March 21, 2010

Colorado Court of Appeals decisions 3-4-10


Wiesner v. Dept. of Revenue                Presumption of Accuracy and Persistent Drunk Driver
Department Reversed
The Department without statutory authority developed a policy that the presumption of accuracy applied to a finding of Persistent Drunk Driver (BAC .17 or greater).  In this case, the Department, according to Department policy, presumed the accuracy of the BAC test, and found Mr. Wiesner to be a Persistent Drunk Driver. The CofA reversed. The Court held,
1) Statutory construction did not permit the Department to apply the presumption to Persistent Drunk Drive definition, and
2) The presumption of accuracy works great with a .08, but because of the margin of error, does not equally apply to a finding of Persistent Drunk Driver because that section requires a BAC of .17 or greater.

People v. Gallegos                                     Embezzlement / Insufficiency of the Indictment 
Facts: Mr. Gallegos, the then Sheriff of Conejos County, used inmates to build an addition to his home and cut firewood for his personal use. Apparently, the DA did not dig the sheriff or something, because based upon these petty allegations, the DA sought and obtained an indictment and conviction against the sheriff.
Issues: 1) whether the indictment sufficiently advised Mr. Gallegos of the charges of Embezzlement and Criminal Extortion? Yes on the Embezzlement count, and No on the Criminal Extortion count.
Embezzlement reads:
§ 18-8-407. Embezzlement of public property
(1)  Every public servant who lawfully or unlawfully comes into possession of any public moneys or public property of whatever description, being the property of the state or of any political subdivision of the state, and who knowingly converts any of such public moneys or property to his own use or to any use other than the public use authorized by law is guilty of embezzlement of public property. Every person convicted under the provisions of this section shall be forever thereafter ineligible and disqualified from being a member of the general assembly of this state or from holding any office of trust or profit in this state.
Gallegos agued he did not convert or use any public property or money. Instead, he claimed he used the services of the inmates, which fell under First Degree Official Misconduct, a class 2 misdemeanor. The CofA declined to address the Misconduct argument, but found the embezzlement indictment to be sufficient because public employees drove public vehicles. Petty. Further, the CofA found the trial court committed a harmless error instructing the jury with three improper bases for convicting Mr. Gallegos (the three improper grounds the CofA found to be harmless: (1) Gallegos used the manual labor of inmates to construct the addition to his home and to cut firewood; (2) Gallegos sold the firewood and kept the money for his personal use; (3) Gallegos benefitted from the inmate labor by a large increase in the value) of his home;
Criminal Extortion:
The CofA held that Mr. Gallegos did not confine anyone because there were jail inmates, and thus, the state previously confined them.
           
People v. Alley                                    Intoxicated Witness and Competency / Denial of Defense Continuance / Sentencing
Facts: Three alcoholics, all in their 60’s, two males and a female, decided that volatility, instability, and alcohol mix well. The three get a room in a ratty ass motel, drink themselves into oblivion, and get into an argument. The prosecution claimed that Mr. Alley made sexual advances on the female drunk while the other male drunk was passed out. The prosecution claimed the female declined Mr. Alley’s advances whereupon Mr. Alley beat her into unconsciousness with his cane.  Further, the prosecution claimed that while the female got beat, the other drunk male woke up, and attempted to heroically stop the beating. The prosecution alleged Hero got beat by Mr. Alley’s cane also. The male drunk suffered some cuts, and the female drunk ended up with a swollen brain, broken nose, and broken finger. Whoops. If I remember right, Nancy Holton, who tried this disaster, argued it was a melee and Mr. Alley simply defended himself. Judge Munsinger sentenced Mr. Alley, 62 at the time of sentencing, to 48 years on the 1st Degree Assault on an At-Risk Adult (the female drunk count) and 16 Years on the 2nd Degree Assault (the male drunk count). 64 f’ing years? And no dead bodies?
Issues:
(1)  Whether the trial court committed reversible error in not allowing a continuance. No. The Court of Appeals reasoned that because Counsel did her job, she did not need a continuance.
(2)  Whether an intoxicated witness is competent to testify? Of course, especially if it helps the prosecution. The male drunk showed up to court with a .233, dropped to a .084 at the time he testified (5 hours later), and a .049 when he was finished testifying. (good thing to remind this clown, Munsinger of, when one of our clients inevitable shows up with alcohol on his breath).
(3)  Whether the record and the trial court’s findings supported these obnoxious sentences? Yes.

People v. Brown                                    Fugitive and Attorney’s Failure to Perfect Appeal
A simple quote from the first sentence sums this up well: “A former fugitive claims his attorney was ineffective in failing to perfect an appeal while he was on the lam. We affirm the trial court's order denying relief on this claim.”

People v. Gardner                                      Double Jeopardy
The prosecution originally charged Mr. Gardner with four cases involving theft, forgery, and fraud by check. Seemingly, the DA dismissed one case, and Mr. Gardner pled to three Class 3 Felony thefts – one in each remaining case (moronic deal). Prior to sentencing, Mr. Gardner fired his lawyer, and went to sentencing pro se. The trial court followed the plea agreement, and sentenced Mr. Gardner to 6 years consecutive on each theft charge. On appeal, Gardner argued to the Court of Appeals that the because his theft counts involved overlapping times, Double Jeopardy bars consecutive sentencing. The CofA agreed, and ordered the trial court to merge two of the convictions, and re-sentence Mr. Gardner to 12 years. (Doesn’t the DA’s Office now have grounds to withdraw from the plea agreement?).

People v. Montoya                                     Waiver of Right to Jury Trial
In 2007, the Colorado Supreme Court amended CRCrimP Rule 23 to provide a more complete advisement regarding the waiver of a jury trial. Because the trial court did not advise Mr. Montoya pursuant to the amended rule, the Court of Appeals remanded the case to the trial court to determine if Mr. Montoya validly waived his right to jury trial. Further, the Court of Appeals held that Colorado requires any waiver of a jury trial must done on the record (unlike what many county courts do where the clerk hints at/forces a court trial on a person.
Colorado Rule of Criminal Procedure Rule 23 subsection (a)(5) reads:
(I) The person accused of a felony or misdemeanor may, with the consent of the prosecution, waive a trial by jury in writing or orally in court. Trial shall then be to the court.
(II) The court shall not proceed with a trial to the court after waiver of jury trial without first determining:
(a) That the defendant's waiver is voluntary;
(b) That the defendant understands that:
(i) The waiver would apply to all issues that might otherwise need to be determined by a jury including those issues requiring factual findings at sentencing;
(ii) The jury would be composed of a certain number of people;
(iii) A jury verdict must be unanimous;
(iv) In a trial to the court, the judge alone would decide the verdict;
(v) The choice to waive a jury trial is the defendant's alone and may be made contrary to counsel's advice.

People v. O’Hara                                      Wiretaps
Pretty simple: because the elected district attorney did not authorize approval of the wiretap, the trial court should have suppressed all evidence gleaned from those wiretaps. The CofA reversed Mr. O’Hara’s convictions, and remanded the case for a new trial.





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