Colorado Court of Appeals 4-15-10 Decisions

People v. O’Shaughnessy              Batson Challenges / Double Jeopardy / Sentence Merger

Batson Challenges: The prosecution struck three Hispanic jurors. On each challenge, the Court of Appeals found the prosecution’s proffer to be race neutral; the Court of Appeals ignored the obvious – that the prosecution struck three Hispanic jurors. The CofA viewed each challenge in a vacuum, as if each none of the challenges by the prosecution related to each other.

Juror T: Although the trial court did not see the behavior, the prosecution claimed, “throughout my voir dire she (Juror T) was rolling her eyes, indicating that she wasn't too happy to be here which was confirmed when I did excuse her, her actions.” The CofA found the prosecution offered a sufficient race neutral explanation.

Juror S: the CofA found despite similarly situated white jurors, the prosecution’s explanation for kicking juror S to be race neutral. The prosecution claimed because Juror S was a counselor at Arapahoe House that she might be sympathetic to the defendant who was addicted to drugs (See Snyder v. Louisiana, attached where the prosecution kicked an African-America juror because he would miss a week observing a class for his teaching degree; the U.S. Supreme Court held the argument to be a pre-text because some white jurors expressed the same misgivings related to their jobs, school, family, or other obligations).

Juror M: the prosecution cited the juror’s statement that he would have a hard time judging someone; this was the third Hispanic juror the prosecution kicked off. The Court of Appeals held that although defense counsel did not waive the Batson challenge to this juror, the CofA concluded that defense counsel acquiesced to the prosecutor’s reasoning. Moral of the story: rebut these clowns after they offer their bogus explanation for kicking minorities of the panel.

Double Jeopardy and Sentence Merger: Mr. O’Shaughnessy argued that the convictions of Attempted First Degree Murder and Second Degree Assault violated his rights under Double Jeopardy. The CofA disagreed, and held because the two crimes involve at least one different element, Mr. O’Shaughnessy can suffer convictions under both statutes.  However, the CofA held all crimes of which the jury convicted Mr. O'Shaughnessy involved the same evidence, and thus, the trial court may not order consecutive sentences.

People In The Interest of K.M.                        Restitution

K.M. doled-out a worthy beat-down upon D.D. K.M. claimed D.D. started the altercation, and simply defended himself when he busted D.D.’s jaw. The prosecution offered and K.M accepted an adjudication to harassment. D.D., not content to swallow his pride and accept the ass-whooping, wanted money. The Crime Victim Compensation Board gave him money, and then the CVCB sought reimbursement from K.M.. The trial court ordered the prosecution to itemize the reimbursement. The prosecution refused to provide an itemization, and the trial court denied the restitution claim. The CofA affirmed the trial court’s denial of restitution. The CofA held despite the prosecution protestations of privacy etc. the prosecution could have provided the required documentation for an in camera review, but failed to do so.

People v. Brown                        Search and Seizure – Parole and Expectation of privacy

Mr. Brown lived with his brother, who was on parole at the time. The CofA found that Mr. Brown possessed no expectation of privacy because: “Defendant knew (1) his brother was on parole, (2) the residence could be searched at any time, (3) the brother was required to have permission to live with others, and

(4) the brother did not have permission for defendant to live there.” Thus, the CofA upheld Mr. Brown’s conviction for possession.

People v. Hoffman                        Probable Cause / Search Warrants / Good Faith

The Court of Appeals found that the warrant used by police to search Mr. Hoffman’s home lacked probable cause. Further, the CofA found that the ‘good faith’ exception could not justify relying on the stale warrant. The CofA found: “Here, a deputy of the Mesa County Sheriff's Department

obtained a warrant to search defendant's trailer by submitting an affidavit presenting (1) information he received from an unidentified informant,

(2) the deputy's observations of activity near defendant's trailer on the night before the warrant was issued, but a month after the informant's information

was received, (3) an account of two arrests the deputy made after observing the activity near defendant's trailer, and (4) some criminal history related to prior conduct of defendant. Our review of the totality of the circumstances, including

the cumulative effect of the allegations presented in the affidavit, persuades us that there was no substantial basis to conclude that probable cause existed.”

Court of Appeals 3-18-10 Decisions

People v. Key             Application of Gant / Good Faith Exception / Exclusionary Rule / Video Evidence  - Testimonial v. Non-Testimonial Evidence / Prosecutorial Misconduct – Closing Argument / Continuance of Sentencing / Substitution of Judges

Application of Gant / Exclusionary Rule and the Good Faith Exception: (In Arizona v. Gant, the U.S. Supreme Court held once police put Mr. Gant into handcuffs and sat him in the back of a patrol car, the justification for searching the Mr. Gant’s car, incident to arrest, no longer existed). The Court of Appeals held a) that Gant applied to Mr. Key, but b) the good faith exception to the exclusionary rule also applied. Thus, the CofA affirmed Mr. Key’s convictions. The CofA went through page upon page of reasoning to justify affirming the conviction here despite the holding of Gant.            

