August 20, 2019

Colorado Supreme Court: No Error in Trial Court’s Decision Not to Allow Witness to Testify Via Skype

The Colorado Supreme Court issued its opinion in People v. Gutierrez on Monday, September 17, 2018.

Motions to Continue—Abuse of Discretion.

In this interlocutory appeal, the supreme court held that the trial court did not abuse its discretion by denying the People’s request to have their witness testify remotely via Skype. Trial courts have broad discretion to control the manner in which witnesses offer testimony, and a decision to prohibit a witness from testifying is reviewed for an abuse of discretion. Because the trial court worked extensively to accommodate the witness, the People were on notice about the importance of the witness appearing in-person, and because denying the People’s request to allow the witness to testify remotely is not outcome determinative, the court concluded that the trial court did not abuse its discretion.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Trial Court Erred in Refusing to Grant Continuance

The Colorado Court of Appeals issued its opinion in People v. Senette on Thursday, July 26, 2018.

Criminal Law—Witness—Subpoena—Motion for Continuance—Bench Warrant.

The prosecution charged defendant with aggravated robbery and menacing against a single victim, M.T. When M.T., who was a necessary witness and was under subpoena, did not appear at trial, the prosecution requested that the trial court issue a bench warrant and grant a brief continuance to secure the M.T.’s attendance. The trial court denied both requests and, at defendant’s request, dismissed the charges.

On appeal, the People argued that the trial court erred by denying its motion for a continuance and dismissing the case. The trial court abused its discretion in denying the continuance because it (1) misapplied the law regarding the issuance of a bench warrant as a remedy to procure the attendance of a missing witness, and (2) failed to consider the factors relevant to the prosecutor’s motion to continue. Those factors included whether the prosecutor was diligent in securing the witness’s attendance, whether a continuance would be effective in securing the witness’s attendance, and the prejudice that a continuance would cause both parties.

The People also contended that the trial court erred in dismissing the charges after denying the continuance. Because the trial court erred in denying the motion for continuance, and the dismissal of the charges was a direct result of that erroneous decision, the trial court erred in dismissing the case.

The order was reversed and the case was remanded.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Special Prosecutor Unnecessary for Post-Trial Proceeding

The Colorado Supreme Court issued its opinion in People v. Ehrnstein on Monday, May 21, 2018.

Special Prosecutors—Colo. RPC 3.7—Post-Trial Proceedings.

In this interlocutory appeal, the supreme court reviewed the trial court’s order appointing a special prosecutor for the purpose of litigating defendant’s post-trial motion for a new trial. In his motion, defendant alleged that the prosecution had improperly instructed a witness to evade a defense subpoena. The trial court concluded that the Colorado Rules of Professional Conduct compelled it to appoint a special prosecutor for the purposes of the hearing on this motion because, subject to exceptions not pertinent here, Colo. RPC 3.7 prohibits an attorney from acting as both an advocate and a witness during the same proceeding.

The court concluded that the trial court abused its discretion in appointing a special prosecutor because that court misapplied the law when it found that Colo. RPC 3.7 required the appointment of a special prosecutor in the circumstances present here. Specifically, the rule serves to prevent prejudice that arises from jury confusion in cases in which an attorney serves as both counsel and witness. Because this proceeding arose in the context of a post-trial motion, that concern is not implicated.

The court reversed the trial court’s order and remanded this case for further proceedings.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Defendant’s Exculpatory Statement to Police Admissible Under Rule of Completeness is Not Subject to Impeachment

The Colorado Court of Appeals issued its opinion in People v. Short on Thursday, April 5, 2018.

Sexual Assault on Child—Testimony—Credibility—Rule of Completeness—Exculpatory Statement—Hearsay Exceptions—Sentence.

A jury found Short guilty of sexual assault on a child and sexual assault on a child as a pattern of abuse.

