aguilar and Reps. Dave Young & Lang Sias. The bill requires a community centered board (CCB) that receives more than 75 percent of its annual funding from federal, state, or local governments, or any combination thereof, to be subject to the Colorado Local Government Audit Act.
  • SB 16-158 – Concerning the Ability of a Physician Assistant to Perform Functions Delegated by a Physician that are Within the Physician Assistant’s Scope of Practice, by Sen. Kevin Lundberg and Rep. Dianne Primavera. The bill clarifies and expands the duties that a physician may delegate to a physician assistant within his or her scope of practice, including allowing a PA to issue certain statements verifying a medical condition, obtain Level I accreditation in workers’ compensation matters, and more.
  • SB 16-190 – Concerning Improving the Process for County Administration of Public Assistance Programs, and, in Connection Therewith, Making and Reducing Appropriations, by Sen. Pat Steadman and Rep. Bob Rankin. The bill establishes performance standards to improve the administration of the Supplemental Nutrition Assistance Program, including requiring DHS to contract with an external vendor to collect data regarding costs and performance of several public assistance programs.
  • SB 16-202 – Concerning Increasing Access to Effective Substance Use Disorder Services Through Designated Regional Managed Service Organizations, and, in Connection Therewith, Making an Appropriation, by Sen. Pat Steadman and Rep. Dave Young. The bill requires each managed service organization to assess the sufficiency of substance use disorder services for various populations in its geographic region, and to prepare a community action plan to address the most critical service gaps by March 1, 2017. The bill allows appropriations from the Marijuana Tax Cash Fund to support the implementation of MSO community action plans and to provide substance abuse treatment.
  • SB 16-212 – Concerning Aligning Changes Made to the Federal Child Care and Development Block Grant Reauthorization of 2014 to the Twelve-Month Eligibility Requirement of the Colorado Child Care Assistance Program, by Sen. Larry Crowder and Rep. Janet Buckner. The bill makes changes to align state law on eligibility for the Colorado Child Care Assistance Program with federal law. Specifically, if an eligible participant’s income rises above the level set by the county to deny child care assistance during the twelve-month eligibility period, the county must continue providing the child care subsidy until the next twelve-month redetermination period.

For a list of Governor Hickenlooper’s 2016 legislative decisions, click here.

Sobering Statistics — Prevalence of Alcohol Use and Mental Health Issues Among Lawyers

COLAPEditor’s Note: If you are or someone you know is struggling with substance abuse or mental health issues, please contact COLAP for confidential assistance at (303) 986-3345 or (855) 208-1168. 

The legal profession is noble indeed. Lawyers are tasked with holding high standards of integrity while zealously advocating for their clients, often during the worst experience of their clients’ lives. Lawyers must maintain competence, diligence, truthfulness, and candor. Biglaw attorneys must be rainmakers as they work grueling hours in a high-stakes environment. Solo and small firm attorneys must also worry about bringing in and keeping clients, but they also have office management duties. In-house counsel must be knowledgeable about many different areas of the law so they can provide competent representation on any issue their business may face. Prosecutors balance heavy caseloads while trying to bring justice to grieving victims. Defense attorneys sometimes face literal life-or-death situations with their clients. The law is not a profession for the faint of heart. And it shows—stories of lawyer suicides are so common it sparked a CNN report, “Why Are Lawyers Killing Themselves?” The South Carolina Bar Association’s South Carolina Lawyer published “The Lawyer’s Epidemic: Depression, Suicide, and Substance Abuse.” Patrick Krill wrote a compelling article for “The Hennepin Lawyer” called “Legally Intoxicated: The Impacts and Implications of Substance Abuse in the Practice of Law,” describing one fictional partner’s descent into substance abuse but also describing situations that are all-too familiar for many lawyers.

A new study from the Hazelton Betty Ford Foundation revealed alarming rates of substance abuse and mental health disorders among attorneys. Nearly 13,000 legal professionals responded to an anonymous survey posted by bar associations across the country. Of the respondents, 53.4 percent were men and 46.5 percent were women. Age was measured in 10-year increments beginning with under 30 and ending with 70 and older, and respondents were fairly evenly divided through the age groups, with the fewest responses from the 70+ attorneys and the second fewest from the under-30s. Marital status and race/ethnicity were also considered; the vast majority of participants were white/Caucasian (91.3 percent) and married (70.2 percent). Professional characteristics, including work environment, position in firm, hours per week, and whether litigation was involved, were also examined. Participants self-reported on alcohol and substance use, and 84.1 percent reported using alcohol in the past 12 months.

