Colorado Court of Appeals 1-21-10

People v. Glaser           Constitutional Right to Speedy Trial

The Court of Appeals noted, “As the trial court aptly observed, the procedural history of this case is extraordinarily ‘tortured and star-crossed.’ ” The trial court dismissed all the charges against Mr. Glaser. The Trial Court reasoned trial would violate Mr. Glaser's right to speedy trial under the Constitution. The Court of Appeals reversed. Facts: Essentially, Mr. Glaser hired his first lawyer, and then could no longer afford that lawyer. The Court appointed ADC (PD's had a conflict). The case went to trial, but the trial court declared a mistrial. Subsequently, Mr. Glaser's lawyer committed suicide. Mr. Glaser's second court appointed lawyer moved to continue the trial because the first court appointed lawyer committed suicide. Further, the second court appointed lawyer conceded the delay is chargeable to the defense. At the subsequent trial setting, the second court appointed lawyer did not show up because of some mental health issues. Further, during the subsequent trial (re-set because the lawyer's preceding mental illness issue), the second court appointed counsel disclosed he was suffering from mental illness. The trial court found the second court appointed counsel could not continue to represent Mr. Glaser at that time, and declared a mistrial. At one point or another prosecution took the case up a on appeal prior to trial, and the defense filed a  Rule 21 to address a bond condition - both resulting in delays.

The trial court found that the delay in proceeding to trial chargable to the government because the lawyer who committed suicide and the lawyer who suffered a mental breakdown were both hired and paid for by the State. The Court of Appeals did not like this reasoning, and reversed the trial court's order, re-instated the charges, and remanded the case. Further, the Court of Appeals did not like the "prospective delay" reasoning the trial court did in determining the violation. The trial court made its ruling in February 2008, but included the time up to trial, which was scheduled for May 2008. 

Colorado Supreme Court 1-19-10

People v. Martin    Implied Waiver of Rights Under Miranda
Stolen from the synopsis: "The Supreme Court of Colorado holds that, under the particular facts and circumstances of this case, the defendant impliedly waived his Miranda rights. He came to the police station voluntarily in order to speak with police officers about a shooting. Prior to questioning, he was advised of and acknowledged each of his Miranda rights. He answered the officers’ questions without hesitation for almost an hour and forty-five minutes. During this time, the defendant had several opportunities to pause and consider his rights. He did not choose to assert his rights until after the officers told him that witnesses had identified him as the shooter. Under these particular facts and circumstances, the defendant’s knowing, intelligent, and voluntary waiver may be inferred from his course of conduct."

Colorado Supreme Court 1-11-10

People v. Bergerud               Complete Breakdown in Communication / Counsel Usurping Client’s Fundamental Rights /  Failure to Investigate Legitimate Defense

Facts: The prosecution alleged Mr. Bergerud shot and killed his ex and her new beau. The state sought death. Mr. Bergerud hired private counsel, went to trial, and the first jury deadlocked. After the trial court declared a mistrial, the prosecution no longer pursued the death penalty, and the trial court appointed the Public Defender’s Office (specifically Tammy Brady and Brian Connors - the Office Head in Greeley, and the Senior Lawyer in Greeley; also, from the minute orders David Wymore and David Kaplan also appeared; thus, not a case the PD’s took lightly). A second trial commenced, on the 5^th day of trial, after opening statements, client complained that he wanted to run self-defense. Defense counsel’s opening essentially attacked the mens rea element, and did not argue self-defense. Mr. Bergerud complained to the trial court that neither of his defense lawyers listened to him, did not investigate his claim of self-defense, and his former lawyer in a letter to Mr. Bergerud lamented not raising self-defense in the first trial (the first lawyer also pursued the same strategy as the PD’s did in attempting to undermine the mens rea element). The Court of Appeals reversed the conviction, and held that defense counsel’s opening statement impermissibly conceded guilt on lesser counts.

On Remand: The Colorado Supreme Court reversed, but remanded the case for further proceedings. The Court made notes of these possible errors to be determined on remand:

1)         Did defense counsel’s opening statement usurp Mr. Bergerud’s fundamental right to testify? If so, Mr. Bergerud would be entitled to a new trial with new counsel.

2)         Did Mr. Bergerud’s court appointed lawyers fail to investigate a legitimate self-defense claim? If so, then Mr. Bergerud might be entitled to a new trial.

3)         When, if ever, did Counsel know there was a complete breakdown in communication with Mr. Bergerud? If Counsel knew a complete breakdown in communication existed prior to trial, but did not bring that to the trial court’s attention, then Mr. Bergerud might be entitled to a new trial with new counsel.

Lastly, the Colorado Supreme Court seemed irritated that when the trial court asked for input from the PD’s, the PD’s remained silent, and did not present their side of the issue (as we should do, trained to do, and must do in order to not undermine the client further). Editorial Note: Just on the surface, from the umpteen motions filed by the PD’s since appointment, to the numerous hearings, to the four days of jury selection, there is no chance there was any derelict in duty (and the lawyers who represented Mr. Bergerud mostly practiced death penalty law).  We had a difficult delusional client, and went with a defense we thought might save him from a life in prison. Nevertheless, this case presents defense lawyers with a new set of issues to consider – essentially make sure client is on board, and if not, determine if there is a complete breakdown in communication. If the client is not on board with the defense, but no complete breakdown in communication exists, do not specifically undermine what client may testify to in opening statement or otherwise.

People v. Broder    Unambiguous Request for CounselThe Colorado Supreme Court held that when Officer Broder asked to see his Lieutenant to see if he had "coverage for counsel" that he did not make an unambiguous assertion to his right to counsel. Thus, the Court held the detective did not violate Mr. Broder's right by further inquiry into whether Officer Broder wanted a lawyer. The Court reversed the trial court's suppression order (the prosecution alleged Officer Broder committed unlawful sexual contact with a female arrestee).