Video Evidence: The trial court gave the jury unfettered access to the bank surveillance tape of Mr. Key attempting to use some stolen ATM cards. The CofA made a distinction between testimonial evidence and non-testimonial evidence (Crawford v. Washington). The CofA decided that the surveillance tape is non-testimonial in nature, and therefore the trial court did not abuse its discretion in allowing unfettered access to the tape.

Prosecutorial Misconduct – Closing Argument: The CofA found no problem with the prosecutor calling a defense argument a ‘side-show’; found no problem with the DA asserting her own personal opinion; and found no problem with the DA arguing facts that the trial court never admitted as evidence.

Denial of Continuance at Sentencing: The CofA held the trial court did not abuse its discretion a motion to continue the sentencing. The defense sought the continuance to seek acceptance from a third community corrections program. The first two programs rejected Mr. Key and the DA objected to a community corrections sentence. Further, when the defense did not explain what the psychiatric mitigation would be – either at the sentencing or later - the trial court did not abuse its discretion in denying the continuance to get the psychiatric evidence.

Substitution of Judges: The CofA held substituting judges at sentencing did not violate the rule on substitution of judges, despite any reason for the substitution in the record. See C.R.Crim.P Rule 25.

People v. Montez                        Batson / Sufficiency of the Evidence

Batson – The prosecution kicked off the only two minority jurors in the venire – both Hispanic. Defense counsel, Eric Sims Jr., objected. The DA then proffered a race-neutral explanation. The Court asked me for a response, and apparently I re-cited the fact that the prosecution kicked the only two minorities on the panel. The CofA found that I did not carry my burden during this last phase. See Snyder v. Louisiana – contrast and compare the answers of minority venire members with white venire members for evidence of pretext.

Sufficiency of the Evidence – While committing a burglary, our client took a gun case that resembled a guitar case. The gun case contained two unloaded shotguns, but no ammunition. On appeal, Mr. Montez, urged the CofA to follow People v. Moore, 841 P.2d 320 (Colo.App.1992). Essentially, because he did not threaten anyone with the shotguns, he could not be convicted of 1^st Degree Burglary, instead only 2^nd Degree Burglary. Further, Mr. Montez argued that even if People v. Loomis applied, that neither of the shotguns were easily available or accessible. The CofA disagreed and found both unloaded shotguns without ammunition easily accessible and readily available.

Merger – because it was just one home, the burglary convictions merge. However, the CofA found that the two convictions for Possession of a Weapon by a Previous Offender (POWOP) did not merge simply because there was two shotguns (although the act of possessing each occurred simultaneously).

POWPO – F6 or F5? The Court found that felony menacing provides the basis to elevate POWPO from an F6 to and F5. The Court found felony menacing is the threatened used of force. Thus, the CofA reasoned, if the POWPO conviction is within ten years of a felony conviction, the POWPO conviction is an F5 not an F6.

People v. Mumford                        Miranda – Custody

The police executed warrants to arrest a friend of Mr. Mumford’s and to search the home of Mr. Mumford. During the search, the police found cocaine. Upon entering Mr. Mumford’s home to execute the warrants, the police ordered all the occupants out of the home and to sit on the curb. The police then questioned Mr. Mumford. The CofA found that the police detained Mr. Mumford. However, the CofA held the detention did not “rise to the level a formal arrest”, and thus, found Miranda warnings unnecessary. Judge Webb dissented.

Other issues: Counsel sought a mistrial or further questioning of a juror who was a former probation officer – denied. Lastly, the trial court did not exclude Mr. Mumford

from any portion of the trial, thus, the CofA found no error.

People v. Novotny             Challenge for Cause – Employees of Attorney General’s Office

Mr. Novotny challenged a juror who represented DOC as employee of the Attorney General’s Office. The CofA held that the juror was indeed a paid employee of a law enforcement agency because that is what the Attorney General does – enforces law. Derrr…

People v. Reynolds         Extreme Indifference First Degree Murder / Intervening Cause

Two cars messed with each other heading south on E-470, crashed, and crashed into a third car. Mr. Reynolds, survived, the drivers of the other cars did not. The prosecution charged and a jury convicted Mr. Reynolds of Extreme Indifference First Degree Murder. Mr. Reynolds argued that there was insufficient evidence to convict him, and he stated the driver of the one car caused the entire chain of events. The CofA disagreed. The evidence presented clearly showed that the driver behind Mr. Reynolds hit Mr. Reynolds from the right. Mr. Reynolds argued that the deceased hit his car intentionally. The CofA disagreed, and found no error with failing to instruct the jury on intervening cause. Very scary decision, not just because of the way I drive, but because clearly there was a factual dispute over whether the deceased caused the accident. The CofA focused solely on Mr. Reynolds’ statement right after the accident, and not how in the real world the accident could occur. Check out the factual recitation in the beginning of the opinion to understand.

People v. Rivera                        Restitution

Mr. Rivera pled to an F4 Sexual Assault on a Child. The Court imposed a sentence of 2 to life. The Court also granted the DA’s motion for restitution, which included counseling for the child complaining witness. The trial court denied Mr. Rivera’s motion for in camera review of the counseling records justifying the cost, and also denied discovery of the same counseling records. The CofA found no abuse of discretion in ordering Mr. Rivera to pay for the costs of counseling as part of a restitution order.