The study included a 10-item self-report test called the Alcohol Use Disorders Identification Test (AUDIT), which is used to screen for hazardous use, harmful use, and potential alcohol dependence. An alarming 20.6 percent of reporting attorneys had positive AUDIT screens, as compared to 11.8 percent for a broad, highly educated workforce and 15 percent for physicians. The youngest attorneys were the most likely to report problem drinking—31.9 percent of the under-30 attorneys and 25.1 percent of attorneys aged 31-40 had positive AUDIT screens, with the percentages tapering off for each age segment. Similarly, attorneys in practice 10 years or less reported the highest rates of problem drinking—28.1 percent of new attorneys had positive AUDIT scores, with percentages diminishing in each age segment. The results were fairly static across all types of firms; private firms and bar administration had the highest rate of positive AUDIT screens but solos, in-house (government), in-house (corporate), and law schools were not far behind. Junior associates were most likely to screen positive for problem drinking, and senior partners were least likely.

The study also found alarmingly high percentages of depression and anxiety among responding attorneys. Of the attorneys surveyed, 28 percent experienced mild or higher levels of depression, 19 percent experienced mild or higher levels of anxiety, and 23 percent experienced mild or higher levels of stress as measured on the DASS-21 scale. Over 60 percent of the attorneys surveyed reported having experienced anxiety at some point in their career, and 45.7 reported having experienced depression. Suicidal thoughts and actions were also described, with 11.5 percent of responding attorneys admitting they had had suicidal thoughts at some point in their careers and 2.9 percent admitting self-injurious behaviors. The study noted significantly higher levels of stress, anxiety, and depression among those screening positive for problematic alcohol use, and those with stress, anxiety, and depression scores within the normal range endorsed significantly fewer problematic alcohol behaviors. The study also remarked that alcohol can cause mental health issues, and mental health issues can often lead people to self-medicate with alcohol, so the two issues frequently co-exist.

Among all respondents, the same barriers to treatment for substance abuse and mental health disorders were raised: not wanting others to find out they needed help and concerns about privacy and confidentiality. However, those who sought treatment in programs designed for legal professionals reported significantly lower AUDIT scores than those who attended programs not tailored to legal professionals.

Colorado has a lawyer assistance program tailored for legal professionals, appropriately named the Colorado Lawyer Assistance Program or COLAP. COLAP is completely confidential, and in fact Colorado Supreme Court Rule 254 establishing COLAP provides that none of the information gathered by COLAP can be released without a signed release. COLAP’s mission is to protect the interests of clients, litigants, and the general public by educating the bench, bar, and law schools regarding the causes of and remedies for impairments affecting members of the legal profession, and to provide confidential assistance to lawyers, judges, and law students who suffer from physical or mental health issues, or other impairments that affect their ability to be productive members of the profession. As COLAP’s website informs, “Getting help won’t sabotage your career, but not getting help can!”

If you are among the one out of every five attorneys who struggles with problematic alcohol use, or the one-in-four attorneys who is experiencing depression, please do not struggle in silence. Contact COLAP or your personal physician today.

Colorado Court of Appeals: Identification of Drugs On Website Insufficient as Proof Under CRE 803(17)

The Colorado Court of Appeals issued its opinion in People v. Hard on Thursday, October 9, 2014.

Hearsay Testimony—CRE 803(17)—Illegal Sentence.

State Trooper Blake Hancey pulled over defendant’s car after seeing that defendant was speeding and not wearing a seat belt. Incident to the arrest, Trooper Hancey searched defendant and found ten pills in her pants pockets. A jury found defendant guilty of possession of a schedule II controlled substance (oxycodone), possession of a schedule III controlled substance (alprazolam), failure to present proof of insurance, and speeding.

On appeal, defendant contended that the district court erred by admitting hearsay testimony about information Trooper Hancey obtained from Drugs.com. Before taking defendant to the police station, Hancey accessed the website Drugs.com to identify the pills found on defendant. Information from Drugs.com does not meet the requisite criteria of necessity and reliability to be admissible under CRE 803(17). Another available and more reliable method for identifying the pills would have been to submit them to the Colorado Bureau of Investigation for chemical testing, which was not done in this case. The district court therefore erred in admitting the hearsay evidence obtained from that website.

