Colorado Court of Appeals decision 12-9-10

People v. Moore            Defective Curtis advisement   / Juror Miscoduct / Confrontation Clause and Pen Packs         

Facts: A jury found Mr. Moore guilty of attempted first-degree murder,

two counts of first-degree burglary, first-degree assault, sexual assault, menacing, and violation of a protection order. Further, the trial court adjudicated Mr. Moore to be a habitual offender. During the Curtis advisement, the trial court advised Mr. Moore,” ‘the Prosecutor may ask you what [your] prior felony conviction or convictions were for’ and ‘whether the convictions were by a guilty plea, or whether you actually went to trial, and were found guilty at the trial.’ “ In People v. Gomez, the Court of Appeals “held that ‘in cross-examining a defendant, the prosecutor may not ask whether a prior felony conviction arose from a plea or a trial,’ and that a Curtis advisement to the contrary is erroneous.” (Moore, quoting Gomez)(emphasis added).

Issue: Whether the trial court committed plain error with a defective Curtis advisement?

Held: No.

Reasoning: Because Colorado law was unsettled and because a different division of the Court of Appeals did not decide Gomez until after Mr. Moor’s trial the error did not amount to “plain error”.

Issue: Whether the trial court abused its discretion by not excusing a juror who’s husband read to her Mr. Moore’s criminal history from the newspaper?

Held: Ummm… did you see the crimes in which the jury convicted Mr. Moore? Then it was not error.

Reasoning:  

The CofA outlined this procedure for dealing with prejudicial publicity,

“A trial court should deal with juror exposure to prejudicial publicity during trial as follows:

1) the trial court must determine whether the publicity is inherently prejudicial;

2) if so, the court should canvass the jury to determine whether the jury learned of the prejudicial publicity; and

3) the trial court should individually examine exposed jurors to determine how much they know of the publicity and what effect, if any, the publicity will have on their deliberations.”

After the article on Mr. Moore’s case came out in the newspaper, Juror S disclosed that her husband read the entire article to her “from another room.” Juror S claimed to not have paid much attention, that she did not remember anything from the article, and of course, she could be “fair and impartial.” (hahaha….seriously, with bitch counts thrown into the mix?) Further, Juror S claimed that she did not tell her husband to stop for fear of violating the trial court’s order to not discuss the case at all with anyone.  The CofA affirmed the trial court’s decision to keep Juror S on the panel.

Issue: Confrontation and Pen Packs

The CofA found no Confrontation Clause error in admitting the pen packs.

Colorado Supreme Court decisions 11-30-10

People v. White        Juror Qualifications – Residency

Ann Roan previously sent around an email about this decision. The Colorado Supreme Court held that a juror no longer living in Teller County and who did not intend to move back to Teller County anytime soon, still qualified as a resident of Teller County. The Court reasoned that because the juror was a college-aged kid (although not actually in college or any educational institution), lived with his sister, had just moved from his dad’s house in Teller County, and at some point in his life intended to move back. Justice Coats, he of strict Constitutional interpretation when it limits our clients’ ability to address violations, wrote for the majority, “Beyond these syntactical considerations, statutory definitions, and interlocking statutory schemes, interpreting the existing juror qualification statute as providing for broad-based juror eligibility on the basis of either majority presence in the county or maintaining a domicile there comports with both the realities of our contemporary mobile culture and the extremely minimal nature of constitutional vicinage requirements. Ensuring that jury verdicts result from the common sense judgment of lay representatives of the community and that an accused is provided with a fair opportunity for obtaining a representative cross section of the community on

the jury is in no way furthered by hyper-restrictive residency requirements.” Read a history of Justice Coats decisions, and you will find that he limits any statute to prevent a plaintiff in the civil arena from winning, he reads defense objections very narrowly, and he limits any exercise of constitutional rights by the accused in criminal cases. Yet, now he wants to read a straight forward residency statute broadly, and just coincidentally, that reading obviates the need for a re-trial of Mr. White. Incredible result oriented decision.

People v. Martinez Closing Argument – Prosecutorial Misconduct - Tailoring Argument / Harmless Error

Essentially, the Colorado Supreme Court, unlike the U.S. Supreme Court, held that a prosecutor cannot make a generic tailoring argument. 

Facts: The prosecution asserted that Mr. Martinez ‘tailored’ his testimony to fit the evidence at trial. The Court of Appeals found the prosecution did not violate Mr. Martinez’s rights because the record of the trial supported the prosecution’s argument. Interestingly, the Colorado Supreme Court pointed out that the CofA went through the record to support the prosecutor's argument, but the prosecutor only generically reference how Mr. Martinez tailored his testimony.

Issue: Whether Colorado law prohibits prosecutors from making generic tailoring arguments?

Whether the prosecution's tailoring argument is harmless error?
Held: Yes and Yes.

Reasoning: The Colorado Supreme Court defined generic tailoring arguments: “Generic tailoring arguments occur when the prosecution attacks the defendant's credibility by simply drawing the jury's attention to the defendant's presence at trial and his resultant opportunity to tailor his testimony.” The Court tracked and cited favorably U.S. Supreme Court Justice Ginsberg’s dissent in Portuondo v. Agard, 529 U.S. 61, 120 S.Ct. 1119, 146 L.Ed.2d 47 (2000). In Potuondo, the U.S. Supreme Court held that tailoring arguments do not violate the Federal Constitution. Although Mr. Martinez's counsel objected, the Colorado Supreme Court determined that Mr. Martinez failed to raise this issue under the Colorado Constitution because Mr. Martinez's counsel did not cite specifically cite the Colorado Constitution in the objection. Nevertheless, the Court found the prosecutor’s argument improper because the prosecutor argued only generically that Mr. Martinez tailored his argument. In finding the argument improper, the Court wrote, “During rebuttal argument, the prosecutor referenced defendant's presence at trial two times. The prosecutor first suggested that the defendant had been ‘able to sit in here the whole time and listen to what everybody had to say.’ The prosecutor then asked the jury ‘to judge the credibility of all witnesses’ because he ‘was able to tailor his statement with what everybody else had to say because he's been here.’ In all three instances, then, the prosecutor clearly failed to tie her tailoring arguments to evidence in the record. Instead, the prosecutor merely referenced the defendant's presence at trial, asking the jury to draw an unreasonable inference regarding the defendant's credibility. These are precisely the types of generic tailoring arguments that rise to the level of improper trial argument.”  Unfortunately, the Court found the prosecutor’s argument improper only under Rule 52(c) – not the Colorado Constitution (again, because trial counsel did not cite the Colorado Constitution specifically in his objection). Thus, the Court easily found that the error did not rise to the level of a plain error.  As Ann Roan stated in her previous email, always cite the Federal and Colorado constitutions not only in your motions and briefs, but also in your objections and arguments.

