February 24, 2010

US Supreme Court - 2-23-2010

Florida v. Powell            Miranda / Sufficiency of Advisement / Deception / Waiver / Independent State Grounds
Issue: Whether the temporal placement of  “you have the right to consult a lawyer prior to questioning” and the words “you may exercise these rights at any time during questioning” after the entire advisement sufficiently advises a person of their right to consult a lawyer during questioning?
Held: Yes.
Facts: The police in Florida routinely tell the accused he/she has a right to a lawyer prior to questioning, but do not couple that particular advisement with another that the accused can consult a lawyer at anytime during questioning. Instead, the police in Florida do a catchall at the end of the Miranda warnings, and tell the accused he/she may exercise any or all of these rights at anytime during questioning. The defense argued this method deceives advisees into thinking that they may not consult a lawyer if they did not prior to questioning. The U.S. Supreme Court did not care. Justice Ginsberg wrote the opinion of the Court, and only Justices Stevens and Federal-Sentencing-Guideline-Loving Breyer, dissented. Moreover, the dissent argued that Florida sufficiently relied upon independent state grounds. The majority thought otherwise.

February 20, 2010

Colorado Court of Appeals decisions 2-18-10

People v. Collins                        Scope of Consent  / Sexual Assault / DNA evidence
The issue: Did Mr. Collins’ consent to give a DNA sample authorize the prosecution in Missouri to share his DNA sample with other databases and investigations?
Holding: Yes.
Corollary issue: Did the authorities in Missouri give an express or implied representation that the DNA sample would be used only in the robbery case in which they were investigating?
Holding: No.
Facts: A jury convicted Mr. Collins of 1° degree sexual assault, 2° degree kidnapping, and attempted aggravated robbery. Simple facts: in 1999, the assailant, assaulted, raped, and robbed the complaining witness when she was walking home from work. The police developed a DNA profile from the semen left by the assailant.  The DNA profile did not match anyone currently in the DNA database. Subsequently, the crime lab did an “enhanced profile” of the same sample, but still no match.

After the ’99 rape, not content with a generous life Mulligan, Mr. Collins sought and captured more trouble in Missouri. Police arrested Mr. Collins on a robbery charge. However, the prosecution in Missouri wanted to link him to a ski mask left at the scene of the robbery. Thus, the prosecution sought Mr. Collins’s DNA. He refused at first, which prompted the prosecution to file a motion to compel. However, prior to a hearing on the motion to compel, Mr. Collins agreed to some give some swabs. Unsurprisingly, the prosecutors linked Mr. Collins’ DNA with that on the mask. However, unfortunately for Mr. Collins, his DNA was seemingly shared around the globe where it matched the DNA profiles of the ’99 Colorado rape and another rape in Missouri. Not that it really mattered, but the Court of Appeals went to some length to explain that Mr. Collins did not limit the scope of his consent when he gave the DNA sample. Thus, the Court of Appeals held, like fingerprints, anyone submitting a DNA sample should be expected to know that their sample would be shared far and wide.

People v. Chavez            Warrantless Search of a Home / Exigency
A jury convicted Mr. Chavez of possession of a dangerous weapon, and the Court of Appeals affirmed the conviction.
Issue: Is a call to 911 about a domestic disturbance, with little else, a sufficient exigency that justifies a warrantless search of Mr. Chavez home?
Holding: Yes.
Facts: According to the opinion, the police entered without consent, searched the home, and questioned both Mr. Chavez and his wife separately. After the first search of the home disclosed some shotgun shells and bullets, the police asked if there were any weapons, and Mr. Chavez said no. However, the wife disclosed the presence of a sawed-off shotgun under the mattress. The police recovered the shotgun, and the prosecution charged Mr. Chavez with possession of a dangerous firearm. To justify the police conduct, the Court of Appeals focused on the daughter ‘fleeing’, the 911 call, and that 5 minutes after the 911 call, police arrived to find to a dark house where no one answered. Ummm… what the 911 call did not reveal – serious bodily injuries, weapons, or that anyone was in danger. Moreover, the son of the couple stayed in his room seemingly unconcerned about the commotion downstairs.

(People v. Chavez represents society’s hysterical response to any claim of ‘domestic violence' at the expense of one our Constitution's most sacred rights. However, would such hysteria be used to justify the search of a wealthy person's home as it was used here to justify the search a poor person’s home? I suspect not. Most folks in poor neighborhoods, accustomed to police harassment, do not answer the door when the cops come calling. For speaking to the police causes more trouble than it could ever possibly help. This decision represents the complete disconnect between those who wield and grant great power, such as the Court of Appeals here, and those who are always subject to the repeated and habitual abuse of that power -  the indigent. The Warren Court never lost sight of how each opinion affect the impoverished among us, and the Warren Court always sought to alleviate and stop the abuses suffered by the indigent at the hands of the police.)