Because Drugs.com was insufficient to prove identity of some of the pills as oxycodone beyond a reasonable doubt and there was no other evidence to identify these pills, the conviction for possession of a schedule II controlled substance was vacated and the People cannot retry defendant on that charge. However, because defendant told Hancey that she had taken Xanax (alprazolam) earlier that day and that she had prescriptions for the pills he had found in her pockets, a rational fact-finder could have found beyond a reasonable doubt that defendant possessed alprazolam. Therefore, defendant was subject to retrial on the charge for possession of that substance.

On cross-appeal, the People contended that the district court imposed an illegal sentence by suspending half of the mandatory minimum fine for defendant’s conviction for failure to present proof of insurance. The sentencing statute permits a court to suspend half of the $500 mandatory minimum fine for failure to present proof of insurance if the defendant shows that he or she has obtained insurance. Here, at the sentencing hearing, defendant told the court that her car had been auctioned off and that she was no longer driving. Nothing in the plain language of the statute provides an exception where a defendant represents that she has relinquished ownership of her car or is not currently driving. The sentence was therefore illegal.

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

Colorado Court of Appeals: Defendant Not Entitled to Second Amendment Instruction for Firearm Used In Conjunction with Illegal Drug Transactions

The Colorado Court of Appeals issued its opinion in People v. Cisneros on Thursday, April 24, 2014.

Jury Instructions—Challenge for Cause—Deadly Weapon—Evidence—Right to Bear Arms—Controlled Substance—Miranda Rights—Motion to Suppress Statements—Res Gestae Evidence.

Defendant was at home with his wife, four children, brother, and mother when intruders who apparently intended to rob defendant fired shots into the apartment. Defendant grabbed a handgun and fired shots toward the intruders. Defendant’s 10-year-old daughter was caught in the crossfire. She was shot in the head and died at the scene.

The People charged defendant with child abuse resulting in death, possession with intent to distribute marijuana, possession of marijuana–eight ounces or more, and one special offender count under the special offender statute’s deadly weapon provision. The People alleged that defendant was an armed drug dealer who sold drugs out of his home, thereby placing his daughter in a situation that posed a threat of injury to her health. The People also alleged that defendant possessed the handgun in connection with his drug dealing business.

Regarding defendant’s contention on appeal for an elemental jury instruction concerning possession of a deadly weapon under CRS § 18-18-407(1)(f), the Court of Appeals ruled that the instructions as a whole properly informed the jury of the elements of the sentence aggravator and the proof beyond a reasonable doubt burden. The Court also ruled that there was sufficient evidence to support the jury’s findings that defendant possessed both a controlled substance and a deadly weapon, and to infer a nexus between the controlled substance and the weapon.

The Court determined that because the U.S. and Colorado Constitutions do not protect the unlawful purpose of possessing a firearm in furtherance of a drug offense, the Second Amendment right to bear arms in self-defense does not infringe on the constitutionally protected right to bear arms. Defendant was not entitled to the statute’s instruction. Further, because the jury found that defendant’s possession of the handgun was related to his drug offense, the statute was not unconstitutional as applied to him, nor was it unconstitutionally vague.

The Court did not agree with defendant’s argument that his statements to law enforcement officers should have been suppressed. Defendant was not in custody and was not being interrogated when he provided his statement to the officer at the scene or in the waiting room at the police station, and defendant voluntarily made statements to police after they advised him of his Miranda rights. Therefore, the trial court did not err in denying defendant’s motion to suppress.

The Court ruled that the trial court did not err in denying defendant’s causal challenge to a juror who worked as a reporter for The Denver Post. The record supported the court’s finding that this juror could “do what the law requires” and could handle any consequences of his relationship with law enforcement agencies.

Defendant contended that the trial court erred when it admitted, as res gestae, evidence concerning his prior acts of buying, selling, and receiving marijuana. This evidence, however, was relevant as to defendant’s knowledge and intent to distribute the marijuana, his possession of a deadly weapon in connection with that offense, and the dangerous circumstances in which defendant allowed his daughter to live. Therefore, the court did not err in admitting it. The judgment and sentence were affirmed.