Colorado Court of Appeals decision 11-24-10

People v. Allen         Withdrawl of Plea – Misapprehension of Sentence – New Evidence – Possible Previously Undisclosed Defense / Sexually Violent Predator

Synopsis: Factually, pretty simple - Mr. Allen’s DNA matches the sperm found on a female neighbor who said some masked stranger broke into her home, and raped her for hours. Procedurally, also very simple - stellar private counsel works out deal for Mr. Allen to plead guilty to first-degree sexual assault, crime

of violence, second degree burglary, and second degree assault. Most astoundingly, Counsel and got Mr. Allen to stipulate … STIPULATE!!! to this sentence: 10 – 25 years in prison, and an indeterminate sentence up to the rest of Mr. Allen’s natural life. Again, Counsel stipulated to that deal. After plea, but prior to sentencing, Mr. Allen got wise, and fired the private lawyer. The Court appoints the PD’s Office. Mike McHenry, err… Honorable Mike McHenry, former PD in the Springs Office and all-around excellent lawyer, tried to withdraw Mr. Allen’s plea to no avail.

Issues:

            Whether Mr. Allen misapprehended the possible sentence?

            Whether Lariam Toxicity defense could necessitate withdrawl of Mr. Allen’s plea?

            Whether the trial court erred in ignoring SVP evaluation and found Mr. Allen to be a sexually violent predator?

Held: No and No and No.

Reasoning:   

Misapprehension: The Court of Appeals essentially bought the plea lawyer’s version of events over Mr. Allen’s. (On its face, I cannot imagine, after 15 ½ years of practicing criminal law, a client knowingly and intelligently pleading to this deal. Clients who face a ton of time become more and more strident as the final date comes closer to avoid the inevitable sentence.)

New evidence or Possible Defense as a reason to withdraw plea: The CofA held that Lariam Toxicity did not qualify as ‘new evidence’ and did not justify a withdrawl of Mr. Allen’s plea. The CofA skirted the whole new evidence issue and made a series of conclusory statements to justify the holding, “As the [trial] court noted, defendant's signed plea agreement indicated that he forfeited the right to raise defenses by pleading guilty. Because the record indicates that defendant was advised of the guilty plea's consequences, we conclude that he entered his plea knowingly and voluntarily.”

Ignoring the SVP determination: Incredibly, despite the stranger-hours-long rape, the evaluator found Mr. Allen did not qualify as a ‘sexually violent predator’. However, the trial court disagreed, and found Mr. Allen to be a sexually violent predator. The CofA affirmed the trial court, reasoning that the SVP evaluation is a guide not a mandate for judges. Thus, judge can free disregard the SVP findings if the judge did not abuse his/her discretion. Good to use when some ignorant judge claims that he/she/it must follow the SVP findings.

Colorado Supreme Court decision 11-22-10

People v. Wehmas             Warrantless Arrest & Search in a Home / Exigent Circumstances

Synopsis: The prosecution alleged Mr. Wehmas drove his car drunk, hit another car, and went into his apartment without exchanging information. Someone called the police to report the accident, and snitch on Mr. Wehmas. The police never sought a warrant. Instead, the police forced their way into his apartment, and arrested Mr. Wehmas when he was asleep in his bed.

Issues: The Court took cert. on two issues

1)    Whether DUI is a grave offense that can justify a warrantless search and arrest in someone’s home?

2)    Whether dissipation of a person’s blood alcohol content is a sufficient exigency to justify a warrantless arrest and search of someone inside their home?

Held: 1) Yes, the Court found DUI to be a grave offense.  2) However, the Court found no such exigency exited to justify not obtaining a warrant.

Reasoning:

            Grave Offense: In Welsh v. Wisconsin, 466 U.S. 740, 750, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984), Mr. Welsh allegedly drove drunk, drove off the road, crashed his car in a field, and abandoned the vehicle. The U.S. Supreme Court held that whatever a grave offense maybe, it was not Mr. Welsh’s alleged DUI. The Colorado Supreme Court differentiated Mr. Wehmas’s case from Welsh. The Colorado Supreme Court found that the U.S. Supreme Court held DUI as not a grave offense because Wisconsin classifies a first-time DUI as a non-criminal offense, non-jailable offense. The Colorado Supreme Court then went on to claim that the U.S. Supreme Court came up with a bright-line rule to define whether something is a “grave offense” – whether or not jail is a possibility. Because a first-time DUI in Colorado carries some possibility of jail, the Colorado Supreme Court held that DUI is indeed a ‘grave offense’.

            Exigent Circumstances: Thank the sweet baby Jesus however, the Colorado Supreme Court held no exigent circumstances existed to justify the warrantless arrest and search of Mr. Wehmas. The Court specifically addressed why dissipation of alcohol in Mr. Wehmas’s blood did not justify a warrantless arrest of him in his home.  The Court cited other evidence besides a chemical test, such as extrapolation based upon a BAC test and two eyewitnesses who stated Mr. Wehmas was drunk. Further, the Court found that Colorado couldn’t force a chemical test of someone’s blood when no there is no harm to a victim or violence alleged. Accordingly, the Colorado Supreme Court affirmed the District Court and County Court below which originally suppressed the evidence.

