June 22, 2010

2010 Colorado Acts - Escapes

Escapes – HB 10-1373 – Most Escapes now may be served concurrently
(1)  Escapes, under C.R.S §18-8-208, may be served concurrently if the person ‘escaped’ from a direct sentence to community corrections or intensive supervision parole (Under the new subsection (2) of C.R.S. §18-8-209 Concurrent and Consecutive Sentences);
(2)  Attempt to Escape, under C.R.S §18-8-208.1, is a class 5 felony and may be served concurrently if the person ‘escaped’ from a direct sentence to community corrections or intensive supervision parole (under new subsection (1.5) under 18-8-208.1 Attempt to Escape);
(3)  Aiding Escape, under C.R.S. §18-8-201, may be served concurrently if the person ‘escaped’ from a direct sentence to community corrections or intensive supervision parole (Under the new subsection (2) of C.R.S. §18-8-209 Concurrent and Consecutive Sentences);
(4)  Transfer from DOC to a community corrections facility – if the person escaped under these conditions, he/she committed a class 4 felony and the time must be served consecutively.
(5)  Work-Release Walk-A-Ways -  Court must still sentence the client consecutively.

2010 Colorado Acts - Probation and the 2-prior Felony Rule

Probation and 2-prior Felony Rule HB 10-1338
a. Section §18-1.3-201 new law passed by the legislature rids us the 2-prior felony rule for most offenses;

b. The 2-prior felony rule still applies to:
                 i.    Murder,
                 ii.   Manslaughter,
                 iii.  Robbery and Aggravated Robbery,
                 iv.  Theft From Person,
                 v.    1st and 2nd degree burglary,
                 vi.   Offenses against kids,
                 vii.  1st or 2nd degree kidnapping,
                 viii. 1st or 2nd degree assault, and
                 ix.    Sex offenses (NOT failing to register).
                 x.     Moreover, the 2-prior felony rule also still applies to attempt or conspiracies to commit any of the aforementioned enumerated crimes.

June 21, 2010

Colorado Acts - DUI and Alcohol Related Traffic Offenses

DUIs and other Alcohol Related Driving Offenses
HB 10-1347 42-4-1301 DUI’s
(1)  New laws impose mandatory minimums and specifically states, “THE PENALTY SHALL CONSTITUTE A SEPARATE PERIOD OF IMPRISONMENT THAT THE OFFENDER SHALL SERVE IN ADDITION TO THE IMPRISONMENT COMPONENT OF HIS OR HER ORIGINAL SENTENCE.” (Thankfully, the language does not state “consecutive to…”)
(2)  DUI First Offense - Jail sentences and other penalties:
a.     Any DUI 1st conviction carries 5 days mandatory jail (convictions include deferred sentences).
b.    A DUI conviction with a BAC of a .2 or more carries a minimum of 10 days jail.
c.     $600 minimum fine;
d.    48 UPS hours mandatory minimum;
e.     The period of probation cannot exceed two years.
(3)  DWAI First Offenses
a.     2 days mandatory jail
b.    DWAI conviction with a BAC of a .2 or more carries 10 days mandatory minimum with a maximum of a year;
c.     $200 fine;
d.    24 hours UPS;
e.     The period of probation cannot exceed two years.
(4)  Second Offenses - Alcohol Related Driving -
b.    Not eligible for earned time or good time during mandatory tens days, but the sentencing court must give any credit for any time previously served.
c.     48 UPS hours minimum, 120 UPS hrs maximum;
d.    1 year jail suspended;
e.     2 years minimum probation;
f.      If the offense occurred within 5 years of a previous conviction, the Court must impose jail – NOT work release or any other sentencing alternative – unless in school, employed, or attending alcohol classes.
(5)  Third or more alcohol related offense –
a.     60 days jail; not eligible for earned time or good time;
b.    $600 fine minimum;
c.     48 UPS hours up 120 UPS hrs;
d.    2 years minimum probation;
e.     1-year jail suspended.
(6)  Probation for 2nd and 3rd Alcohol Related Offenses –
a.     1 year jail suspended;
b.    Level II Education and Therapy;
c.     Court may impose an interlock device;
d.    Court can terminate probation early if all hurdles jumped.