Summary and full case available here.

SB 14-178: Defining “Drug-Endangered Child” for Purposes of Child Abuse or Neglect in the Criminal Code

On April 1, 2014, Sen. Andy Kerr introduced SB 14-178 – Concerning the Definition of a Drug-Endangered Child for Purposes of Cases of Child Abuse or Neglect in the Criminal Code. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill establishes a definition, as formulated by the state substance abuse trend and response task force, for a ”drug-endangered child” for purposes of cases of child abuse or neglect in the criminal code. The bill creates the crime of child abuse for a person who is responsible for creating a situation or unreasonably permitting a child to be placed in a situation in which a child is drug-endangered and establishes penalties.

On April 9, the Senate Judiciary Committee took testimony and delayed action on the bill for a later date.

Since this summary, the Senate Judiciary Committee referred the bill, amended, to the Senate Committee of the Whole.

Colorado Court of Appeals: Convictions for Marijuana Charges Reversed Due to Application of Amendment 64

The Colorado Court of Appeals issued its opinion in People v. Russell on Thursday, March 13, 2014.

Marijuana Possession—Retroactive Application of Amendment 64—Police Officer Testimony—Lay Witness.

Defendant and her husband (father) brought their infant son to the hospital, where he was diagnosed with a spiral fracture on his left femur. After suspecting abuse, a social worker from the Grand County Department of Social Services (DSS) interviewed defendant and subsequently obtained a court order to perform a urinalysis on her. Defendant tested positive for amphetamine, marijuana, and methamphetamine. The police searched defendant’s home pursuant to a warrant and seized several items, including drug paraphernalia, miscellaneous containers containing marijuana, marijuana concentrate, and methamphetamine. Following a jury trial, she was acquitted of the child abuse charge, but was found guilty of possession of one gram or less of a schedule II controlled substance (methamphetamine), possession of marijuana concentrate, and possession of less than one ounce of marijuana.

On appeal, defendant contended that Amendment 64 of the Colorado Constitution should be applied retroactively and that her convictions for possession of marijuana concentrate and possession of less than one ounce of marijuana should be vacated. The quantity of marijuana and marijuana concentrate possessed by defendant fell within the safe harbor established by § 16(3)(a) of Amendment 64. Because defendant’s convictions were pending appeal when Amendment 64 became effective, her convictions for possession of marijuana concentrate and less than one ounce of marijuana were reversed and vacated.

Defendant further argued that her methamphetamine conviction should be reversed because the trial court erred by allowing a police officer to testify regarding the physical effects of methamphetamine use without requiring that the officer be qualified as an expert pursuant to CRE 702. A lay witness may express an opinion as to whether a defendant was under the influence of drugs, provided that a proper foundation has been laid. As a lay witness, the officer was permitted to testify about his observations based on his eleven years of experience as a police officer. Although the officer didn’t base his testimony on any specialized training, any error was harmless because the officer’s testimony was cumulative of other evidence. Therefore, the trial court did not abuse its discretion in admitting the officer’s testimony.

Summary and full case available here.

Winds of Change (Part 3)

rhodesMy wife is used to the kinds of research I do for these articles, but even she raised an eyebrow when I brought home James Hillman’s book Suicide and the Soul. “Is there something I should know?” she asked. Yeah, I think so. I think there’s something we all should know, not just about individual lawyer suicides, but also about how they mirror the collective, transformational death occurring in our profession.

Hillman called suicide “the urge for hasty transformation” – referring to the death of an individual psyche under the stress of personal transformation. In a postscript written 40 years later, Hillman added insights about the communal nature of suicide:

Once we have grasped that involvement [in relationships with others] is fundamental to the soul, we would be inescapably connected by definition, turning and twisting the threads of our fate with the souls of others. Others are entangled in your death as you are in theirs. Suicide becomes a community matter.

No suicide dies or takes his life alone; the rest of the community dies and takes his life with him. We don’t want to hear that. We quickly deny any personal responsibility, avoid the topic, turn away when it comes up. Hillman explains our response this way:

This [community aspect] helps account for the common reaction against those who attempt suicide. They are not welcomed with sympathy by family, friends or clinic, but rather are met with anger and disgust. Before we sympathize with a person’s plight or pain that may have occasioned the attempt, we blame; we find ourselves spontaneously annoyed, outraged, condemnatory. I do believe this all too common response points to the enduring strata of the psyche that we all share, call it our archetypal humanity. We are societal animals, as well as having individual destinies. Something insists we belong to a wider soul and not to ourselves alone.