Colorado Court of Appeals decision 11-10-10

People v. Trujillo            Sex Offender Intensive Supervised Probation / Consecutive and Concurrent Sentences

Facts: Um… first let me say that I resisted the urge to look up the genius who worked out this deal for Mr. Trujillo. Mr. Trujillo pled to various offenses in Weld and Larimer counties. The genius part comes into play first by pleading Mr. Trujillo to a lifetime supervision sentence. Utter Brilliance. The second, running that stellar deal, lifetime supervision to probation, consecutively to his DOC sentence from Weld county – but concurrent with the parole. Guess what? Mr. Trujillo violated parole not once but twice. First he violated parole when he lived in the community, which caused the parole officer to regress him to community corrections. Second he violated parole while living in community corrections, which put him back in DOC. After the second violation of parole, his sweet and most decent probation officer filed a revocation of probation – using the two prior parole violations as the basis to revoke his probation. The district court found that Mr. Trujillo violated probation, and re-sentenced him to DOC. Awesome.

Issue: Can the district court order a probationary sentence to be served consecutively to a DOC sentence, but concurrent with the parole portion of that sentence?

Held: Sure, why not?

Reasoning: Because neither the general probationary sentence § 18-1.3-202 nor the more specific sex offender probation statute, § 18-1.3-1001 prohibit the imposition of such consecutive sentences, the trial court did not exceed its jurisdiction.

Colorado Supreme Court decision 11-15-10

People v. Vigil             Coerced Confession / Fruit of the Poisonous Tree

I lifted this synopsis from the Court:

“The supreme court affirms a trial court’s order suppressing a defendant’s confession because, under the voluntariness requirements of the Due Process Clause of the Fourteenth Amendment, two police officers coerced a confession from the defendant by using excessive physical force during an unlawful arrest. In addition, contraband discovered as a result of the confession and unlawful arrest was appropriately suppressed as fruit of the poisonous tree.

The supreme court also affirms the trial court’s suppression of the defendant’s subsequent confession because it was infected by his earlier, coerced confession. After his arrest, the defendant received six hours of medical treatment. He was released into the custody of the same officers who had coerced his first confession, and those officers questioned him at 2:00 am. As a result, the officers were the beneficiaries of their earlier, coercive conduct.” 

Colorado Court of Appeals decision 10-28-10

People v Zukowski            Make My Day / Jury Instructions           

Synopsis:  After some bitching back and forth between neighbors across the hall, the complaining witness goes to Mr. Zukowski apartment uninvited and enters. Mr. Zukowski comes a-swingin’ a machete at the complaining witness, and struck him in the head and torso. A jury convicted Mr. Zukowski of first degree assault after the trial court denied Mr. Zukowski’s motion to dismiss under Make My Day. The prosecution sought and the trial court granted their request to instruct the jury that Make My Day did not apply if the intruded had a “good faith” belief he could enter. Unsurprisingly, that became the issue on appeal.

Issue: Whether the trial court erred in instructing the jury by informing them that Make My Day did not apply if the complaining witness had a “good faith” belief that he was not breaking a criminal law?

Held: Yes. Case reversed and remanded for new trial.

Reasoning: This language from the Make My Day instruction caused the reversal:

“In order for this affirmative defense to apply, the other person’s unlawful entry into the dwelling must have been made in knowing violation of the criminal law. An entry made in the good faith belief that it is lawful, is not an entry made in knowing violation of the criminal law.” (emphasis in the original opinion)

No where in the make my day statute does that language exist, as the Court of Appeals noted. The CoA simply reasoned that putting the onus on someone faced with an unlawful entry to decide whether the intruder had a “good faith” belief when making the unlawful entry is too great, and not required by policy or the statute.  

Colorado Supreme Court decision 10-25-10

People v. Montes-Rodriguez             Criminal Impersonation – Sufficiency of the Evidence

Synopsis: Mr. Montes-Rodriguez applied for a car loan using his real name, birth date, address, and employment information. However, he used a fictitious social security number. A jury convicted him of criminal impersonation, and the Court of Appeals affirmed. The Colorado Supreme Court reversed his conviction.

Issue: Is merely using a fictitious social security number enough to convict someone of criminal impersonation when that person uses his real name, date of birth, address, employment, etc.?

Held: No.

            The Supreme Court held:

“[Mr.]Montes- Rodriguez’s false social security number was one of many pieces of identifying information submitted on his loan application. On the whole, by providing his proper name, birth date, address, and employment information, the evidence establishes that Montes-Rodriguez applied for the loan as himself, not as another person.

Accordingly, we reverse the court of appeals’ opinion upholding Montes-Rodriguez’s conviction. We remand this case to that court so that it may be returned to the trial court for entry of a judgment of acquittal.”

The Court divided the criminal impersonation statute into two portions:

1)    False Identity

2)    False Capacity

False Capacity: The Court went through the statute and determined that in each instance - marriage, bail, judgments in criminal law and civil court - carries a “distinct legal significance.” Further, the Court limited People v. Bauer 80 P.3d 896 (Colo.App. 2003) to its factual circumstances. In Bauer, Mr. Bauer held himself out to be a lawyer under his real name, address, social security number etc. However, the Colorado Supreme Court previously suspended Mr. Bauer’s license to practice law. Thus, when he held himself out as a lawyer and continued to practice law, he assumed a false legal capacity.

            Unlike Bauer, the Court found that the loan Mr. Montes-Rodriguez applied for did not legally require him to provide a social security number. The Court specifically stated, “Although Montes-Rodriguez may have lacked the practical capacity to obtain a loan through Hajek Chevrolet because they could not check his credit without a social security number, he did not lack the legal capacity to obtain a loan.”

False Identity:  The Court then went on to determine whether Mr. Montes-Rodriguez asserted a false identity when he applied for a car loan. The Court wrote, “He gave his correct address, birth date, and place of employment. Most importantly, he gave his correct name. In the face of so much accurate identifying information, we cannot conclude that Montes-Rodriguez pretended to be another person in his loan application simply because he supplied a false social security number. Hence, we conclude that Montes-Rodriguez did not assume a false identity.”

            Incidentally, the Court followed both People v. Jones, 841 P.2d 372, (Colo.App. 1992), and the dissent of Montes-Rodriguez in the Court of Appeals. I attached Jones, Bauer, and the Court of Appeals decision in Montes-Rodriguez, which contains the dissent the Supreme Court followed.