On appeal, Short contended that the testimony of three witnesses improperly bolstered the victim’s credibility. Short did not object to any of this testimony. It was not improper for the therapist to testify as an expert as to the typical demeanor and behavioral traits displayed by a sexually abused child. It was also not improper for the detective to testify concerning his observations about child victim disclosures; he rendered no opinion about whether a child’s difficulty in disclosing something made it more or less likely that he or she was telling the truth. Finally, although the grandmother’s testimony that the victim “normally would not lie about something like that” was improper, it did not warrant reversal.

Short also argued that the trial court erroneously compelled him to forgo admitting an exculpatory part of a statement he gave to the police by telling him that, if that part of the statement was admitted, the prosecution would be permitted to expose the jury to the fact that he had previously been convicted of a felony. The trial court properly determined that Short’s otherwise inadmissible self-serving hearsay was admissible under the rule of completeness to qualify, explain, or place into context the evidence proffered by the prosecution. However, a defendant’s exculpatory statement to the police admissible under the rule of completeness is not subject to impeachment under CRE 806. Although the trial court erred, the error was harmless.

Short also contended and the People conceded that only one judgment of conviction and sentence should have been imposed in this case. The trial court incorrectly entered separate convictions for sexual assault on a child and sexual assault on a child as a pattern of abuse. The pattern of abuse count acts only as a sentence enhancer.

The judgment was affirmed in part and vacated in part, and the case was remanded with directions.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Multiple Errors from Prosecutorial Overreach Did Not Influence Outcome of Trial

The Colorado Court of Appeals issued its opinion in People v. Howard-Walker on Thursday, June 15, 2017.

Batson Challenges—Peremptory Strikes—Jurors—Testimony—Expert Opinion—Lay Witness—Prosecutorial Misconduct—Jury Instructions—Cumulative Error Doctrine.

Defendant was charged with first degree burglary and conspiracy to commit first degree burglary. Among other evidence presented, his girlfriend and Detective Garcia testified at his trial. He was convicted as charged and sentenced.

On appeal, defendant contended that the trial court erred when it denied his challenges, under Batson v. Kentucky, to the prosecutor’s peremptory strikes excusing three prospective jurors—one who identified himself as African-American and two who identified themselves as Hispanic—asserting that the prosecutor’s “race-neutral” reasons for removing the jurors were not worthy of belief. One challenged juror was disinterested, the second juror had a negative experience with law enforcement and a belief that police officers sometimes misidentify suspects, and the third juror had previously faced criminal charges from the same district attorney’s office and had a negative view of law enforcement. Therefore, the trial court’s Batson findings are supported by the record.

Defendant next argued that the admission of several portions of Garcia’s testimony constituted reversible error: (1) Garcia was not admitted as an expert witness, but gave opinions regarding whether the gun depicted in the video surveillance was real. Although this was improper, it did not constitute plain error. (2) Garcia testified about the manner in which the gun was being used. Any error in admitting this testimony was harmless. (3) It was not error for Garcia to identify defendant. No specialized knowledge is necessary to recognize an individual in a video and this evidence was probative of a material fact. (4) Garcia testified regarding probable cause, which was not relevant; however, this was not plain error. (5) Garcia testified but had no personal information about the reasons why defendant’s girlfriend was crying during the police interview. This testimony was not obviously improper and did not undermine the fairness of the trial. (6) Garcia opined about defendant’s statement regarding another perpetrator. Even if this was improper, it did not undermine the fundamental fairness of the trial. (7) Garcia opined about the truthfulness of defendant’s statements to police. Though this testimony was improper, it does not rise to the level of plain error because there was other sufficient evidence to support his conviction.

Defendant next asserted that the prosecutor engaged in reversible misconduct. Although the prosecutor stepped over the line when he repeatedly suggested that the girlfriend was committing perjury, the prosecutor did not threaten or coerce her, and any misconduct was not reversible. The prosecutor also commented on the girlfriend’s truthfulness. The evidence supported a reasonable inference that her testimony was false, and thus these comments were proper. Finally, although the court did not condone the prosecutor’s comment on defendant’s decision not to testify, the comment did not amount to plain error.

