December 16, 2009

Colorado Supreme Court 11-9-09

People v. Nichelson     Preliminary Hearings / District Court Authority to Restore Preliminary Hearing
Mr. Nichelson waived his preliminary hearing based upon a supposedly false assumption or miscommunication with his lawyer (i.e. the DA reneged on the deal and claimed it was always a different offer - that is just me assuming). Once in District Court, Mr. Nichelson wanted his prelim back because he did not waive for the offer the DA now claims was always the offer on the table. The District Court found it did not have the authority to restore Mr. Nichelson's preliminary hearing. The Colorado Supreme Court reversed, and held the District Court does have the authority to restore a person's preliminary hearing if the waiver was based upon faulty premise such as miscommunication of the offer from the lawyer.

Colorado Supreme Court 12-14-09

People v. Gutierrez    Fourth Amendment Standing / Expectation of Privacy in Tax Returns / Probable Cause / Good Faith Exception
Last year, Weld County Sheriff's Deputies seized thousands of tax forms from a tax preparer, Amalia's Tax Service, in Greeley in order to prosecute alleged illegal immigrants for identity theft. The Court found that the IRS code requires all persons who earned income in the United States to file a tax return, whether legal or illegal. Further, the Court noted the tax code provides a procedure for those who do not have or cannot get a social security number. Lastly, the Court found that because of federal and state statutes, all persons possesses a reasonable expectation of privacy in their tax returns - even when those forms are in the hands of a tax preparer. Further, except for information on the snitch, the affidavit did not contain any information about anyone else who used the tax preparer's service. Thus, the Court held this lack of specificity could not be reasonably relied upon to search and seize thousands of tax returns - including Mr. Gutierrez's tax returns. Therefore, the Colorado Supreme Court affirmed the trial court's orders suppressing all the evidence gained as a result of the raid on the tax preparer. Not surprisingly, Justices Eid, Coates, and Rice each dissented from the opinion.
People v. Wittrein     Competency Hearing / Expert Testimony on Truthfulness / In Camera Review of Mental Health and Educational Records
The Colorado Supreme Court re-instated Mr. Wittrein's conviction on a slew of sexual assault on a child charges. Previously, the Court of Appeals reversed Mr. Wittrein's convictions because the trial court held a competency hearing in front of the jury. While not necessarily condoning the procedure, the Court held that there is no per se rule forbidding the trial court from holding a competency hearing in front of the jury. Further, the Court held that the expert impermissibly testified to the child's truthfulness on cross-examination, but that defense counsel invited the opinion. However, the prosecution first brought out from the expert the child tendency to hyper report. The Court stated on direct that, "Dr. Stern testified that K.H.'s 'scale for hyper-reporting' was 'highly elevated.' " Thus, defense counsel had no choice but to cross on this subject. Further, the Court held that the child did not waive confidentiality in the records, but that the educational records could be reviewed upon a showing by defense counsel that the records might contain relevant information. However, the defense made no such showing

Colorado Supreme Court 9-14-09

People v. Valenzuela        Extrordinary Risk Crimes and Conspiracy
Because conspiracy to distribute a controlled substance is not listed in the Extrordinary Risk statute, conspiracy to distribute is not an extrordinary risk crime.

Court of Appeals 12-10-09

People v. Daniels      Serious Bodily Injury
The Court of Appeals held that a broken rib constitutes serious bodily injury. Seriously.
People v. Ford        Equal Protection As Applied / Waiver
The Court of Appeals held that when Mr. Ford pled guilty he waived any 'as applied' equal protection claim. The CofA found that a guilty plea bars any claims based upon constitutional infirmities. However, exceptions exist, and a facial challenge to a statute would be one exception. Nevertheless, because Mr. Ford's equal protection claim fell under the 'as applied' analysis, he waived his right to raise this equal protection claim when he pled guilty.