Court of Appeals decisons 9-30-10

Court of Appeals decisions 9-30-10

People v. Thronton                        Theft - Sufficiency of the Evidence and Value

The Court of Appeals held that that the Kelly Blue Book valuation for used cars is admissible as evidence at trial, and such evidence is sufficient to establish value beyond a reasonable doubt. Incidentally, whiny-ass dad called the police on his son to report that his son stole his car. A jury convicted the son of a class 3 felony. Nice work Pop.

People v. Garcia            Merger / Investigatory Stop / Length of Detention

The Court of Appeals found that the police did not violate Mr. Garcia’s rights when they held him until a K-9 dog arrived. The police justified the original stop on I-76 on an “unsafe lane change.” Upon searching Mr. Garcia’s truck, the police found over 400 lbs. of marijuana. The jury convicted Mr. Garcia of possession and possession with intent to distribute. The CofA found no problem with the ruse to hold Mr. Garcia and search his truck. The CofA did however merge the possession counts and the possession with intent to distribute counts. Further, the CofA reduced the amount of parole from 5 years to 3.

Court of Appeals decisions 9-2-10

People v. McClaren            Blood Tests / Voluntariness / Vehicular Assault – DUI

Facts: Mr. McClaren crossed the double yellow, hit another car, and caused a broken wrist to the drive of the other car. On scene, Mr. McClaren tells the EMT treating him that he had a beer earlier. Bloodhound cop claims she smelled alcohol on his breath. The cop never gave Mr. McClaren a choice, but ordered the phlebotomist to take two vials of blood to test. Mr. McClaren never refused a test.  The defense filed a motion to suppress the results of the blood test. The trial court suppressed the results, and did one better, the trial court dismissed both the DUI and the Vehicular Assault.

Issues: Whether the trial court abused its discretion when it suppressed the results of the blood test and dismissed the charges.

Held: No and Yes.

Reasoning: Regarding the suppressing of the results, the Court of Appeals held, “Because the trial court found the officer committed misconduct without justification by extraordinary circumstances or good cause, the trial court did not abuse its discretion by suppressing the results of the blood test.” However, the CofA also held that the dismissal is a drastic remedy, and this misconduct does not necessitate the dismissal of the charges.

People v. Bowerman            Restitution Amount / 35(a) / 35(b) / 35(c)

Synopsis: Ms. Bowerman moves into the complaining witness’s home. The complaining witness visits California for about a month, and asks Ms. Bowerman and her stellar boyfriend to watch her home while she is in California. While the complaining witness is gone, Ms. Bowerman and boyfriend hold a garage sale to sell the complaining witness’s crap – without the complaining witness knowing. The prosecution charged Mr. Bowerman with F4 theft, and she pled to an F5 attempted theft and an F6 false information to a pawnbroker.  Two years later, Ms. Bowerman complained in a 35(c)/35(a) motion that the procedure the trial court followed an illegal procedure at the restitution hearing. The trial court denied the motion, and the Court of Appeals affirmed, albeit on different grounds.

Issues: Does the 120-day rule apply when someone complains that the trial court imposed the sentence in an illegal manner?

Held: Yes.

Reasoning: Rule 35(a) Correction of Illegal Sentence: “The court may correct a sentence that was not authorized by law or that was imposed without jurisdiction at any time and may correct a sentence imposed in an illegal manner within the time provided herein for the reduction of sentence.” The Court of Appeals focused on the language “and may correct a sentence imposed in an illegal manner within the time provided herein for the reduction of sentence.” The Court of Appeals followed People v. Wenzinger, 155 P.3d 415 (Colo.App.2006), where another appeals court division held the 120 day limit in rule 35(b) applied to Rule 35(a) if the complaint alleges the trial court imposed the sentence in an illegal manner.

People v. Wylie            Mens Rea – Insanity vs. Negating Element / Sentencing

Some cases just make you angry. Mr. Wylie, obviously mentally ill, has a habit of throwing feces and urine on the douche bag bullies who choose to work as guards at the prison. The jury blew off his mental illness, and convicted him of four counts of second-degree assault. The female judge, debunking the myth of women as kinder and gentler, sentenced Mr. Wylie to 10 years on each count – CONSECUTIVELY (seriously, if you want all the accoutrements of being some f’in’ hero, like these friggin’ guards, and you profit from the misery of others, then f’ you and you may just suffer a bit of uncomfortable ickiness. There is a word rhymes with wuss).  In any event, the issues on appeal:  1) Did the instructions adequately inform the jury, and 2) Did the trial court abuse its discretion in sentencing Mr. Wylie. Yes, the instructions adequately informed the morons in Freemont County who made up the jury, and No, the suck up judge did not abuse her discretion in sentencing Mr. Wylie. Annoyingly, the CofA pointed out that defense counsel did not object to the sentence. I have no idea who, what, when, or why this has become an issue, but in the last few series of published opinions, the CofA pointed out that defense counsel did not object to the sentence at sentencing (no doubt, no defense lawyer knew he or she should because of the right to appeal the sentence – its not a frigging trial). The CofA stated:

“Defendant further contends the trial court erred in applying section 18-1.3-401(8)(a)(IV), C.R.S  .2009, to enhance his sentence. We perceive no error. Because defendant did not raise this issue in the trial court, we review for plain error. People v. Miller, 113 P.3d 743, 749-50 (Colo.2005). Plain error addresses error that is obvious and substantial, and so undermined the fundamental fairness of the trial as to cast serious doubt on the reliability of the

conviction. Id . at 750.”

Moral of the story: OBJECT at sentencing. Why? I have no idea, but object to preserve the clients right to appeal the sentence. I guess.

People v. Smith             Investigatory Stop vs. Arrest / Miranda / Credit Time Served

When you bend over backwards, you just may end up kissing your own butt. Here, the Court of Appeals bent over backwards to find that by arresting Mr. Smith and holding him in the patrol car during questioning, the police did not hold him in custody. Thus, the police had no duty to advise Mr. Smith pursuant Miranda. However,  the CofA threw Mr. Smith a bone, and found that the trial court abused its discretion by not granting Mr. Smith all the time he was due while being held in jail awaiting trial on this case.