Colorado Supreme Court decision 2-16-10

People v. Disher            Domestic Violence / Definition of ‘Intimate Relationship’
At a court trial, a county court judge convicted Mr. Disher of harassment. However, the judge declined to order a domestic violence enhancer because the prosecution presented no evidence of an intimate relationship. The judge equated a sexual relationship with intimate relationship. The prosecution appealed to the District Court, and the District Court affirmed for the same reasons. The Colorado Supreme Court reversed, and found because ‘M.P.’, “describes her connection with Disher as an exclusive dating relationship and states that they had ‘broken up’ around Christmas. This brings their relationship within the type of interpersonal connection that the statute contemplates as it tries to curb relationship violence.”

The Court listed the following as factors:
(1) the length of time the relationship has existed, or did exist
(2) the nature or type of the relationship;
(3) the frequency of interaction between the parties.

“These factors are not intended to be an exhaustive list of the characteristics a court may consider; they are a guide that may be used in whole or in part. However, an intimate relationship should not include mere social or business acquaintances and friends. In summary, a sexual relationship may be an indicator of an intimate relationship, but a sexual relationship need not be present. The relationship must be more than that of a roommate, friend, or acquaintance; there must be a romantic attachment or shared parental status between the parties.”

February 8, 2010

Colorado Court of Appeals 2-4-10

People v. Everett        Sexual Assault / CRE Rule 404(b)
The eighteen year-old complaining witness against Mr. Everett claimed that as she was waiting for friends when she asked Mr. Everett for a cigarette as he passed by. Mr. Everett said he did not have one, but a friend might. So, they walked to the friends house, sat on the grass, and talked. After awhile, according to the complaining witness, Mr. Everett made unwanted advances toward her. She claimed then she wanted to leave, but Mr. Everett forced himself on her and sexually assaulted her. When he finished, he said his name was 'Eric', he apologized,and said he just got out of prison. Pennsylvania previously convicted Mr. Everett of sexual assault. In Pennsylvania, according to the CofA, the "defendant sneaked into an apartment where an eighteen-year-old woman, whom he had known for three days, was sleeping. The woman woke up in her bed with defendant lying next to her. Defendant climbed on top of her as she lay on her back, forcibly put her legs on his shoulders, and held her down with his weight. She resisted, and repeatedly told him to stop, but he removed her pants and penetrated her anally. When he finished attacking her, he shook her hand. Defendant had previously told this woman that his name was 'Dylan.' Initially, the prosecution offered up every reason in the rule as a basis for admitting the Pennsylvania case into evidence. The trial court denied the prosecution's motion. However, the trial court reserved ruling to admit the Pennsylvania case if Mr. Everett pursued a defense of consent (which he did because of a DNA match). The trial court then allowed the prosecution to admit the Pennsylvania case to refute consent. The CofA affirmed the trial court's ruling. The Court stated, "Further, the court recognized Colorado law, including section 16-10-301(3), C .R.S.2009, when it stated that the prior sexual assault (1) was relevant; and (2) had “significant probative value” because it directly addressed the issues presented by the defense theory of consent."
Rule: all prior sexual acts by the defendant are probative of consent or lack thereof, but all prior sexual acts by any complaining witness are not probative ever -  PIG! How dare you!!!

February 1, 2010

Colorado Supreme Court 2-1-10

People v. Minor        Consent to Search  / Scope of Search Pursuant to Consent
            Mr. Minor drove the car that the police stopped, while the owner of the car rode shotgun with another passenger in the back. Police claim some minor traffic violation to justify the stop. Upon stopping the car, one cop talks to the driver, the second cop searches the car and starts talking to the passengers. Second cop claims to see some baggie on the floor. Based upon this, the cop sought consent to search. Although contested, the trial court found Mr. Minor voluntarily consented. Cops rifle through everything in the car, including the trunk and a backpack in the trunk.
The Colorado Supreme Court reversed the suppression order, and held:
1)      The driver, while not the owner, possesses the authority to consent to a search;
2)      If the consent is general, the scope of that consent extends to the trunk of the car
3)      If the consent is general, the scope of that consent extends to any personal effects in the trunk, in this case, a backpack (as long as nothing is destroyed during the search)

People v. Crippen     Search Warrants / Staleness
In an embezzlement / white-collar crime case, the trial court granted the suppression order because the warrant was both stale and lacked probable cause. The Colorado Supreme Court reversed. The Court held:
Although the affidavit in this case was hardly a model to be emulated, failing as it did to identify the person conducting the audit, specify the timing and circumstances of its commission or attach a copy of the audit in question, under the unique circumstances presented here, the reliability of the information contained in the affidavit was nevertheless discernible from its nature and detail alone.
Further, the Court held the two-year span between  the audit, which disclosed the alleged illegality, and the execution of the warrant did not render the warrant stale in an embezzlement case.

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