April 28, 2010

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 1st Degree Burglary, instead only 2nd 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.

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