2010 Colorado Acts - Drug Offenses

Drug Offenses – HB 10-1352
(1)           Use
a.     Class 2 misdemeanor (in 15 years, I’ve never had the prosecution charge this offense);
(2)           Possession (now with its very own section 18-18-403.5) -
a.     F6 if 4 grams or less of a schedule I or II;
b.    F4 if more than 4 grams of a schedule I or II;
c.     Meth - F6 if 2 grams or less and F4 if more than 2 grams;
d.    M1 for possession of schedule IIIs, IVs, and Vs.
(3)           Distribution to Minors
a.     Mandatory minimum of 4 years, and up to 32 years in prison;
(4)           Marijuana
a.     Open use or display - P2 if 2oz or less, but 15 days jail (yikes!); M2 if more than 2 oz;
b.    Possession – M2 if 2 to 6 oz; M1 if more than 6 oz but less than 12 oz; F6 if more than 12 oz;
c.     Sharing a joint – P2 (transferring or dispensing 2oz or less for no consideration);
d.    “Manufacture” of weed – F4; F3 if 2nd offense
e.     Selling weed – F5 if less than 5 lbs; F4 if 5lbs or more; F3 if 100lbs or more; F3 if 2nd offense.
f.      Selling to Minors – F4 or F3 depending on how much; F3 - selling to anyone under 15 carries a mandatory minimum sentence of 4 years up to 32;
g.    Growing Weed – M1 if 6 plants or less; F5 more than six but less than thirty plants; F4 for 30 or more plants;
(5)           Special Offender
a.     Not possession;
b.    F2 if distributed, introduced, or imported more than 2 grams of Meth or more than 4 grams of a schedule I or II substance;
c.     F2 if defendant or a confederate had access to a firearm in a “manner hat posed a risk others or in a vehicle the defendant was occupying during the commission of the offense.”
(6)           Fraud and Deceit 18-18-415 is now an F6 down from an F5;
(7)           Drug Offender Surcharges 16-11.5-102
a.     “Shall be only used…” for folks who need treatment.

2010 Colorado Acts - Indecent Exposure and Public Indecency

Indecent Exposure and Public Indecency HB 10-1334
Public Indecency HB 10-1334
a.              The Legislature rewrote subsection (e);
b.             The legislature jettisoned the simple, concise word “masturbation” in subsection (e) for the attack inviting, “A KNOWING EXPOSURE OF THE PERSON'S GENITALS TO THE VIEW OF A PERSON UNDER CIRCUMSTANCES IN WHICH SUCH CONDUCT ISLIKEL Y TO CAUSE AFFRONT OR ALARM TO THE OTHER PERSON;”
c.               A second conviction gets bumped up from a petty offense to a class one misdemeanor. Further, if the second conviction under subsection (e) occurs within 5 years of the first, the legislature now defines it as “unlawful sexual behavior,” i.e. the person must register as a sex-offender.
            Indecent Exposure
a.              The same bill relocated the masturbation section of Public Indecency to 18-7-302, the Indecent Exposure statute. The relocated masturbation section adds the language “in a manner likely to cause affront or alarm;”
b.             Further, prosecution must prove the person masturbated with “the intent to satisfy the sexual desire of any person.”

Colorado Supreme Court decisions 6-21-10

People v. Holt            Miranda and the Definition of Custody
Synopsis: During the execution of a warrant on Mr. Holt’s apartment, the police knocked and announced their presence, and when Mr. Holt’s fiancĂ© answered, “entered [the apartment] quickly.” The lead detective went directly to Mr. Holt, put is hand on Mr. Holt’s shoulder, told him not to move, and handcuffed him. About five minutes later, the lead detective asked Mr. Holt to answer some questions, and Mr. Holt agreed. Thereupon, the detective un-handcuffed Mr. Holt, led him to an unmarked police van, and interrogated him for 25 minutes.  After interrogating him, the detective ‘arrested’ Mr. Holt and advised him pursuant to Miranda.
Issue: Whether the police held Mr. Holt in custody?
Held: Yes. 
Reasoning: The Court stated, "First, the officers used a degree of force typically associated with arrest when they entered Holt’s apartment with their weapons drawn and handcuffed him. Second, Holt was handcuffed and subject to significant physical restraint when he consented to answering the detective’s questions. Third, during the encounter no officer told Holt that he was free to leave. Fourth, Holt appeared to be the prime suspect in the investigation, which would have affected his perceived freedom to leave. Fifth, Holt had every reason to believe he would be arrested following interrogation, and his words and actions during interrogation indicate that he knew he was likely to be arrested. Finally, Holt was isolated and interrogated inside a police van -- a non-neutral setting -- for twenty-five minutes. A reasonable person in these circumstances would have felt deprived of his freedom of action in a manner similar to a formal arrest. Therefore, we conclude that Holt was in custody during interrogation."

