December 16, 2009

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.

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