This is why lawyer suicide stories are so disturbing to those left behind – such as the CNN story that prompted this series, or this one about a prominent Washington, D.C. lawyer who shot himself in his office after changing his voice mail greeting to say, “As of April 30, 2009, I can no longer be reached. If your message relates to a firm matter, please contact my secretary. If it concerns a personal matter, please contact my wife.”

Can’t you just see yourself doing that? I can. Change the voice mail message, set up an out-of-office email reply, write a memo about the status of pending cases… be the consummate professional to the end. A comment in that story is illustrative of Hillman’s individual/community insight:

To some his final act was a rebuke to what his beloved profession had become—a statement made in the very office he had been told to vacate.

The legal profession is a controlled access community, and once we’re in the club we have a lifetime membership. (“Once a lawyer always a lawyer.”) When one of our members is lost, we all lose. We can gloss over the statistics and get back to work, but we cannot remain unaffected.

Concerned bar leaders have written monographs such as this one, detailing the causes and signs of individual psychological distress and exhorting us to notice who’s not bearing up so well. They have their place in promoting help for the afflicted individual, but they do not reach the terminally fearful dynamics of communal transformation. For that, we need to also examine the systemic context which allowed – or maybe even promoted – that level of individual distress in the first place.

To be continued.

Kevin Rhodes is a lawyer in private practice and a registered mentor with the Colorado Supreme Court’s CAMP program. He offers career coaching for lawyers and leads workshops for a variety of audiences, including the CBA’s Solo and Small Firm Section and the Job Search and Career Transitions Support Group. You can email Kevin at kevin@rhodeslaw.com.

Tenth Circuit: Expert Testimony on Gang Affiliation Properly Admitted

The Tenth Circuit Court of Appeals published its opinion in United States v. Archuleta on Tuesday, December 17, 2013.

Nathan Archuleta was a leader of the Tortilla Flats gang in New Mexico. The Tortilla Flats are an affiliate of the Sureños, a group of gangs with ties to the Mexican Mafia. In June 2009, Archuleta orchestrated a plan to smuggle methamphetamine from Mexico into the United States. The scheme was unsuccessful and Archuleta was arrested and indicted.

Before trial, Archuleta filed a motion to exclude gang-affiliation expert testimony. The district court held two hearings and ruled that Lujan, the government’s gang expert, could testify about the Sureños gang, the significance of its tattoos, structure, activities, and affiliation with the Mexican Mafia. Archuleta objected, and the court overruled his objection.

A jury convicted Archuleta of possession of methamphetamine, possession of methamphetamine with intent to distribute, conspiracy to possess methamphetamine with intent to distribute, and being a felon in possession of a firearm. Archuleta appealed. On appeal, Archuleta contended that admission of a gang expert’s testimony violated Federal Rules of Evidence 403, 702, and 704(b). Of these three evidentiary rules, only Rule 403 was raised by Archuleta before the district court. As a result, the court’s review of his arguments pertaining to Rule 702 and Rule 704(b) was limited to plain error review.

Rule 403 permits a court to exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence. Fed. R. Evid. 403. After reviewing the record, the Tenth Circuit was not persuaded that the district court abused its discretion in allowing the government’s gang expert to testify. His testimony was not cumulative, confusing or misleading, or unfairly prejudicial.

Rule 702 requires a district court to satisfy itself that the proposed expert testimony will assist the trier of fact, before permitting a jury to assess such testimony. The court held that Archuleta failed to explain how the relevant evidence regarding gangs, which no other witness covered, was unhelpful to the jury’s understanding of the implications of Archuleta’s membership in the Tortilla Flats gang.

Archuleta’s final argument was that Lujan’s testimony violated Rule 704(b) because it was the functional equivalent of an opinion that Mr. Archuleta in fact had knowledge of the smuggling scheme. Under Rule 704(b), in a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense. The question was whether he improperly testified about Archuleta’s mental state.  The court admitted that, even if Lujan’s testimony violated Rule 704(b), Archuleta could not demonstrate plain error. This demanding standard required him to show, among other things, that the error must have affected the outcome of the district court’s proceedings. This he did not show.