Colorado Supreme Court decisions 9-27-10

Effland v. People             Miranda / Voluntariness / Custody / Prosecutorial Misconduct

Important case, short on time, so I lifted the following on a great holding by the Colorado Supreme Court:

“This case involves a failed suicide pact between Petitioner Phillip Effland, his wife, and adult daughter. Petitioner’s wife and daughter did not survive the incident; however, Petitioner did. Following his suicide attempt and the deaths of his wife and daughter, Petitioner was interrogated inside his hospital room by two police officers without the benefit of Miranda warnings. During the interrogation, Petitioner repeatedly stated that he did not wish to speak with the investigators until he had consulted with an attorney. The trial court denied Petitioner’s motion to suppress the statements he made during the interrogation. First, the trial court held that Petitioner was not in custody at the time of the interrogation and therefore was not entitled to Miranda protections. Second, because the court determined that Petitioner was not in custody, the court ruled that his invocations of the rights to remain silent and to counsel did not need to be honored. Third, the court held that Petitioner made the statements voluntarily. Finally, the trial court held that prosecutorial misconduct did not require suppression of the statements. The court of appeals affirmed.

We hold that Petitioner was in custody for Miranda purposes at the time of the interrogation and his statements should therefore have been suppressed during the prosecution’s case-in-chief. Having determined that Petitioner was in custody for Miranda purposes at the time of the interrogation, we do not reach the issue of whether, and to what degree, invocations of the rights to remain silent and to counsel must be honored in non-custodial interrogations. We also hold that Petitioner’s statements were not made voluntarily and must also be suppressed under the due process clauses of the United States and Colorado Constitutions. Finally, we hold that prosecutorial misconduct, if any, does not require suppression of Petitioner’s statements.”

Colorado Court of Appeals decisions 8-19-10

People v. Warner             Search Warrants

Facts: Mr. Warner challenged the search warrant affidavit used to justify a search of his home. The police based the affidavit mostly upon an informant’s statements. However, the police took the informant to Mr. Warner’s residence, watched the informant go inside Mr. Warner’s home, watched the informant come back out, and tell them that Mr. Warner would sell him, the informant, some methamphetamine. A defense investigator interviewed the informant, and the informant either contradicted or flat out denied making the statements the police claim the informant made in the search warrant affidavit. The defense investigator filed an affidavit with the motion to suppress.

Law: To attack a search warrant affidavit:

(1)  Establish a good faith basis in fact to challenge the warrant. The defense establishes the good faith basis by filing an affidavit or affidavits with a motion to suppress;

(2)  The motion must state, with specificity, the precise statements being challenged in the search warrant affidavit.

(3)  To get a hearing, the defense must establish by a preponderance of evidence that the search warrant affidavit contained statements where the affiant intentionally made false statements or the affiant made statements with a reckless disregard for the truth.

(4)  Burden at hearing: ‘We must uphold the validity of a warrant if the search warrant affidavit creates a substantial basis for concluding that probable cause exists. Any doubts must be resolved in favor of the issuing judge's determination.”

Held: The defense established enough to get a hearing. However, the defense did not establish enough to undermine the presumption of validity granted to the search warrant and supporting affidavit.

Analysis: The defense called no witnesses at the hearing, but instead relied solely upon the affidavits submitted in support of the motion to suppress. The CofA found, “It is one thing for a trial court to accept an affidavit to establish the existence of a dispute regarding the truth of the allegations in the search warrant affidavit. It is quite another to accept the same affidavit for the purpose of resolving that dispute. See, e.g., Doug Sears Consulting, Inc. v. ATS Services, Inc., 752 So.2d 668, 670 (Fla.Dist.Ct.App.2000) (affidavit not generally admissible at evidentiary hearing because it is not subject to cross-examination). Even in circumstances where affidavits are otherwise admissible, an affidavit not based on the affiant's personal knowledge will not suffice.” Also, the CofA found probable cause could be corroborated by non-criminal activity.

Tip: Call the affiant as a witness at the hearing. The defense may have had good reason not to call informant as a witness at the hearing. However, the defense also did not call the investigator who interviewed the informant to testify. Who knows if the defense would have won, but both the trial court and CofA summarily denied the motion to suppress when the defense did not call any witnesses.

People v. Stark           Vehicular Homicide / Prosecutorial Misconduct / Burden Shifting

The Court of Appeals found no error in the statement “It could just as easily have been [the witness] who was lying on that slab in the coroner's office,” because the evidence actually supported the argument (witness almost got hit by Mr. Stark). Unfortunately, that was the only statement the defense preserved through an objection. Thereafter, in its opinion, the CofA found the others, if any improper, did not amount to plain error.

Further, the CofA found the prosecution did misstate the law on proximate cause when the prosecutor said, “Even if the phantom car hit,” the defendant’s car. However, the CofA also found the prosecution and instructions rectified the error. The CofA wrote, “(1) the prosecutor also told the jury during closing argument that it had to prove Strock “is the person who set in motion the actions that caused the death” of the victim and “if he had not gotten in that car, it wouldn't have happened”; (2) the jury was instructed that to convict Strock of vehicular homicide it must determine that Strock was driving

while intoxicated and that his conduct was a proximate cause of the victim's death; (3) the jury was properly instructed regarding the definition of proximate

cause; and (4) both attorneys referred to that definition during closing arguments.”

The CofA also held the prosecution did not commit any error, plain or otherwise, in commenting upon the lack of evidence that supported the defense’s theory of the case.

Colorado Court of Appeals decisions 8-5-10

People v. Medina            Felony Murder, Complicity, Burglary / Statutory Construction / Instructions           

Synopsis: Mr. Medina’s girlfriend claims the deceased raped her friend.  Mr. Medina and friends go over to deceased’s apartment to settle the score. When the deceased identifies himself, snitch witness claims Mr. Medina shoots the deceased. An independent witness describes someone like snitch not Mr. Medina to be the shooter. The jury did not convict of 1^st Degree Murder After Deliberation, and according to the Court of Appeals, the jury found Mr. Medina did not shoot the deceased.

