December 10, 2010

Colorado Court of Appeals decision 12-9-10

People v. Moore            Defective Curtis advisement   / Juror Miscoduct / Confrontation Clause and Pen Packs         
Facts: A jury found Mr. Moore guilty of attempted first-degree murder,
two counts of first-degree burglary, first-degree assault, sexual assault, menacing, and violation of a protection order. Further, the trial court adjudicated Mr. Moore to be a habitual offender. During the Curtis advisement, the trial court advised Mr. Moore,” ‘the Prosecutor may ask you what [your] prior felony conviction or convictions were for’ and ‘whether the convictions were by a guilty plea, or whether you actually went to trial, and were found guilty at the trial.’ “ In People v. Gomez, the Court of Appeals “held that ‘in cross-examining a defendant, the prosecutor may not ask whether a prior felony conviction arose from a plea or a trial,’ and that a Curtis advisement to the contrary is erroneous.” (Moore, quoting Gomez)(emphasis added).
Issue: Whether the trial court committed plain error with a defective Curtis advisement?
Held: No.
Reasoning: Because Colorado law was unsettled and because a different division of the Court of Appeals did not decide Gomez until after Mr. Moor’s trial the error did not amount to “plain error”.
Issue: Whether the trial court abused its discretion by not excusing a juror who’s husband read to her Mr. Moore’s criminal history from the newspaper?
Held: Ummm… did you see the crimes in which the jury convicted Mr. Moore? Then it was not error.
The CofA outlined this procedure for dealing with prejudicial publicity,
“A trial court should deal with juror exposure to prejudicial publicity during trial as follows:
1) the trial court must determine whether the publicity is inherently prejudicial;
2) if so, the court should canvass the jury to determine whether the jury learned of the prejudicial publicity; and
3) the trial court should individually examine exposed jurors to determine how much they know of the publicity and what effect, if any, the publicity will have on their deliberations.”
After the article on Mr. Moore’s case came out in the newspaper, Juror S disclosed that her husband read the entire article to her “from another room.” Juror S claimed to not have paid much attention, that she did not remember anything from the article, and of course, she could be “fair and impartial.” (hahaha….seriously, with bitch counts thrown into the mix?) Further, Juror S claimed that she did not tell her husband to stop for fear of violating the trial court’s order to not discuss the case at all with anyone.  The CofA affirmed the trial court’s decision to keep Juror S on the panel.
Issue: Confrontation and Pen Packs
The CofA found no Confrontation Clause error in admitting the pen packs.

December 6, 2010

Colorado Supreme Court decisions 11-30-10

People v. White        Juror Qualifications – Residency
Ann Roan previously sent around an email about this decision. The Colorado Supreme Court held that a juror no longer living in Teller County and who did not intend to move back to Teller County anytime soon, still qualified as a resident of Teller County. The Court reasoned that because the juror was a college-aged kid (although not actually in college or any educational institution), lived with his sister, had just moved from his dad’s house in Teller County, and at some point in his life intended to move back. Justice Coats, he of strict Constitutional interpretation when it limits our clients’ ability to address violations, wrote for the majority, “Beyond these syntactical considerations, statutory definitions, and interlocking statutory schemes, interpreting the existing juror qualification statute as providing for broad-based juror eligibility on the basis of either majority presence in the county or maintaining a domicile there comports with both the realities of our contemporary mobile culture and the extremely minimal nature of constitutional vicinage requirements. Ensuring that jury verdicts result from the common sense judgment of lay representatives of the community and that an accused is provided with a fair opportunity for obtaining a representative cross section of the community on
the jury is in no way furthered by hyper-restrictive residency requirements.” Read a history of Justice Coats decisions, and you will find that he limits any statute to prevent a plaintiff in the civil arena from winning, he reads defense objections very narrowly, and he limits any exercise of constitutional rights by the accused in criminal cases. Yet, now he wants to read a straight forward residency statute broadly, and just coincidentally, that reading obviates the need for a re-trial of Mr. White. Incredible result oriented decision.