AFFIRMED.

SB 13-250: Amending the Provisions for Sentencing of Persons Convicted of Certain Drug Crimes

On Monday, April 1, 2013, Sen. Pat Steadman introduced SB 13-250 – Concerning Changes to Sentencing of Persons Convicted of Drug Crimes. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill creates a sentencing option for offenders convicted of certain drug felonies that allows the court to vacate the felony conviction and enter a misdemeanor conviction in its place if the offender successfully completes a community-based sentence.

For level 4 drug felonies, the bill creates an exhaustion of remedies requirement prior to the court sentencing the defendant to prison.

If an offender who is convicted of a level 4 drug felony is terminated from a community corrections sentence, the court shall hold a resentencing hearing or make written findings regarding the sentence.

The bill creates new felony and misdemeanor drug sentencing grids.

The bill amends the drug sentencing article short title and legislative declaration.

The bill assigns each of the drug crimes a new drug penalty based on the new felony and misdemeanor drug sentencing grids.

The bill prohibits a plea agreement that requires the defendant to waive his or her right to petition to have the conviction record sealed.

When a defendant is sentenced to probation for a drug misdemeanor, the court may impose residential drug treatment as a condition of probation.

The bill amends the intensive supervision probation program to allow defendants convicted of a misdemeanor to participate if they are assessed as higher risk.

The bill adds all drug felonies to the habitual sentencing schemes.

The bill makes conforming amendments.

The bill authorizes the statewide organization representing district attorneys the ability to receive, manage, and expend state funds in the manner prescribed by the general assembly on behalf of the district attorneys who are members of the organization.

Under current law, drug offenders convicted after July 1, 2011, have the opportunity to have their conviction sealed. The bill conforms those provisions to the new drug offense classifications.

The bill requires the division of criminal justice in the department of public safety to collect data on drug cases and issue a report by Dec. 31, 2016.

The bill was introduced on April 1 and it is assigned to the Judiciary Committee.

SB 13-219: Implementing Rules for Remediation of Property Contaminated by an Illegal Drug Lab

On Friday, March 15, 2013, Sen. Lois Tochtrop introduced SB 13-219 – Concerning the Remediation Performed on Property Contaminated by an Illegal Drug Laboratory. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Currently, the state board of health may promulgate rules for the cleanup of illegal drug labs. The bill requires the board to implement and promulgate rules addressing the following:

  • Testing and evaluating contamination;
  • Training and certifying people to assess and clean up illegal drug laboratories;
  • Approval of consultants’ or contractors’ trainers; and
  • Certifying that property meets the cleanup standards established by the board.

The board is also directed to establish fees and administrative penalties to implement these standards.

Currently, a person who documents cleaning up an illegal drug lab to the board’s standards is immune from a lawsuit but the manufacturer of the illegal drugs is not immune. The bill adds, as a person who is not immune, a person convicted of possession of chemicals, supplies, or equipment with intent to manufacture the illegal drugs.

A person who violates a rule of the board is subject to a penalty of up to $15,000. The bill sets procedures for notifying a person of an alleged violation and issuing an order and establishes standards for taking administrative action and determining the penalty. The bill is assigned to the Health & Human Services Committee.

Colorado Court of Appeals: Plea Counsel for Criminal Defendant Should Have Advised of Mandatory Deportation but No Prejudice Shown

The Colorado Court of Appeals issued its opinion in People v. Campos-Corona on Thursday, February 28, 2013.

Crim.P. 35(c)—Ineffective Plea Counsel.

Defendant appealed from an order denying his motion for relief pursuant to Crim.P. 35(c). The judgment was affirmed.

Defendant was charged with one count of possession of a schedule II controlled substance with intent to distribute, and one count of conspiracy to distribute a schedule II controlled substance. He pleaded guilty to an added count of distribution of a schedule II controlled substance in exchange for dismissal of the original charges and a more favorable sentencing range. After successfully completing his sentence to probation, he faced deportation proceedings.

Defendant filed a Crim.P. 35(c) motion to seek to withdraw his plea on the ground that plea counsel was ineffective in advising him regarding the immigration consequences of his guilty plea. At the post-conviction hearing, plea counsel testified that he advised defendant that a guilty plea would make renewing his permanent residence status difficult, if not impossible, and he would likely be deported. Plea counsel stated that defendant wanted to plead guilty to try to be sentenced to probation and would deal with the immigration issue later. Plea counsel acknowledged that he had not told defendant that the plea would subject him to a mandatory removal provision from which no discretionary relief could be had.

