December 16, 2009
Court of Appeals 10-29-09
People v. Kirk Invasion of Plea Negotiations by Trial Court
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'.