Court of Appeals 11-25-09

People v. Curren     Conflict of Interest
Tom Carberry and Patrick Mulligan convinced Judge Ensor in Adams to reverse Mr. Curren's murder conviction, and the Court of Appeals affirmed. During the pendency of this double homicide, Mr. Curren was out on bond. According to Mr. Curren, while he was out on bond, his original lawyer advised him to leave the country. He did. However, when he came back, he told another lawyer his trial counsel advised him to leave the country. The trial lawyer denied the allegation, and from the opinion, it sounds like a heated argument ensued between the two lawyers. Mr. Curren chose to stay with the trial lawyer, the lawyer he accused of advising him to leave the country, and at trial, a jury only convicted him of 2 counts of felony murder and aggravated robbery (among a slew of other including after deliberation). After, the Court of Appeals affirmed the conviction, Mr. Curren filed a 35(c). At the 35(c) hearing, Judge Ensor found that the trial lawyer did not actually advise Mr. Curren to leave the country, but nevertheless, Mr. Curren's allegation created an actual conflict of interest, and reversed the murder conviction.
People v. Neuhaus    Conditional Pleas
Mr. Neuhaus entered into a plea bargain with the understanding he could still appeal the trial court's pretrial order denying his motion to suppress evidence. As the email that went around a couple weeks ago stated, the Court of Appeals held that Colorado does not permit conditional pleas, unlike in Federal Court or other jurisdictions. Thus, when Ms. Neuhaus pled, she waived her right to appeal any errors made by the trial court.
People Laeke        Right to Jury Trial
Mr. Laeke's trial counsel entered the plea of not guilty by reason of insanity over Mr. Laeke's objection. The prosecution stipulated to Mr. Laeke's insanity. The trial court found Mr. Laeke not guilty by reason of insanity, and committed him to the state hospital. On appeal, he asserts despite the prosecution's stipulation, he still has a right to a jury trial. The Court of Appeals agreed, and found neither trial counsel nor the prosecution can waive Mr. Laeke's right to jury trial, even in these circumstances.
People v. Crawford        Theft and Aggregate Value
Ms. Crawford contended that the trial court impermissibly allowed the jury to aggregate the value of items stolen. The issue was what was meant by the word "thing" in the statute. The defense pointed out other statutes and the theft statute account for multiple "things", but the specific section the prosecution convicted Ms. Crawford under only uses the singular "thing". Of course, silly defense lawyer, thing means things held the Court of Appeals.
 Johnson v. Griffin
Nancy Johnson, I am assuming the defense lawyer we all know, filed an interesting appeal. I attached that also - it concerns an election law, but kudos to Nancy for taking up the issue on her own. 

Court of Appeals 11-12-09

People v. Buerge        Sexually Violent Predatory and Fictitious Victim
In an internet sting operation case, the Court of Appeals held a person can be found to be a sexually violent predator even when there is no real victim.
People v. Nance        Probation Revocation and Waiver of the Two Prior Felony Rule
The Court of Appeals held that if the prosecution waived the two prior felony rule at the time of the plea, that waiver continues to apply at the sentencing hearing after a revocation of probation.
People v. Taylor    Self-Defense / Illegal Discharge of a Firearm
Mr. Taylor went to trial on charges of attempted first degree murder, attempted second degree murder, two counts of first degree assault, two counts of menacing, and third degree assault. The defense submitted a lesser-non of illegal discharge of a firearm, a class 5 felony. The defense also asked for a self-defense instruction on the lesser-non. The trial court submitted the lesser-non illegal discharge of a firearm to the jury, but denied the self-defense instruction. A jury convicted Mr. Taylor of the lesser-non and third degree assault. The Court of Appeals reversed the illegal discharge conviction, and held that because the illegal discharge of a firearm was a general intent crime, Mr. Taylor was entitled to a self-defense instruction.
Clark v. People     Record Sealing
Mr. Clark, retarded. First he lies to the cops and says he is driving instead of his kid. He is charged with a class 2 traffic misdemeanor. The traffic charge was dismissed, but he pled to false reporting - not comprehending that such a plea will revoke his SEC broker license. The DA agrees to pull the plea, and dismiss the case. Mr. Clark moves to seal, and the trial court denied his motion to seal the record. The Court of Appeals affirmed - apparently these types of traffic offenses, according to the opinion, cannot be sealed. Who knew?  