Defendant testified that plea counsel advised him that he “would [or] could have problems” renewing his permanent resident status. He gave conflicting testimony as to whether he was advised he could be deported as a result of pleading guilty. He testified that if he had been told in absolute terms that he would be deported, he would not have entered a guilty plea. The post-conviction court found plea counsel’s representations were adequate regarding potential deportation.

On appeal, defendant argued it was error to deny his petition for post-conviction relief. The Court of Appeals found that counsel’s performance was deficient, but agreed the petition was properly denied for failure to sufficiently demonstrate prejudice. A criminal defendant is entitled to relief for ineffective assistance of counsel by showing that (1) counsel’s performance fell below an objective standard of reasonableness, and (2) a reasonable probability exists that but for counsel’s errors, the defendant “would not have pleaded guilty and would have insisted on going to trial.”

Here, 8 USC § 1227(a)(2)(B)(i) mandates removal for violation of any law relating to controlled substances other than a single offense involving possession of marijuana for personal use of thirty grams or less. Defendant admitted a significant quantity of cocaine was found in his possession and at his home. He was not advised that pleading guilty would subject him to mandatory, permanent removal. Plea counsel’s performance was not reasonable and the trial court’s finding otherwise was in error.

However, the Court agreed that even if inadequate advice was provided, defendant failed to show he was prejudiced. The Court deferred to the trial court’s findings that his testimony established only that he wanted to avoid prison and therefore it would not have been rational for him to proceed to trial. The order was affirmed.

Summary and full case available here.

Tenth Circuit: No Fourth Amendment Violation in Search of Defendant’s Home

The Tenth Circuit published its opinion in United States v. Garcia on Wednesday, February 13, 2013.

A confidential informant told Agent Latin about a quantity of methamphetamine consistent with trafficking in Robert Garcia’s possession. The informant said the methamphetamine could be found in Garcia’s residence and described the residence as a single-wide mobile home without an address but bearing the number 32 on its west end. Latin included this description and a photograph of the residence in the affidavit and application for the search warrant he presented to a state judge. Unfortunately, he mistakenly identified the residence as 1220 Mescalero Street. The state judge issued a warrant to “search forthwith the person or place described in the Affidavit.” Although it commanded police to conduct the search “forthwith,” the search of Garcia’s residence did not occur until nine days after the warrant issued.

The police executed the search against the single-wide trailer bearing the number 32 as depicted in the photograph in Latin’s affidavit, even though that residence was not 1220 Mescalero Street. In the end, officers found approximately 54 grams of methamphetamine, marijuana, pills, around $30,000 in cash, drug paraphernalia, security cameras, ledgers, and other drug-related items inside the home.

Garcia moved to suppress the evidence. The district court denied the motion. Garcia pled guilty to possession with intent to distribute five grams or more of methamphetamine, which allowed him to appeal from the denial of his motion to suppress.

On appeal, Garcia contended the district court should have suppressed evidence obtained from a search of his residence. He argued the warrant was invalid because (1) it was stale and (2) the address on the warrant did not match his residence.

Staleness: The Tenth Circuit found no Fourth Amendment violation because the affidavit’s statements regarding continuous criminal activity situated this case within the case law making the passage of nine days less critical. The delay in the execution of the search warrant did not undermine the probable cause to search Garcia’s home. Even assuming the officers failed to abide the warrant’s instruction to execute it “forthwith,” the failure added almost nothing to the Court’s assessment of the reasonableness of the search.

Proper Premises: Regardless of the error concerning the address, the issuing judge clearly intended for the officers to search the residence described and depicted in the warrant application. There was never any doubt about which residence police should search. The Tenth Circuit held this practical reality outweighed the technical error in the warrant. The description was sufficient to enable the executing officer to locate and identify the premises with reasonable effort, and there was no reasonable probability that another premise might be mistakenly searched.

In sum, the warrant was executed before it became stale and within the time constraints of the federal rules. And, because the warrant adopted the supporting affidavit’s unambiguous description of the residence, the address mismatch is of no consequence.

AFFIRMED.