People v. Martinez Closing Argument – Prosecutorial Misconduct - Tailoring Argument / Harmless Error
Essentially, the Colorado Supreme Court, unlike the U.S. Supreme Court, held that a prosecutor cannot make a generic tailoring argument. 
Facts: The prosecution asserted that Mr. Martinez ‘tailored’ his testimony to fit the evidence at trial. The Court of Appeals found the prosecution did not violate Mr. Martinez’s rights because the record of the trial supported the prosecution’s argument. Interestingly, the Colorado Supreme Court pointed out that the CofA went through the record to support the prosecutor's argument, but the prosecutor only generically reference how Mr. Martinez tailored his testimony.
Issue: Whether Colorado law prohibits prosecutors from making generic tailoring arguments?
Whether the prosecution's tailoring argument is harmless error?
Held: Yes and Yes.
Reasoning: The Colorado Supreme Court defined generic tailoring arguments: “Generic tailoring arguments occur when the prosecution attacks the defendant's credibility by simply drawing the jury's attention to the defendant's presence at trial and his resultant opportunity to tailor his testimony.” The Court tracked and cited favorably U.S. Supreme Court Justice Ginsberg’s dissent in Portuondo v. Agard, 529 U.S. 61, 120 S.Ct. 1119, 146 L.Ed.2d 47 (2000). In Potuondo, the U.S. Supreme Court held that tailoring arguments do not violate the Federal Constitution. Although Mr. Martinez's counsel objected, the Colorado Supreme Court determined that Mr. Martinez failed to raise this issue under the Colorado Constitution because Mr. Martinez's counsel did not cite specifically cite the Colorado Constitution in the objection. Nevertheless, the Court found the prosecutor’s argument improper because the prosecutor argued only generically that Mr. Martinez tailored his argument. In finding the argument improper, the Court wrote, “During rebuttal argument, the prosecutor referenced defendant's presence at trial two times. The prosecutor first suggested that the defendant had been ‘able to sit in here the whole time and listen to what everybody had to say.’ The prosecutor then asked the jury ‘to judge the credibility of all witnesses’ because he ‘was able to tailor his statement with what everybody else had to say because he's been here.’ In all three instances, then, the prosecutor clearly failed to tie her tailoring arguments to evidence in the record. Instead, the prosecutor merely referenced the defendant's presence at trial, asking the jury to draw an unreasonable inference regarding the defendant's credibility. These are precisely the types of generic tailoring arguments that rise to the level of improper trial argument.”  Unfortunately, the Court found the prosecutor’s argument improper only under Rule 52(c) – not the Colorado Constitution (again, because trial counsel did not cite the Colorado Constitution specifically in his objection). Thus, the Court easily found that the error did not rise to the level of a plain error.  As Ann Roan stated in her previous email, always cite the Federal and Colorado constitutions not only in your motions and briefs, but also in your objections and arguments.