People v. Null            Miranda, Custody and Traffic Stops / Violation of Express Consent Law and Remedy
Issue: Whether a routine traffic stop transformed into custody?
Held: Yes.
Reasoning: The police held Mr. Null for “a lengthy period of time,” and Mr. Null was not free to leave. After claiming he failed roadsides, the police interrogated him on the side of the road. During the interrogation, Mr. Null stood with his back to a patrol car while one officer stood to his left and another officer stood to his right. The Court held such detention constituted custody for the purposes of Miranda, and affirmed the trial court’s suppression order.
Issue: Whether ‘extraordinary circumstances’ prevented the police from conducting a test of Mr. Null’s blood?
Held: No. 
Reasoning: Pursuant to statute, the police offered Mr. Null the choice of either a blood test or a breath test. Mr. Null chose blood. The police told him that medical staff could not make it to the station to take his blood. The police then ordered him to take a breath test, and Mr. Null refused. At a hearing, the prosecution offered no evidence to justify the ‘extraordinary circumstances’, which prevented medical staff from taking Mr. Null’s blood. ‘Extraordinary circumstances’ encompasses, not just police, but medical staff. Thus, inconvenience is not a justification.
Issue: Did the trial court abuse its discretion by both suppressing the refusal of the breath test and dismissing the DUI charges?
Held: No. 
Reasoning: The Court stated, “[L]aw enforcement may not violate a defendant’s statutory rights with impunity. Therefore, we hold that the trial court acted within its discretion when it suppressed the evidence of Null’s refusal to take a breath test and dismissed the DUI charge against him.”

In re: People v. Spykstra            Subpoena Duces Tecum  / DA Standing to Object To Subpoenas / Unreasonable and Oppressive Subpoenas
Issue: Whether the subpoena to produce emails from the family computer was unreasonable and oppressive?
Holding: Yes.
The Court reasoned that the subpoena was unreasonable and oppressive because Counsel for Ms. Spykstra could not point to anything in particular that led her to believe the emails offered any material evidence. Moreover, the Court stated flatly, “Rule 17(c) subpoena is not an investigatory tool.” The Court came up with a 5-part test for subpoenas:           
(1) A reasonable likelihood that the subpoenaed materials exist, by setting forth a specific factual basis;
(2) That the materials are evidentiary and relevant;
(3) That the materials are not otherwise procurable reasonably in advance of trial by the exercise of due diligence;
(4) That the party cannot properly prepare for trial without such production and inspection in advance of trial and that the failure to obtain such inspection may tend unreasonably to delay the trial; and
(5) That the application is made in good faith and is not intended as a general fishing expedition.
The Court based much of this decision on U.S. v. Nixon and Commonwealth v. Lam.
Issue: Whether the trial court abused its discretion when it ordered the parents of the complaining witness to allow a defense expert into their home to search their computer?
Holding: Yes.
Reasoning: The Court reasoned that Rule 17(c) does not give the defense the authority conducts searches.
Issue: Whether the prosecution has standing to object to a subpoena duces tecum served on the parents to produce emails?
Holding: Yes
Reasoning: The Court reasoned that the district attorney has broad authority as a party in any criminal case to ensure witnesses do not get harassed.

June 10, 2010

Colorado Court of Appeals decisions 5-13-10

People v. Drew             Jurisdiction / Frivolous Appeal / The ‘Fringed Flag’ Argument
Brian Conners previously sent an email about this case.
Frivolous argument #1: Mr. Drew contended because the caption on the information charged ‘DONALD JAMES DREW,' the state convicted a fictional person. The CofA held the claim to be frivolous.
Frivolous argument #2: “[T]he trial court lacked jurisdiction over him and the alleged offenses because it is an ‘inland admiralty court’ evidenced by the presence of a fringed flag.” The CofA cited and followed McCann v. Greenway, 952 F.Supp. 647, 650 (W.D.Mo.1977), “[o]ther Courts have considered [the ‘fringed flag’ argument]. Those courts have labeled the position as ‘frivolous.’ In the apparent belief that by analyzing the law of the flag it could ‘kill [the] argument for good’ and ‘facilitate appellate review,’ id., the court then engaged in an extended discussion of that law. We harbor no such
optimism and decline to address the matter further.”

People v. Brooks            Restitution / 35(c) Illegal Sentence
Pro Se, Mr. Brooks contested the district court’s jurisdiction to order restitution from a juvenile adjudication as part of his adult felony conviction. The Court of Appeals agreed, and vacated over $35,000 worth of restitution ordered by the district court in the adult felony case. Unfortunately, Mr. Brooks won the battle, but lost the war. The CofA found that the juvenile court retained jurisdiction over the restitution amount until either Mr. Brooks satisfied the order or the juvenile court terminated the order. Incidentally, Mr. Brooks and his lawyer agreed to the restitution amount as part of the plea to an F4 with a stipulation to probation. Idiotic, because (1) kids all face generally face the same sentence whether it is a petty offense, misdemeanor, or felony -  0-2 years in the Department of Youth Corrections (DYC); (2) the Court would have granted probation if the Court found Mr. Brooks found guilty at trial; and (3) if the juvenile court sentenced Mr. Brooks to the maximum of 2 years DYC, he would no longer have the $35,000.00 obligation. Again, idiotic.