Defendant further argued that the trial court erred when it failed to instruct the jury on the predicate crime of theft and when it failed to define the word “intent.” While the jury instructions were deficient, (1) the record demonstrates that the specification of the underlying crime was not a controverted element of the burglary offense; therefore, the court’s failure to instruct the jury on theft was not plain error, and (2) under the circumstances of this case, the court’s failure to define the culpable mental state similarly did not constitute plain error.

Finally, defendant argued that the cumulative effect of the trial court’s errors and prosecutorial misconduct violated his right to a fair trial. The errors were relatively small events occurring over a two-day trial during which substantial evidence was presented. Defendant received a fair trial in spite of the identified errors.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Defendant Has No Right to Access Witness’s Competency Evaluation

The Colorado Court of Appeals issued its opinion in People v. Zapata on Thursday, May 19, 2016.

Defendant’s ex-girlfriend claimed the owner of the convenience store at which she worked had sexually harassed her, including grabbing her crotch, buttocks, and breasts. Defendant and his friend of six months, Murillo, went to the convenience store late one night, and Murillo quickly walked behind the counter and stabbed the owner’s son with a knife. A high-quality surveillance video showed the ensuing struggle, with Defendant watching from the other side of the counter. When the owner’s son began hitting Murillo on the head with a hammer, he pleaded with Defendant for help, and Defendant turned and ran.

Defendant was charged with conspiracy to commit first degree murder, attempted first degree murder, and first degree assault. Murillo, who suffered permanent brain damage as a result of the incident, was charged separately. He pleaded guilty in his case and testified at Defendant’s trial, remarking that he was testifying against Defendant because Defendant had left him at the store to die. The jury found Defendant guilty of attempted second degree murder and first degree assault.

He appealed, contending the district court erred by not requiring the prosecution to disclose statements Murillo made during competency evaluations in his separate trial and by admitting res gestae evidence of defendant’s controlling and threatening behavior with his ex-girlfriend. The court of appeals found no error. As to the competency evaluations, the district court ruled that Defendant was not entitled to them as a matter of law, and the court of appeals agreed. The court noted that Murillo had a valid privilege that he did not waive. The court further found that Defendant’s Confrontation Clause rights did not trump Murillo’s privilege.

The court of appeals also found that if there was error in admitting the res gestae evidence regarding Defendant’s controlling behavior, it was harmless. The court noted that even without the res gestae evidence, the prosecution’s evidence in the case was strong and the defense theory was weak, therefore even if the evidence was erroneously admitted, any error was harmless.

The judgment of conviction was affirmed.

Colorado Court of Appeals: Remand Necessary Where Mother Improperly Vouched for Child’s Veracity

The Colorado Court of Appeals issued its opinion in People v. Cernazanu on Thursday, September 10, 2015.

Sexual Assault on a Child—Testimony—Veracity.

For a number of years, defendant lived with his female cousin and her young daughter, I.W. I.W. was friends with J.K. According to J.K., when she was between the ages of 6 and 8 years old, defendant, on numerous occasions while she was sleeping, sexually assaulted her. I.W. also reported that defendant sexually assaulted her when she was 8 years old. A jury found defendant guilty of three counts of sexual assault on a child and sexual assault on a child (pattern of abuse).

On appeal, defendant contended that the trial court erred in permitting J.K.’s mother, C.D., to essentially testify that J.K. was not lying when J.K. first reported that defendant had sexually assaulted her. A witness may not opine with respect to whether another person was telling the truth on a specific occasion. Here, when C.D. testified that J.K. did not engage in her typical “lying” behavior on that occasion, it implied C.D.’s opinion that J.K. was telling the truth on that occasion. Therefore, the evidence elicited by the prosecution in this case was improper. Because there was no physical evidence of, or eyewitness testimony to, the alleged sexual assaults against J.K., and defendant did not admit to sexually assaulting her, J.K.’s credibility was the critical issue before the jury in determining whether the sexual assaults had occurred. Consequently, the error was not harmless. Defendant’s convictions were reversed and the case was remanded for a new trial.