Issue: Whether burglary with the predicate crime of assault can qualify as predicate burglary for felony murder.

Held: Yes. The Court reasoned ANY burglary may serve as the predicate offense for felony murder.

Issue: Whether the stock Colorado jury instruction on complicity created reversible error?

Held: No. The Court held the complicity instruction, although error, did not require a new trial. See Bogdanov v. People, 941 P.2d 247 (Colo. 1997).

Issue: Can the prosecution pursue inconsistent theories of prosecution?

Held: Yes. The Court wrote, “Due process does not preclude a prosecutor from advancing alternative theories upon which a jury properly could convict one defendant in one trial. See Anne Bowen Poulin, Prosecutorial Inconsistency, Estoppel and Due Process: Making the Prosecution Get Its Story Straight, 89 Cal. L.Rev. 1423, 1429 (2001)(“[i]ssues of inconsistency [that] arise within a single trial ... do not threaten the basic fairness of the process” because “the fact finder can weigh inconsistent alternatives in the context of the whole case”).”

The CofA also quoted from Bradshaw v. Stumpf, 545 U.S. 175 (2005), where the U.S. Supreme Court held, “prosecutorial inconsistencies” as to which of two men shot the victim did not warrant vacating the first defendant's guilty plea, because “the precise identity of the triggerman was immaterial to [his] conviction for aggravated murder,” but did warrant further review of defendant's challenge to his death sentence. Id. at 186-88; compare id. at 189-90 (Souter, J., with Ginsburg, J., concurring) (discussing possible due process limits on inconsistent positions in different cases) with id. At 190 (Thomas, J., with Scalia, J., concurring) (“This Court has never hinted, much less held, that the Due Process Clause prevents a State from prosecuting defendants based on inconsistent theories.”).

Issue: Whether the prosecution presented perjured testimony?

Held: No. The Court reasoned that because all it had was the cold transcript of the trial, it cold not determine whether any testimony was in fact perjured, and hinted the claim sounds like a 35(c) issue.

People v. Perry            Removal from Sex Offender Registry

The CofA held, if a person successfully completed a deferred sentence or adjudication, then the person can apply to be removed from the Sex Offender Registry.

Colorado Court of Appeals decisions 7-22-10

People v. Butler             ‘Knock and Announce’ Rule Violation and Remedy / Invited Error

Facts: Mr. Butler contended that the police violated the rule that mandates police ‘knock and announce’ their presence prior to executing a search warrant. The prosecution contended regardless of whether the police violated the knock and announce rule, pursuant to Hudson v. Michigan, 547 U.S. 586 (2006), there is no remedy in criminal law.

Issue: What is the a remedy for a defendant in criminal case when police violate the ‘knock and announce’ rule?

Held: There is none. If the Colorado court is applying Federal law, then the court must follow Federal and Supreme Court precedent. Federal law only provides for a civil remedy for violations of the knock and announce rule.

Reasoning: The CofA pointed out early on in a footnote that, “We express no opinion concerning Butler’s rights, if any, under the Colorado Constitution because Butler’s argument is limited to the Fourth Amendment.” The CofA then went on to say neither party addressed Hudson v. Michigan, 547 U.S. 586 (2006), where the Supreme Court held that civil remedies provide a sufficient deterrent for violating the ‘knock and announce’ rule, and thusthe exclusionary rule does not apply. Thereafter, the CofA declined to address the issue because Mr. Butler did not have any remedies under Federal law. Mr. Butler never raised the issue specifically under Colorado law. The Colorado Supreme Court, in People v. Gifford, 782 P.2d 795 (Colo. 1989), reached the opposite conclusion of Hudson. In Gifford, the Colorado Supreme held suppression is an appropriate remedy for violating the knock and announce rule.

Issue: Whether the defense can appeal an instruction it agreed to during trial?

Held: No.

Reasoning: The CofA held that expressly acquiescing to an instruction and then appealing any alleged error caused by the instruction amounts to invited error. Thus, the CofA hinted in dicta, that the defense cannot appeal any ‘invited error’, unless the defense is raising ‘oversight or incompetence’.

People v. Padilla-Lopez            Restitution and the Definition of ‘Victim’ 

Facts: A third party deals dope to an undercover, pansy-ass, whiny-ass cop in Ms. Padilla-Lopez’s home. Police subsequently execute a warrant on Ms. Padilla-Lopez’s home. Cops find 1 ½ grams of methamphetamine, 4.4 grams of methylphenidate, baggies, scales, pipes and hypodermic needles. The police also get the Department of Human Services (DHS) involved, and DHS files a Dependency and Neglect case against Ms. Padilla-Lopez. Ms. Lopez pled to misdemeanors, including misdemeanor child abuse. Ms. Padilla-Lopez agreed to pay all restitution in the case as part of the plea. DHS then claimed the mantle of victimhood, and sought $19,295.14 in restitution from Ms. Padilla-Lopez for the placement costs of her kids.

Issue: Whether DHS qualifies as a victim under the restitution statute, C.R.S. § 18-1.3-602?

Held:  No.

Reasoning: The Court of Appeals simply looked at the elements of child abuse, and found, unlike cases of welfare fraud or actually stealing from a government agency, DHS is not a victim of child abuse. The CofA reasoned that the costs incurred by DHS were incidental to its duties.

Colorado Court of Appeals decisions 7-8-10

Colorado Court of Appeals decisions 7-8-10

People v. Harland            C.R.E Rule 403 and ‘DNA Databases’ / Sufficiency of the Evidence

Facts: Little girl and her younger brother decide to host a garage sale when their parents left them home alone. Mr. Harland kindly waltzes up, looks around, gets directions, and asks for a drink. The little girl goes inside to get a drink for the stranger, Mr. Harland. Mr. Harland kindly follows her inside and sexually assaults her. The younger brother witnesses some of the assault. According to the opinion, the girl described her assailant in great detail, but super stellar police work could not him. However, Champ left DNA on the little girl, her clothes, and other evidence. At some point the prosecution ran the DNA through two databases, and hit upon Mr. Harland. The defense moved to in limine the mention of any “DNA database” because the jury will assume prior criminality. The lab tech made no mention of how the DNA samples in the database were obtained his testimony.