People v. Gladney            Collateral Estoppel / Issue Preclusion / 1 Murder / RICO
Issue: In his federal case, the government convicted Mr. Gladney of a series of RICO charges. The RICO case included a special verdict where the federal jury found that Mr. Gladney committed a homicide in Adams County. The state subsequently prosecuted Mr. Gladney on the same homicide. Mr. Gladney contended, because of the special verdict in the RICO case, C.R.S. § 18-1-303 barred further prosecution.
Held: The CofA held C.R.S. § 18-1-303 did not bar subsequent prosecution.
Reasoning: The CofA held the subsequent prosecution in state court for the same murder charge did not violate Double Jeopardy. The CofA applied § 18-1-303 - Second Trial Barred By Prosecution In Another Jurisdiction to determine if, by statute, the statute barred further prosecution in state court. The CofA went through a five-part test:
(1) the first prosecution must have resulted in a conviction or an acquittal;
(2) the same conduct must form the basis of both prosecutions;
(3) the conduct must constitute an offense within the concurrent jurisdiction of this state and of the United States;
(4) the offense for which the defendant was formerly convicted or acquitted requires proof of the same facts required by the offense for which
he is subsequently prosecuted; and
(5) the law defining each of the offenses is intended to prevent substantially the same harm or evil.
            The CofA assumed the first two factors the test applied, but held the federal court did not possess concurrent jurisdiction. Further, because the RICCO conviction required proof of facts other than the homicide, the CofA held that the statute did not bar subsequent prosecution. Lastly, the CofA held the statutes seek to curb different so-called evils.

People v. O’Hara                      Wiretaps - § 16-15-102
The CofA held, pursuant to  § 16-15-102 – the wiretap statute, that the elected district attorney needed to authorize any wiretap or subsequent extension of a wiretap. The CofA remanded the case, and ordered if the elected district attorney did not authorize the wiretap, the conviction must be reversed.

People v. Vondra                      Successive Claims / 32(d) / 35(c)
Mr. Vondra pled to a drug deal where the statute mandated a sentence of 24 years and a day. Subsequent to his plea, but prior to sentencing, Mr. Vondra claimed ineffective assistance of counsel, and under Rule 32(d), he moved to withdraw his plea. The District Court denied the motion after “a lengthy hearing.” Mr. Vondra subsequently appealed, but did not appeal the ineffective assistance ruling. The CofA held that because Mr. Vondra did not appeal the ineffective ruling in his direct appeal, Rule 35(c)(3)(VII) barred any consideration of the issue.

June 7, 2010

Colorado Court of Appeals decisions 4-29-10

People in the Interest of A.D.T             Abuse of Discretion / In Camera Review of Social Services Records / Disclosure of Exculpatory Evidence
Issues: Whether the trial court abused its discretion by refusing to conduct an in camera review on 8 of the 9 social services volumes?
Whether the trial court abused its discretion when it refused to disclose exculpatory evidence contained in the volume it did review?
Held: Yes and yes.
Synopsis and Reasoning: The Court of Appeals basically found that the trial court completely abandoned its duty by disregarding the statute, C.R.S. §19-1-307(2)(f), that permitted review of all 9 volumes of social services records the defense subpoenaed into court. Further, the CofA found that due process mandated disclosure of exculpatory evidence from volume 9 to A.D.T.
People In the Interest of A.D.T.: http://www.courts.state.co.us/Courts/Court_of_Appeals/opinion/2010/09CA0848.pdf

People v. Gess            Detainers
1. The CofA held that because Mr. Gess was on parole while being held by the Denver County Jail, he was in the custody of the Department of Corrections (parole is confinement).
2. The UMDDA applied to Mr. Gess despite allegedly committing his offenses after his release from prison.
3. Mr. Gess, despite deficiencies, substantially complied with the UMDDA.
4. When Mr. Gess dismissed his court appointed lawyer, hired his own lawyer, and then fired that lawyer, the time period for compliance with the UMDDA tolled.
People v. Gess: http://www.courts.state.co.us/Courts/Court_of_Appeals/opinion/2010/07CA1998.pdf