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

Tenth Circuit: Witness Tampering Charges Affirmed Where Potential Witness Told to Lie About the Important Stuff

The Tenth Circuit Court of Appeals issued its opinion in United States v. Sparks on Friday, June 26, 2015.

Gary Sparks’ daughter, Stacy Ashley, was imprisoned pending trial on charges of distribution of a controlled substance with death resulting. H.L., Ms. Ashley’s daughter, was supposed to testify at trial that she saw her mother and the deceased exchange pills on the night the man overdosed. Three weeks before trial, Sparks took his granddaughter, H.L., to visit her mother in jail, and after seeing Ms. Ashley they went to dinner. H.L. reported that at dinner, Sparks told her “I heard you should only lie about the important stuff,” but Sparks said he only told her that everything would be okay and reassured her to have faith. H.L. never testified at her mother’s trial, but prosecutors eventually learned about the exchange with her grandfather and charged Sparks with two counts of witness tampering. Sparks was convicted and sentenced to 36 months’ imprisonment followed by two years of supervised release. Sparks appealed, arguing the evidence was insufficient to support his conviction and the jury was not properly instructed on an affirmative defense.

The Tenth Circuit first evaluated Sparks’ sufficiency claim. Sparks argued the evidence was insufficient to support his conviction because the phrase “you should only lie about the important stuff” was insufficient to qualify as an attempt to corruptly persuade. Sparks said that because he did not direct his granddaughter to lie he could not have “persuaded” her to do so. The Tenth Circuit disagreed. Analyzing the meaning of the word “persuade” in context of its prior precedent, the Tenth Circuit found no need for “an act, a threat, an emotional appeal, or persistent pleading” in order for a statement to be viewed as persuading. The Tenth Circuit found ample evidence to support the jury’s conviction based on the familial relationship, the proximity of the trial, and the timing of the statement right after seeing H.L.’s mother in jail.

Turning to Sparks’ contention that the jury was not properly instructed on the affirmative defense that his conduct consisted solely of lawful conduct encouraging the witness to testify truthfully, the Tenth Circuit again affirmed the district court. The Tenth Circuit found Sparks’ argument failed at the first prong of plain error review, because even viewing the evidence in the light most favorable to Sparks he did not encourage H.L. to testify truthfully.

The Tenth Circuit affirmed Sparks’ convictions.

Colorado Court of Appeals: Adverse Inference Instruction Allowable where Non-Party Invokes Fifth Amendment

The Colorado Court of Appeals issued its opinion in McGillis Investment Company, LLP v. First Interstate Financial Utah, LLC on Thursday, August 13, 2015.

Fifth Amendment Privilege Invoked in Front of Jury by Nonparty—Adverse Inference Instruction.

This appeal, as stated by the Court, “follows a long and complicated history, ncluding prior litigation in Utah, an earlier appeal to this court, an eight-day trial, and a series of motions brought before, during, and after the trial and verdict. A voluminous record, spanning thousands of pages, contains an exhaustive rendition of the facts.”

McGillis Investment Company, LLP’s (MIC) principal, McGillis, and First Interstate Financial Utah, LLC’s and First Interstate Financial LLP’s (FIF) principal, Thurston, worked to finance a multitude of commercial real estate loans between 1995 and 2009. This dispute concerns a 2003 loan made by MIC and FIF to Kersey Commercial Park, LLC (Kersey Commercial) for $1.85 million (Kersey Loan) to purchase sixty-three acres of property to develop an industrial park (Kersey Property). When Thurston recommended that MIC finance the Kersey Loan, MIC did not know that the purchasers were involved in a series of transactions of questionable legitimacy surrounding the Kersey Property.