Court of Appeals 10-29-09

People v. Kirk    Invasion of Plea Negotiations by Trial Court
Appeal Dismissed
The prosecution charged Mr. Kirk with possession of meth, and other offenses. The offer on the table was an M1 possession. Day of trial, the defense and prosecution told the trial court they reached a disposition. The next day Mr. Kirk wants to back out, and re-set the case for trial - irritating the trial court. The Court of Appeals claims the trial court made improper statements to Mr. Kirk when he was hemming and hawing on whether to plead to the misdemeanor or go to trial on the class four felony. Mr. Kirk wisely pled to a misdemeanor. The trial court sentenced Mr. Kirk to 18 months jail. On appeal, Mr. Kirk claims the judge's involvement in plea negotiations was improper and coercive. However, the CofA dismissed the appeal. Mr. Kirk did not preserve the issue for appeal because he did not make the claim prior to sentencing. The CofA stated the other avenue of addressing his claim was through a 35(c) motion. Unfortunately, I think Mr. Kirk is out of time on that too. Tragic, he cannot withdraw his misdemeanor plea. This case reminds me of the Dooley dinner plate analogy of how a client's derriere will look when said client comes out of prison (People v. Adams, attached; PD Dooley in no uncertain terms told Mr. Adams prison will not be pleasant for him; Adams complained that Dooley's speech "forced" him to plead guilty; the CofA did not find Dooley's salty language coercive; hilarious and famous case).
People v. Hagos    Attorney-Client Conflict / Recusal / Warrants and Good Faith Exception / Admissibility of pending case as motive for murder /
Conviction for First Degree Murder Affirmed
What started originally as death penalty case because it was a witness killing,  ended with Mr. Hagos of convicted of first degree murder and other charges. The CofA did the following:
(1) held the trial court did not abuse its discretion in finding a conflict where the original attorney made himself a witness in the case. The trial court based its ruling on evidence that the attorney interviewed a witness, P.N. without anyone else present;
(2) held the trial court did not abuse it discretion by refusing to recuse itself from the case despite directing P.N.'s attorney to report any threats made by Mr. Hagos to the prosecution and police. (3) because Mr. Hagos failed to show an actual conflict, the CofA found no conflict existed between Mr. Hagos and his ADC lawyer despite the ADC lawyer' prior representation of both a DA in the case and the DA's family;
(4) held no conflicted existed between the ADC lawyer and Mr. Hagos. ADC attempted to withdraw, asked for and was granted an ex parte hearing in front of another judge, but refused to provide a factual basis of the conflict to the trial court. The CofA held the trial court did not err in refusing ADC's attempt to withdraw because ADC refused to provide the factual basis for the conflict. 
(5)  found the officers acted reasonably (good faith) when they relied upon the affidavit; the CofA assumed without finding the affidavit lacked probable cause;
(6) held that it was not plain error for the trial court to admit as evidence of motive that Mr. Hagos faced a mandatory minimum on a case in Jeffco in which the deceased was a witness; despite a later holding by the Colorado Supreme Court, in a different case, that a special offender conviction carries no such mandatory prison;
(7) held the trial court violated Mr. Hagos' right to confront witnesses by admitting the confession of a co-defendant, but such error was harmless beyond a reasonable doubt;
(8) held, "the preliminary hearing testimony should have been excluded from evidence under the Confrontation Clause unless the forfeiture by wrongdoing doctrine applies..." The CofA then remanded back down to the trial court to determine if the so-called wrongdoing doctrine applies (wrongdoing doctrine is where the state claims a defendant purposely made the witness unavailable for trial);
(9) various other issues, but none amounted to anything significant.
People v. Clendenin    Medical Marijuana and Definition of "Caregiver"
Conviction for Cultivation Affirmed
"In this case, we conclude that to qualify as a “primary caregiver” under Colorado Constitution article XVIII, section 14, a person must do more to manage the well-being of a patient who has a debilitating medical condition than merely supply marijuana." This holding seems to contradict Judge Naves' finding yesterday when he threw out the Board of Health' reworking of the definition of 'caregiver'.

