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

that:

(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.