Issue: Whether the trial court abused its discretion in denying the defense motion in limine to bar any mention of “DNA database”?

Held: No.

Reasoning: Well, the CofA reasoned, because the way the testimony came out, the jury did not know how the sample in the database were collected.

2nd Issue: Whether there was insufficient evidence to convict?

Reasoning: Quoting the CofA, “Here, defendant's DNA was found on J.E.'s  undergarments and on tissues located inside J.E.'s home, places it was extremely unlikely to be if defendant was not the perpetrator because J.E. did not

know defendant and he had not previously been in J.E.'s home. And, contrary to defendant's assertion, the People presented other evidence proving defendant was the perpetrator. J.E. provided the police with a detailed physical description of the assailant. She described him as a white male with brown hair and a short

beard, five feet eight inches to five feet ten inches tall, and with a tattoo on his left arm of a bear with balloons and tattoos on his legs. She was also able to give an approximate weight. Defendant matched each of these descriptors when he was arrested.”

People v. Reeves            Possession and Weight of Actual Controlled Substance / Burden Shifting

Lab Tech extrordinaire testifies that the single pill of oxycodone weighed exactly 1.03 grams. However, the lab monkey also testified that the pill does contain fillers and substances other than oxycodone.

Issue: Whether the instruction that contained the language ‘more than one gram of any material, compound, mixture, or preparation that contains any quantity of a Schedule II controlled substance’ allowed the jury to convict Mr. Reeves of possession more than one gram despite the fact the oxycodone in the single pill amount to less than one gram?

Held: No problem.

Reasoning: The Court went to great lengths to justify this opinion, but essentially, the Court relied on the statute containing the language, “more than one gram of a material compound, mixture or preparation that contained Oxycodone, a Schedule II controlled substance; in violation of section 18-18-405(1), 2(a)(I)(A).”

Burden Shifting: The CofA held the prosecution, in rebuttal closing, did not shift the burden by pointing out the defense did not bring in any prescriptions for the drugs. The CofA reasoned because the defense hinted Mr. Reeves might have had a prescription, the prosecution rightly pointed out, well, champ, where is it?  Oops. I suspect the defense lawyer wishes she/he chose wiser words. Better yet, a good lawyer would simply call the doctor who provided the script, or admit some prescription records, or as a last resort, simply put on the client to testify that he had a prescription. However, if the defense lawyer knew no prescription existed, hinting that there might be a prescription is begging to be grieved. Further, not getting the actual prescription records, if those records existed, may just be malpractice. In a prescription fraud trial I had, I simply had the client refresh her memory with her own prescriptions. I never sought to admit the prescriptions. The jury found my client not guilty, and the refreshing bit proved to them there was a prescription. 

Colorado Court of Appeals decisions 6-24-10

People v. Frye             Prosecution Appeals

Synopsis: In 1973, the state charged Mr. Frye with murdering his wife. However, the trial court back then dismissed because the prosecution could not go forward. Some decades later, in 2006, Mr. Frye’s sister told police that Mr. Frye confessed to murdering his wife to their mother. Of course, mom died prior to the sister testifying or disclosing the confession. The prosecution moved to admit the hearsay under the residual clause of hearsay rule. The trial court found the circumstances surrounding the hearsay to be unreliable, and denied admission of the statements by the mother via the sister. The prosecution then moved to dismiss the case, and appealed the trial court’s evidentiary decision.

Holding: The Court of Appeals held the trial court’s ruling denying admission of the hearsay statement was not a final disposition of the case, and dismissed the appeal.

Reasoning: The Court of Appeals reasoned that the prosecution’s actions amounted to nolle prosequi. The CofA stated simply, “ ‘A nolle prosequi only means that the state is not prepared to go forward with the prosecution of the criminal charge.’ When granted by the trial court, ‘[a] nolle prosequi order is not the final disposition of a criminal case, but leaves the matter in the same condition as before the charges were filed.’ ” (citations omitted).

People v. Price            Suicide Attempt and Mistrial / Right to Testify and Structural Error / Competency of the Defendant

Facts: The defense moved for mistrial after Mr. Price attempted suicide, and could not attend the rest of the trial. The trial court denied the motion for mistrial.

Held: The Court of Appeals held that the trial court did not abuse its discretion by denying the defense motion for mistrial. Further, the Court held the trial court did not abuse its discretion by finding that Mr. Price voluntarily absented himself from the proceedings.

Reasoning: The CofA pointed out, in its factual summary, that deputies admitted Mr. Price on a mental health hold – not upon some health issue related to the suicide attempt. The Court highlighted the stipulated instruction informing the jury that Mr. Price ‘voluntarily’ absented himself from the trial, but the absence should not affect their decision in any way. (Next time, let the Court figure out the solution, and do not help.) The CofA showed a clear lack of understanding surrounding suicide and suicide attempts by adopting the following reasoning,  “Thus, under Stephenson and the above-cited federal authorities, a defendant's absence may be deemed voluntary where the record establishes that he or she created the medical necessity in order to effect his or her absence from trial.” Lastly, the Court also found that the suicide attempt does not make Mr. Price incompetent to stand trial, and that Mr. Price’s inability to testify did not amount to a structural error.

Editorial: Curiously, if a mom on the Internet pretends to be a boyfriend of her daughter’s rival and the mom’s character breaks up with the rival, suddenly mom is responsible for the rival’s suicide. However, if someone is under the pressure of a jury trial and fearing the soul crushing life imprisonment penalty, suddenly any empathetic gestures evaporate. With anyone accused of a crime, the suicide attempt is viewed as some cynical ploy to delay the trial.