Court of Appeals 10-15-09

People v. Schrieber             Felony Indencent Exposure and Right to a Jury trial under Apprendi-Blakely / Burden of Proof
Issue:  Whether Mr. Schrieber had a right to have the prior convicitions for indecent exporsure tried to a jury instead of a court?
Secondary Issue: What is the burden of proof on the prior indecent exposure convictions?
Holdings: The Court of Appeals held, with little reasoning, that the felony indencent expoure statute was a recidivist statute, and thus, a person does not have a right to have the prior convictions for indecent exposure tried to a jury. The Court of Appeals cited Apprendi and Blakely to justify its holding, and took but a sentence to disregard Justice's Thomas statement that a majority of THE COURT now find that a person does have a right to a jury trial in recidivist situations. Although, I think Justice Thomas's proclamation may not be as true with the current court.

Further, the Court of Appeals pointed out the statute is silent on the burden of proof. Nevertheless, with conclusory statements, the Court of Appeals held that the prior indecent exposure convitions do not need to be proven beyond a reasonable doubt. The Court of Appeals found the preponderance standard was sufficient despite that this charge elevated a simple misdemeanor to a felony, and thus, the prosecution can do so based simply on a preponderance of evidence. Here's to hoping the Colorado Supreme Court, heck while I am dreaming, the U.S. Surpeme Court uses this opportunity to state the priors must be proven beyond a reasonable doubt to a JURY. Oh, and I want to win the lottery, have world peace, and to save all species everywhere from any harm.
People v. Wood        Make My Day - Immunity v. Defense  / Reviewable issue
The decease and his girlfriend offered to sell meth to Mr. Wood. Mr. Wood invited the couple back to his home. At the home, Mr. Wood shot the deceased. The first issue was whether the trial court erred in not granting immunity from prosecution to Mr. Wood under the Make My Day statute (Make My Day provides both a defense and immunity from prosecution). The CofA held it did not have any authority to address the issue, and likened it to the reviewing a preliminary hearing finding of probable cause or summary judgement - one the verdict is in, the issue is moot.

Further, the trial court ruled that Mr. Wood could not get into the prior prostitution convictions of the deceased's girlfriend because those conviction were neither probative of truthfulness nor felony convictions. However, the trial court ruled there might be other basis to admit the convictions, but held off ruling on the admissibility until trial. From reading the opinion, it does not appear the defense ever addressed the issue again.
People v. Aguilar-Ramos     35(c) Appeal
The trial court summarily dismissed Mr. Aguilar-Ramos' 35(c) without making any factual findings. The CofA held that was error, but ruled on the issues in Mr. Aguilar-Ramos' 35(c) because the issues were legal in nature. A jury convicted Mr.  Aguilar-Ramos of F2 kidnapping (where the complaining witness claims to be a victim of sexual assault), but aquitted him of sexual assault. The CofA held this verdict does not violate double jeopardy. The Court reasoned that the F2 Kidnapping not only punishes the perpetrator of the sexual assault, but also anyone who is convicted of kidnapping where the complaining witness was a victim of sexual assault. The CofA also held there was no Apprendi/Blakely error because the trial court sentenced Mr. Aguilar-Ramos in the presumptive range.