Colorado Court of Appeals decision 11-24-10

People v. Allen         Withdrawl of Plea – Misapprehension of Sentence – New Evidence – Possible Previously Undisclosed Defense / Sexually Violent Predator
Synopsis: Factually, pretty simple - Mr. Allen’s DNA matches the sperm found on a female neighbor who said some masked stranger broke into her home, and raped her for hours. Procedurally, also very simple - stellar private counsel works out deal for Mr. Allen to plead guilty to first-degree sexual assault, crime
of violence, second degree burglary, and second degree assault. Most astoundingly, Counsel and got Mr. Allen to stipulate … STIPULATE!!! to this sentence: 10 – 25 years in prison, and an indeterminate sentence up to the rest of Mr. Allen’s natural life. Again, Counsel stipulated to that deal. After plea, but prior to sentencing, Mr. Allen got wise, and fired the private lawyer. The Court appoints the PD’s Office. Mike McHenry, err… Honorable Mike McHenry, former PD in the Springs Office and all-around excellent lawyer, tried to withdraw Mr. Allen’s plea to no avail.
            Whether Mr. Allen misapprehended the possible sentence?
            Whether Lariam Toxicity defense could necessitate withdrawl of Mr. Allen’s plea?
            Whether the trial court erred in ignoring SVP evaluation and found Mr. Allen to be a sexually violent predator?
Held: No and No and No.
Misapprehension: The Court of Appeals essentially bought the plea lawyer’s version of events over Mr. Allen’s. (On its face, I cannot imagine, after 15 ½ years of practicing criminal law, a client knowingly and intelligently pleading to this deal. Clients who face a ton of time become more and more strident as the final date comes closer to avoid the inevitable sentence.)
New evidence or Possible Defense as a reason to withdraw plea: The CofA held that Lariam Toxicity did not qualify as ‘new evidence’ and did not justify a withdrawl of Mr. Allen’s plea. The CofA skirted the whole new evidence issue and made a series of conclusory statements to justify the holding, “As the [trial] court noted, defendant's signed plea agreement indicated that he forfeited the right to raise defenses by pleading guilty. Because the record indicates that defendant was advised of the guilty plea's consequences, we conclude that he entered his plea knowingly and voluntarily.”
Ignoring the SVP determination: Incredibly, despite the stranger-hours-long rape, the evaluator found Mr. Allen did not qualify as a ‘sexually violent predator’. However, the trial court disagreed, and found Mr. Allen to be a sexually violent predator. The CofA affirmed the trial court, reasoning that the SVP evaluation is a guide not a mandate for judges. Thus, judge can free disregard the SVP findings if the judge did not abuse his/her discretion. Good to use when some ignorant judge claims that he/she/it must follow the SVP findings.

Colorado Supreme Court decision 11-22-10

People v. Wehmas             Warrantless Arrest & Search in a Home / Exigent Circumstances
Synopsis: The prosecution alleged Mr. Wehmas drove his car drunk, hit another car, and went into his apartment without exchanging information. Someone called the police to report the accident, and snitch on Mr. Wehmas. The police never sought a warrant. Instead, the police forced their way into his apartment, and arrested Mr. Wehmas when he was asleep in his bed.
Issues: The Court took cert. on two issues
1)    Whether DUI is a grave offense that can justify a warrantless search and arrest in someone’s home?
2)    Whether dissipation of a person’s blood alcohol content is a sufficient exigency to justify a warrantless arrest and search of someone inside their home?
Held: 1) Yes, the Court found DUI to be a grave offense.  2) However, the Court found no such exigency exited to justify not obtaining a warrant.
            Grave Offense: In Welsh v. Wisconsin, 466 U.S. 740, 750, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984), Mr. Welsh allegedly drove drunk, drove off the road, crashed his car in a field, and abandoned the vehicle. The U.S. Supreme Court held that whatever a grave offense maybe, it was not Mr. Welsh’s alleged DUI. The Colorado Supreme Court differentiated Mr. Wehmas’s case from Welsh. The Colorado Supreme Court found that the U.S. Supreme Court held DUI as not a grave offense because Wisconsin classifies a first-time DUI as a non-criminal offense, non-jailable offense. The Colorado Supreme Court then went on to claim that the U.S. Supreme Court came up with a bright-line rule to define whether something is a “grave offense” – whether or not jail is a possibility. Because a first-time DUI in Colorado carries some possibility of jail, the Colorado Supreme Court held that DUI is indeed a ‘grave offense’.
            Exigent Circumstances: Thank the sweet baby Jesus however, the Colorado Supreme Court held no exigent circumstances existed to justify the warrantless arrest and search of Mr. Wehmas. The Court specifically addressed why dissipation of alcohol in Mr. Wehmas’s blood did not justify a warrantless arrest of him in his home.  The Court cited other evidence besides a chemical test, such as extrapolation based upon a BAC test and two eyewitnesses who stated Mr. Wehmas was drunk. Further, the Court found that Colorado couldn’t force a chemical test of someone’s blood when no there is no harm to a victim or violence alleged. Accordingly, the Colorado Supreme Court affirmed the District Court and County Court below which originally suppressed the evidence.

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