Kersey Commercial never made a payment on the Kersey Loan and was in default by May 2004. Thurston, on behalf of MIC and FIF, executed a Dry-Up Agreement on July 29, 2004, which sold certain Water Rights of the Kersey Property to Lower Latham Reservoir Company in return for a payment of $785,000 to one of the developers. In October 2004, MIC and FIF commenced foreclosure proceedings and on May 12, 2005 purchased the Kersey Property at foreclosure for $1.6 million. On June 6, 2006, FIF sued the appraisers. On November 8, 2006, Thurston had MIC execute an assignment of the Property (Assignment) from McGillis Investments to FIF (though the purpose of the Assignment is disputed). In 2012, FIF settled the appraiser litigation for $438,500 and remitted the proceeds to MIC.

In February 2009, FIF sued Sytech Development (one of the developers) over the Kersey Loan. After McGillis’s son took over MIC in 2008, he concluded that FIF had breached its fiduciary duty to MIC in a variety of transactions, and in April 2009, MIC filed suit in Utah against FIF. In October 2012, the jury returned a verdict in MIC’s favor for $1.25 million. Three days after the Utah verdict, FIF recorded the Assignment with the Weld County Clerk and Recorder. FIF settled the Sytech litigation on November 17, 2012 for $20,000.

On June 1, 2011, MIC filed this lawsuit against FIF, seeking to quiet title to the Kersey Property and damages for breach of fiduciary duty for FIF’s recording the Assignment and settling the Sytech litigation. On cross-motions for summary judgment, the trial court granted partial summary judgment based on claim preclusion in favor of FIF as concerned the validity of the Assignment and quieted title to the Kersey Property in FIF. MIC appealed, and a division of the Court of Appeals affirmed in part and reversed in part, vacating the decree quieting title and reversing the summary judgment on claim preclusion. Following trial on remand, the jury returned a verdict for MIC for $1,300,625 and found that MIC owned the Kersey Property.

In this appeal, FIF argued that the trial court did not follow the Court’s mandate on remand by failing to determine whether MIC knew or should have known of the Assignment’s validity when it filed the Utah action and that it was error to allow the Sysum brothers to invoke their Fifth Amendment privilege against self-incrimination in front of the jury and in giving an adverse inference instruction. In civil cases, an adverse inference may be drawn against a party who invokes the Fifth Amendment privilege against self-incrimination. The Court found no Colorado case addressing whether a nonparty witness’s invocation of the Fifth Amendment privilege constitutes admissible evidence. It adopted the analysis set forth in LiButti v. United States, 107 F.3d 110, 123 (2d Cir. 1997): the admissibility of a nonparty’s invocation of the Fifth Amendment privilege and concomitant drawing of adverse inferences should be considered on a case-by-case basis to ensure any inference is reliable, relevant, and fairly advanced. The overarching concern is whether the adverse inference is trustworthy and will advance the search for the truth.

Based on the record before it, the Court found no error in the trial court’s having decided that one of the brothers could answer a generic question, to which he invoked his Fifth Amendment right, and that there was enough evidence presented to give the adverse inference instruction as to him. The Court found it was error to allow the other brother to invoke his Fifth Amendment privilege because there wasn’t enough evidence to involve him in the alleged fraud. However, the trial court remedied this error when it did not give the adverse inference instruction as to this brother but told the jury to disregard his invocation of the privilege.

FIF also argued that it was error for the trial court not to have determined whether MIC knew or should have known there was a dispute concerning the Assignment’s validity when it filed the Utah action. The jury did consider this issue, but FIF argued it should have been the trial court that made the determination. The Court disagreed. The law of the case established in MIC I was to determine what MIC knew or should have known and there was an interrogatory to the jury that covered this issue. The jury’s answering of the interrogatory resolved the factual dispute dispositive of claim preclusion against FIF and that satisfied the law of the case.

The Court also rejected FIF’s arguments that MIC could not re-litigate anything concerning the Kersey Loan transaction other than the issue concerning the validity of the Assignment and the settlement of the Sytech litigation. The Court determined that this argument was based on a fundamental misunderstanding of the prior ruling in MIC I on the part of FIF. The judgment was affirmed.