People v. Brante        Sixth Amendment / Appointment of Counsel
Mr. Brante dismissed his public defender, and chose to represent himself. The trial court appointed advisory counsel. During trial, the trial court held Mr. Brante in contempt, and removed him for the court room. Mr. Brante refused to participate further in the trial. The Court then excused advisory counsel, and continued on with the jury trial without mr. Brante through verdict. The issue was whether it was a violation of Mr. Brante's Sixth Amendement rights to not appoint counsel when the pro se defedant is removed for contemptable behaviour. The CofA held that not appointing counsel did not violate Mr. Brante Sixth Amendment right to be represented by competent counsel. Further, the Court held Mr. Brante was not entitled to a Choice of Evils instruction.
People v. Hancock    Challenge for Cause
The CoA reversed Mr. Hancock's conviction when the prosective juror would not hold the prosecution to its burden of proof. Significantly, neither the trial court nor the prosecution did any rehabilition of the witness. Further, the trial court made no findings. The record of the questioning is lengthy, but essentially the juror was "on the fence" on the burden of proof standard.
People v. Maestas        Consecutive Sentences / Abuse of Discretion
Ms. Maestas took police in Adams County on a high speed chase. She pled to second degree assault naming three police officers, vehicular eluding, and aggravated motor vehicle theft. The trial court imposed consecutive sentences. The CofA held that the trial court did not abuse its discretion by imposing consecutive sentences. The CofA reasoned that 1) Counsel acknowledged consecutive sentences were a possibility; 2) the defense never back out of the plea agreement based upon the possibility consecutive sentences; 3) the trial court did not violate its statutory authority in imposing the consecutive sentences because not all the convictions were based on identical evidence - despite the same named victim in two charges.

People v. Buckner    Conflict Free Counsel / Right to Self-Representation / Cell phone numbers and hearsay / Preservation of Evidence - currency / Cumlative Error / Proportionality / Sufficiency of the Evidence
Mr. Buckner disagreed with court appointed counsel's trial strategy, and claimed the attorney did not take his suggestions seriously. The CofA held strategy is not a basis for a conflict even where the client disagrees. Further, the CoA held that Mr. Buckner did not clearly make his claim that he wanted to proceed pro se. The CoA also held that a cell phone showing the phone number called is not hearsay. The CofA, citing other jurisdictions, chose view the number on the Cell phone as non-hearsay. The CofA reasoned records kept automatically by devices are not hearsay, and admitting the entire phone complete with other text messages was not error. The CofA held the error if any on releasing the currently involved in the case back into circulation was harmless error. Lastly, the CofA found there was sufficient evidence (eye-witness testimony) to support a conviction, and that the 15-year sentence for an F3 distribution conviction did not violate the 8th Amendment's ban on Cruel and Unusual Punishment.
People v. Samuels         Conflict Free Counsel / 4th Amendment - Probation Violation as a Justification to Search / Voir Dire - Challenges for Cause and Length of Voir Dire / Fair Trial - Prosecution's use of Mr. Samuels Nickname During Trial
A jury convicted Mr. Samels of 1st Degree Extreme Indifference Murder and various other charges. Nothing in the case really helps us much as each basis for appeal was batted away. Thus, I lifted this brief summary form the syllabus. The CofA held:

(1) probation officer's reasonable suspicion that defendant had violated conditions of his probation; was sufficient to justify search of defendant's bedroom;
(2) defense counsel's previous representation of prosecution witness did not create conflict of interest with defendant;
(3) challenge for cause with respect to prospective juror was not warranted;
(4) limiting defense counsel's voir dire to 60 minutes, rather than allowing 90 minutes defendant requested, was not abuse of discretion; and
(5) allowing prosecutor's references to defendant's nickname was not improper.

Court of Appeals 10-1-09

People v. Tucker    Attorney-Client Privilege
Conviction Affirmed       
A jury convicted Mr. Tucker of various fraud offenses. Mr. Tucker, a first year intern with the DA's Office in Alamosa, sent a letter to his defense lawyer in Montana. In Montana, the prosecution alleged that Mr. Tucker violated a restraining order against his wife. Mr. Tucker, pretending to be the elected DA in Alamosa, wrote a letter to his defense lawyer in Montana. The letter (hiliarious in form and function) attacked the judge in Mr. Tucker's Montana criminal case with the vigor and gusto of which only a stalking ex-husband is capable. Upon receipt of the letter, Mr. Tucker's defense lawyer first called the judge's office, and then forwarded the letter to the judge.  The lawyer claimed he was afraid for the judge's safety. The lawyer also forwarded a copy of the letter to the actual DA in Alamosa. The CofA found that the lawyer's action fall under fraud the exception to the Attorney/Client privilege. Twice in two months the CofA handed down opinions where the defense lawyers sold out their clients. Unfortunately here, the CofA held against Mr. Tucker. On the the bright side, that is one less DA in the world.

