April 28, 2010

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.”




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