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

Tenth Circuit: Witness Testimony from Coconspirators who Received Plea Deals Not Inherently Unreliable

The Tenth Circuit Court of Appeals issued its opinion in United States v. Dewberry on Tuesday, June 23, 2015.

During an investigation of Virok Webb for crack cocaine distribution, the government became suspicious of Kennin Dewberry as Webb’s dealer. Some time in 2009 or 2010, Dewberry began supplying between 4.5 and 9 ounces of cocaine powder weekly to Webb, and Webb would convert the powder to crack cocaine or cut it with other ingredients (a process known as “the trick”) to double the quantity of powder. In October 2011 a grand jury issued a superseding indictment charging Dewberry, Webb, and others with two drug conspiracies: Count 1 charged them with conspiring to distribute 280 grams or more of crack cocaine and Count 2 charged them with conspiring to distribute 5 kilograms or more of powder cocaine. The government also filed an information stating that Dewberry had a prior felony marijuana conviction.

Dewberry filed a motion to sever his trial in March 2012, which the trial court denied as premature. He filed another motion to sever in February 2013, which the trial court granted. Dewberry’s trial was held in July 2013, and the government’s case was built almost entirely on the testimony of cooperating witnesses. All of the witnesses entered into plea agreements with the government. Dewberry moved for judgment of acquittal under F.R.Crim.P. 29 at the close of the government’s case and again at the close of his case, but the trial court denied both motions. The jury convicted Dewberry of both counts, and also issued special verdicts pertaining to the amount of drugs and finding he conspired to distribute 280 grams or more of crack cocaine and 5 kilograms or more of powder cocaine. In the PSR, the probation office recommended Dewberry be held accountable for 4.5 ounces of cocaine per week for a 21-week period, and of that he should be accountable for conversion of 2.5 ounces to crack cocaine. The remaining 2 ounces per week was doubled by employing “the trick,” and together these drug amounts equated to a base offense level of 34, which would lead to a presumptive sentencing range of 168 to 210 months, but Dewberry faced a mandatory minimum 20 year sentence because of his prior felony conviction. The district court adopted the PSR’s findings, sentencing Dewberry to concurrent sentences of 240 months for Count 1 and 168 months for Count 2. Dewberry appealed his convictions and sentence.

The Tenth Circuit first evaluated Dewberry’s sufficiency challenges to both counts. Dewberry asserted the government’s evidence was insufficient because it relied on cooperating witnesses who were not reliable and whose testimony was uncorroborated. The Tenth Circuit first noted that it would not reverse a conviction solely because the verdict was based on the uncorroborated testimony of a coconspirator. The Tenth Circuit similarly noted that credibility challenges are generally disfavored and found no reason to entertain Dewberry’s. Although Dewberry asserted the witness testimony was self-serving because they were offered plea deals, the Tenth Circuit found such arrangements common in criminal cases and the arrangement does not necessarily render the testimony incredible.

The Tenth Circuit next considered Dewberry’s challenges to the sufficiency of the evidence concerning the amount of crack cocaine. The jury must have based its finding of 280 grams of crack cocaine on reasonable foreseeability because there was no evidence that Dewberry handled that much. Dewberry contended that the quantity could not have been reasonably foreseeable to him. The Tenth Circuit disagreed, finding sufficient evidence to support the jury’s finding. The Tenth Circuit affirmed the conviction and 240-month sentence.

The Tenth Circuit considered Dewberry’s challenge to the amount of powder cocaine for which he was held responsible. Dewberry argued the amount of crack cocaine attributed to him was incorrect, which affected the amount of powder cocaine. The Tenth Circuit affirmed the district court’s finding, noting that because it made a plausible finding it was not clearly erroneous.

Finally, Dewberry argued the court erred in denying his first motion to sever and causing him to experience undue delays waiting for trial. The Tenth Circuit disagreed, finding Dewberry could show no prejudice since the trial court granted his second motion to sever and finding the issue of Speedy Trial Act delays inadequately briefed.