People v. McBride        Closing Argument and Prosecutorial Misconduct 
Conviction Reversed (Attempted Murder Count)        
The CofA reversed Mr. McBride's convictions for attempted first degree murder and first degree assault.
Here is how the CofA outlined the prosecutor's egregious behaviour:
A. The flagrant improprieties
            1. Accusing defendant of having “lied over and over”
            2. Inflammatory appeals to jury emotions
                        a. Calling defendant a “coward”
b. Personal attacks on the defense expert
c. Exhortations to “do justice” for “strangers”
            3. Misstating the presumption of innocence
            4. Distorting a key element of attempted first degree murder
-          The CofA found the yellow-light analogy of whether to stop or go through inapt, and specifically found such an analogy blurred the line between impulsive acts, and acts done after deliberation.
B. Prejudice – the CofA reasoned:
“First, the types of improper arguments made here threaten a defendant's right to a fair trial. The arguments not only were replete with long discredited “liar” arguments and highly inflammatory personal attacks but also employed a one second-yellow-light analogy that eviscerated a key legal element. Second, the improprieties were pervasive. They were even more wide-ranging in kind and degree than those in prior cases finding reversible and plain error, respectively. Third, the defense did nothing to invite the attacks. The “invited response” doctrine does not “license” improper arguments but can help gauge whether
“taken in context, [the arguments] unfairly prejudiced the defendant.””

People v. O'Neal    Statutory Construction
Conviction Affirmed       
A jury convicted Mr. O'Neal of possession of a weapon by a previous offender. The issue on appeal was the inoperable gun Mr. O'Neal possessed when he was harassed by the cops. The CofA held, regardless of operability, if the weapon is a firearm, a conviction can be sustained under the statute.

People v. Riley    Self-Defense and Multiple Assailants
Conviciton Affirmed           
A jury convicted Mr. Riley of attempted reckless manslaughter, reckless second degree assault, and a crime of violence. The issue was whether the trial court instructed the jury properly on self-defense and multiple assailants. The CofA held it did not, but found the error to be harmless.

People v. Tillery    SAC / Position of Trust / Double Jeopardy / Prosecutorial Misconduct / Illegal Sentences
Conviction Affirmed       
Of significance, the CofA held the 60 year floor on an indeterminate sentence to be illegal because the trial court had no such authority to set just a high floor on an indeterminate sentence. The trial court can only set a floor between the minimum in the presumptive range to twice the maximum of the presumptive range.
I lifed the remaining synopsis from the syllabus.
The Court of Appeals, Webb, J., held
(1) evidence of other acts of sexual contact was admissible as evidence of a pattern of sexual assault against same victim;
(2) forensic interviewer's recorded statements did not impermissibly vouch for victim's credibility;
(3) trial court acted within its discretion in denying mistrial after victim testified about a previously undisclosed sexual contact with defendant;
(4) prosecutor's improper closing comments that defendant lied were not plain error;
(5) the pattern and POT convictions were based on unanimous jury findings;
(6) on issue of first impression, unpreserved double jeopardy claim involving alleged sentencing error would be reviewed for plain error;
(7) imposition of separate sentences for the pattern and POT convictions did not violate double jeopardy;
(8) sentence for each SAOC offense could be enhanced based on evidence of pattern acts; and
(9) imposition of a lower term of 60 years for indeterminate life sentences exceeded what was authorized by law.

People v. Villa         SAC / Confrontation and Rape Shield / Equal Protection and Rape Sheild / 404(b) / Prosecutorial Misconduct
Conviction Affirmed

Lifted from the syllabus
The Court of Appeals, Graham, J., held
(1) evidence of defendant's prior sexual assaults on another child was admissible to prove intent;
(2) rape shield statute does not violate a defendant's right to fully confront and cross-examine an accuser;
(3) on issue of first impression, rape shield statute does not violate equal protection;
(4) evidence that a different uncle previously had raped the other child who testified as to other crimes evidence was inadmissible under rape shield law exceptions;
(5) any misstatement in prosecutor's closing argument about the presumption of innocence was not plain error.

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