People v. Navarez-Zambrano        Change of VenueIn a seemingly rare Per Curiam opinion, the Colorado Supreme Court held:

“In People v. Gutierrez, No. 09SA69, slip op. at 8 n. 4 (Colo. Dec. 14, 2009), this court determined that '[t]he filing of a federal tax return reporting the past possible misuse of a social security number to comply with federal law requiring the reporting of taxable income and the payment of federal taxes does not constitute a crime.' Based on this reasoning, this court further concluded that the crime of criminal impersonation stemming from the alleged use of a fictitious social security number to earn income is 'fully completed' prior to the filing of any tax returns. Id. Applying the holding of Gutierrez to the case before us, we find that the defendant would have “fully completed” the alleged crime of criminal impersonation prior to the filing of any tax returns. The defendant's alleged filing of the tax returns in Greeley therefore could not constitute an act in furtherance of the crime of criminal impersonation. We thus agree with the trial court's conclusion that the People failed to demonstrate that the defendant committed an act in furtherance of the crime of criminal impersonation in the Nineteenth Judicial District. Accordingly, we affirm the trial court's transfer of the case to the Thirteenth Judicial District.”

Stanton v. Schultz         Issue Preclusion
Yes, this is a civil case. However, the "Stanton" is Rowe Stanton a criminal defense lawyer who was sued along with Jim Covino, another defense lawyer and former public defender. In Federal Court, the federal district court appointed Mr. Stanton and Mr. Covino to represent Mr. Schultz, a former guard in at the maximum security facility in Florence. Mr. Schultz filed a malpractice suit against Messrs.. Stanton and Covino after a jury in federal district court convicted him of abusing prisoners. He claimed that Messrs.. Stanton and Covino committed malpractice by not calling a former inmate who would testify that Mr. Schultz never beat him. Unfortunately, the Colorado Supreme Court reversed the trial court's summary judgment in favor of Messrs.. Stanton and Covino. The trial court found the 10th Circuit previously held that neither counsel committed malpractice, and therefore Mr. Schultz was precluded from litigating the same issue in state court. However, the Colorado Supreme Court disagreed, found the 10th Circuit only held Mr. Schultz did not exercise due diligence in finding the "newly discovered evidence." Thus, the Colorado Supreme Court remanded the case for trial. Crazy. At most, this witness seems like an impeachment witness, and former guard current douche bag Schultz cannot come to grips with the fact you cannot beat prisoners when you get a job as a prison guard. Mr. Stanton does good work on many tough cases, and Mr. Covino is a conscientious and thorough lawyer.

Colorado Court of Appeals 12-24-09

People v. Barrus       Self-Defense and Obstructing a Peace Officer / Severance-Joinder / Indecent Exposure

Obstructing, Self-Defense and Severance - In two separated incidents, the prosecution alleged Mr. Barrus committed indecent exposure, and in both he attempted to flee the police. First on May 14 Mr. Barrus actually got away, and on June 2, he attempted but could not flee. In the first, a school teacher reported a man was naked in his car in the parking lot. In the June 2, the police got a call of a man walking around naked. Both incidents involved a black Toyota. However, in the first incident Mr. Barrus claimed he wanted to testify to establish self-defense against the obstructing charge. (If the trial court agreed, than those charges in which Mr. Barrus would testify to would mandate severance from the other charges). The trial court found self-defense does not apply to obstructing a police officer. The Court of Appeals reversed the obstructing conviction, and remanded that charge for a new trial. The CofA held that a person does have a right to self-defense to the application of unlawful or excessive force, and thus, a person is entitled to a self-defense instruction if there is evidence that supports the defense. However, the CofA upheld the conviction on the two F5 Vehicular Eluding charges. The CofA did not think the verdict on the obstructing a peace officer influenced the verdicts on the eluding counts.

Indecent Exposure – The CofA held that a person running naked without more is insufficient to support a conviction for indecent exposure. The
Court wrote,

“we reject any suggestion that the elements are satisfied simply by proof that defendant was naked. By its very terms, the statute requires a defendant to expose his or her genitals to another person in a manner that is likely to cause affront or alarm. In other words, to satisfy the elements of the crime of indecent exposure, a person must do something that would make his or her genitals visible to another person."

People v. Flockhart              Jury Pre-Deliberation Discussion / Recusal / Fourth Amendment Standing / Challenges for Cause

Pre-deliberation Discussion - The Court of Appeals held that the trial court erred in allowing pre-deliberation discussions. However, instead of simply reversing the conviction, the CofA remanded for a hearing on whether the error was harmless beyond a reasonable doubt. (one Appeals Court Judge dissented from this portion of the opinion, and in an lengthy dissent went on and on about how “social science” has shown pre-deliberation discussions do not adversely affect a defendant).

Challenges for Cause – the trial court required both the challenges and the arguments on those challenges to be heard in open court in front of the very jurors defense counsel sought to oust from the panel. The CofA found the trial court erred because the procedure may create a bias against the defendant that did not exist previously. However, the CofA did not find the error substantial enough to be plain error.

Recusal – The CofA held, despite similar charges, merely showing that the trial judge previously prosecuted the defendant did not require recusal of the judge.

People v. Hunter  Definition of “Stranger” under Sexually Violent Predator

The Court of Appeals held that because Mr. Hunter was a neighbor of the alleged victims, he did not fit the definition of “stranger” under the Sexually Violent Predator statute. The CofA found that because Mr. Hunter lived in the trailer next door to the victims, met them, and that they knew him, that Mr. Hunter did not fit the definition of stranger.