The convictions and sentences were affirmed.

Colorado Court of Appeals: Scope of Police Officer’s Testimony Within Knowledge of Average Computer User

The Colorado Court of Appeals issued its opinion in People v. Froehler on Thursday, July 30, 2015.

Child Pornography—Lay Testimony—Personal Observations—Specialized Knowledge.

Froehler accidently left a flash drive on a public business computer at a hotel. The flash drive was recovered by two hotel guests, who opened it and found that some of the files contained child pornography. They turned over the flash drive to hotel security, who contacted police. A jury found Froehler guilty of sexual exploitation of a child.

On appeal, Froehler contended that the trial court abused its discretion by allowing the detective who investigated the case to give improper lay testimony. The detective testified about her personal observations of the dates the files on the flash drive were created and modified. Admission of the detective’s lay testimony was proper under CRE 701 because the method she used to view the dates did not require any specialized knowledge or familiarity with computers beyond that of the average lay person. The detective’s testimony about the ImageScan software program used to search Froehler’s home computers, however, was improperly admitted as lay testimony because this testimony did require specialized knowledge about the software. Nevertheless, its admission was harmless because no child pornography had been found on Froehler’s home computers and this evidence had no direct bearing on whether Froehler “knowingly possessed” the child pornography on the flash drive. The judgment was affirmed.

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

Colorado Court of Appeals: No Error in Allowing Lay Witness Testimony about Shoeprint Similarity

The Colorado Court of Appeals issued its opinion in People v. Vigil on Thursday, July 2, 2015.

Challenge for Cause—Burglary—Simple Variance—Unanimity Instruction—Lay Witness—Footprint Evidence.

A jury convicted Vigil of second-degree aggravated motor vehicle theft and second-degree burglary for taking a truck, motorcycle, flat-screen television, DVD player, and stereo from Casey Caldon’s farm. On appeal, Vigil contended that the trial court reversibly erred when it denied his challenge for cause to juror C.A. Although C.A. had performed electrical work for the Caldons over a number of years, he did not exhibit any bias and his statements indicated he could render an impartial verdict. Therefore, the trial court did not err in denying Vigil’s challenge for cause as to this juror. Vigil also claimed that the court erred in granting the prosecutor’s challenge for cause to prospective juror D.K. because that juror might have voted to acquit him. Here, Vigil’s claim failed because a defendant is not entitled to have any particular juror serve in his or her case.

Vigil also asserted that the prosecutor’s closing argument impermissibly expanded the second-degree burglary charge to include burglary of the “lean-to” (a shed up against a shop on the farm). In the bill of particulars, the prosecutor alleged that Vigil burglarized three structures: the trailer, the north shop, and the tractor. In closing argument, the prosecutor alleged that Vigil entered the lean-to to steal the truck. Therefore, a simple variance occurred. Because Vigil did not suffer prejudice from the simple variance, however, reversal was not warranted.

Vigil further argued that the trial court reversibly erred by not giving a modified unanimity instruction regarding the burglary count. Where the incidents occurred in a single transaction, such as here, the prosecutor need not elect among acts, and the trial court need not give a modified unanimity instruction. Therefore, the trial court did not err by not giving the modified unanimity instruction to the jury.

Vigil argued that the trial court erred by permitting Sergeant Crown, a lay witness, to testify about shoeprint evidence and by not excluding the shoeprint evidence for failing to disclose a Colorado Bureau of Investigation (CBI) report indicating that its analysis of the shoeprint evidence was inconclusive. Crown’s testimony was based on general measurements and peculiarities common to the shoeprints and Vigil’s shoes that were readily recognizable to a lay witness. Accordingly, the trial court’s finding that Crown’s testimony did not constitute expert opinion was not manifestly unreasonable, arbitrary, or unfair. Finally, the discovery violation did not result in reversible error because the content of the CBI report was presented through Crown’s testimony. The judgment was affirmed.

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