United States Supreme Court decisions 6-1-2010

Berghuis v. Thompkins (decided 5-4)  Invocation of the Right to Remain Silent under Miranda 
The U.S. Supreme Court held that a person’s right to silence cannot be invoked through silence, but must be unequivocal and unambiguous. In the same breath the Court reasons that people can implicitly waive their rights through their actions, the Court held a person cannot implicitly, through three hours of silence during an interrogation, invoke her/his right to silence. The Court re-instated the murder conviction, and remanded the case back to Michigan where a jury originally convicted Mr. Thompkins. Justice Sotomayor, dissenting, wrote:
The Court concludes today that a criminal suspect waives his right to remain silent if, after sitting tacit and uncommunicative through nearly three hours of police interrogation, he utters a few one-word responses. The Court also concludes that a suspect who wishes to guard his right to remain silent against such a finding of “waiver” must, counterintuitively, speak-and must do so with sufficient precision to satisfy a clear-statement rule that construes ambiguity in favor of the police. Both propositions mark a substantial retreat from the protection against compelled self-incrimination that Miranda v. Arizona, 384 U.S. 436 (1966), has long provided during custodial

Colorado Supreme Court decisions 6-7-10

Debella v. People            Abuse of Discretion / Unfettered Access to Video Tapes / Sexual Assault on a Child
Issue: Did the trial court abuse its discretion in allowing the jury unfettered access to the videotape during deliberations?
Held: Yes.
Synopsis and reasoning: A jury convicted Mr. Debella of sexual assault on a child. During trial, the trial court admitted videotape and allowed the jury unfettered access to the tape during deliberations. Further, the trial court did not instruct the jury regarding the tape, and did not set up any procedure for viewing the tape. Unlike the defense in People v. Frasco, counsel for Mr. Debella duly objected to the videotape, and preserved the error. The Colorado Supreme Court reversed Mr. Debella conviction. Instructively, the Court wrote: “The court could admonish the jury not to give the exhibit undue weight or emphasis, instruct the jury that it watch the video no more than a specific number of times, or even require that the video be viewed in open court or under the supervision of a bailiff. In selecting those controls appropriate for each case, the trial court will have made a record of its assessment. Here, though, absent such a record and in light of how the inconsistencies of the tape’s content with trial testimony were central to the resolution of the case, we cannot say that the trial court’s failure to exercise its discretion was harmless.”
People v. Clark            Sufficiency of the Evidence / DNA / Sexual Assualt
Issue: Is the DNA match from semen left on the complaining witness’s jacket and a black headband sufficient to convict Mr. Clark of sexual assault.
Held: Yes.
Synopsis and Reasoning: A jury convicted Mr. Clark of sexual assault. The complaining witness alleged that a stranger broke into her home, covered her head with her green fleece jacket, and sexual assaulted her. The SANE exam provided no physical evidence. However, the police recovered semen from the green fleece jacket and a black headband. The complaining witness told police she did not know where the headband came from. Unfortunately for Mr. Clark, the DNA from the semen matched his DNA. Mr. Clark argued on appeal that a DNA match alone, like a sole fingerprint, could not and should not be enough to convict him (the real problem for Mr. Clark was the source of the DNA was semen not some trace DNA evidence where the prosecution did not know the original source). The Supreme Court affirmed the conviction, but on a different rationale than the Court of Appeals.
            The Court of Appeals affirmed Mr. Clark’s conviction, and held pursuant to People v. Ray, 626 P.2d 167 (Colo. 1981) and Silva v. People, 459 P.2d 285 (Colo. 1969), the prosecution must disprove any reasonable explanation for the semen on the jacket and headband. In Ray, the Colorado Supreme Court reversed a burglary conviction where the sole basis for linking the accused to the crime was a fingerprint on the outside of a milk chute, “an innocent location," as the Court put it.
            Under Ray and Silva, the prosecution must disprove any other reasonable explanation for the presence of physical evidence matching the suspect to the scene. The Colorado Supreme Court held the prosecution has no such burden, and instead employed the test from People v. Bennett, 515 P.2d 466 (Colo. 1973). The Court wrote: “We employ a substantial evidence test to determine if the evidence presented to the jury is sufficient to sustain a defendant’s conviction. Our substantial evidence test considers ‘whether the relevant evidence, both direct and circumstantial, when viewed as a whole and in the light most favorable to the prosecution, is substantial and sufficient to support a conclusion by a reasonable mind that the defendant is guilty of the charge beyond a reasonable doubt.’”  The Court also quoted language from Jackson v. Virginia, 443 U.S. 307 (1979), where the U.S. Supreme Court held “if it is found that upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt,” then a conviction may be reversed.


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