People v. Sanchez             Inconsistent Verdicts / Flight Instruction

Facts: The Court of Appeals recited the facts like this, “A group of about thirty people, including defendant, attended an overnight party at a campground. During the night, R.M. left his tent and noticed C.R. inside of his boss's Jeep and defendant standing outside the Jeep. R.M. approached the Jeep and saw C.R. holding a camera that belonged to R.M.'s boss. R.M. asked what C.R. and defendant were doing and told them to get out of the Jeep. R.M. was angry, pointed his finger at C.R. and defendant, and accused them of stealing. Defendant told R.M., “We're ready for this,” and, “You don't want to do this.” Defendant stabbed R.M. in the chest with a folding knife, and then stabbed S.P. and D.C., two onlookers, as D.C. fought C.R. R.M. and D.C. survived, but S.P. died from his stab wound.” The jury found Mr. Sanchez guilty of first-degree murder, attempted first-degree murder, heat of passion first-degree assault, and heat of passion second-degree assault. From the opinion, it appears the defense never asked for the jury to be instructed on second-degree murder with heat of passion or attempted second-degree murder with heat of passion.

Holding and Reasoning: The CofA held the convictions for attempted first degree murder and first degree assault with heat of passion on one victim were inconsistent, but the inconsistency did not require reversal. Moreover, the CofA held that the convictions for attempted first degree murder and heat of passion second degree assault were inconsistent, but again, the inconsistency did not require reversal. The Court cited People v. Frye, 898 P.2d 559 (Colo. 1995), which held, “that Colorado law does not generally require consistent verdict. However, the Frye court noted that if a jury returned verdicts convicting a defendant of two or more crimes, and the ‘the existence of an element of one of the crimes negates the existence of at necessary element of the other crime,’ ‘courts are generally uniform in their agreement that the verdicts are legally and logically inconsistent and should not be sustained.” The CofA found the existence of heat of passion did not negate any element of first-degree murder or attempted first-degree murder.

Lesson: If your theory is self-defense and heat of passion, submit second-degree murder with the heat of passion. Otherwise, your client will end up screwed like Mr. Sanchez.  Sounds like the jury would have convicted him of heat of passion second-degree murder and heat of passion attempted second-degree murder.

Flight Instruction: Generally, not advisable, but no abuse of discretion here in instructing the jury on flight. (Champ, after deciding to escalate a mere 1° criminal trespass into a 1° murder by stabbing folks when he got caught, ran and hid in a trailer.)

People v. Wilson             Restitution and the Statute of Limitations

The Court of Appeals held that when Ms. Wilson pled guilty to theft from 2002 onward, she waived any applicable rights under the statute of limitations. Essentially, the CofA went with the assumption that subsection (12) of §16-5-401, the Statute of Limitations, applies to plea bargains. Thus, pleading guilty waives any rights under the Statute of Limitations. Subsection (12) reads:

“The applicable period of limitations specified in subsection (1) of this section shall not apply to charges of offenses or delinquent acts brought to facilitate the disposition of a case, or to lesser included or non-included charges of offenses or delinquent acts given to the court or a jury at a trial on the merits, by the accused.”

Colorado Court of Appeals decisions 6-10-10

People v. Trujillo  Hearsay / 13-25-129

The Court of Appeals found that C.R.S. §13-25-129 (Child Hearsay Statute) allows for admission of hearsay statements from kids over 15.

People v. Roy  Time Served – 35(a) Motion or 35(c) Motion?

The Court of Appeals held any motion for additional credit time served falls under C.R.Crm.P Rule 35(a), not 35(c). Thus, the time bars contained in Rule 35(c) do not apply to motion for credit time served.

People v. Portillo  Lesser Included Offenses – Menacing Lesser Included of Attempted Extreme Indifference First Degree Murder?

The Court of Appeals held that because menacing requires proof of an element not contained in attempted extreme first-degree murder, menacing is not a lesser-included offense.

People v. Griffiths  Ability to Pay and Drug Surcharge / Res Gestae Evidence

The Court of Appeals held that because Ms. Griffiths did not claim at her sentencing that an 11-year DOC sentence would prevent her from paying the drug offender surcharge, the trial court did not abused its discretion in imposing the surcharge. Further, the Court also held that introduction of Ms. Griffiths physical appearance, scanners from her home, and a notebook did not violated the trial court’s order barring any evidence pursuant to 404(b).

People v. Emert  Advisement under Curtis and Possession of a Weapon by a Previous Offender

The Court of Appeals held that the Curtis advisement given by the trial court misled Mr. Emert into believing the only purpose of the previous felony was to impeach him. Moreover, the Court held that in a POWPO trial, the trial court must also advised the defendant that the prior felony will be used against him because the prior felony is an element of the crime of POWPO.

People v. Bloom  Summary Disposition of Appeal

The Court of Appeals held that Mr. Bloom did not have a right to appleal his sentence because the trial court sentenced Mr. Bloom within the range allowed by the plea bargain. The Court dismissed the appeal without an answer brief.

People v. Blackwell  Prosecutorial Misconduct by Threatening a Witness with Perjury / Fair Trial

The Court of Appeals came up with a totality of the circumstances test to determine if the prosecution, in threatening perjury charges, deprived Mr. Blackwell of a fair trial. Unsurprisingly, no, the prosecution’s threat did not undermine Mr. Blackwell’s right to a fair trial. The factors the Court of Appeal came up with:

(1) the manner in which the prosecutor raises the issue, including the warnings' extent and timing, the language employed, and whether the prosecutor communicated directly with the witness or through an attorney;

(2) the  prosecutor's basis in the record for believing the witness might lie;

(3) the warnings' effect on the witness's willingness to testify;

(4) whether the court attempted to remedy any misconduct; and

(5) whether the prosecutor capitalized on the witness's absence by directing the jury's attention to it during closing arguments.

People v. Alvarado-Juarez  Equal Protection - Extreme Indifference First Degree Murder and Reckless Manslaughter

The Court of Appeals held the Extreme Indifference statute did not deny Mr. Alvarado-Juarez equal protection “because there is a significant difference between the elements of extreme indifference murder and reckless manslaughter: extreme indifference murder requires proof of  ‘circumstances evidencing an attitude of universal malice manifesting extreme indifference to the value of human life generally.’” Whereas, the Court reasoned, reckless manslaughter does not contain the universal malice element.  The Court also found Colorado’s reasonable doubt instruction is fine thank you very much. Actually, of all the definitions, Colorado states the definition best.