Colorado Court of Appeals decisions 7-22-10

People v. Butler             ‘Knock and Announce’ Rule Violation and Remedy / Invited Error

Facts: Mr. Butler contended that the police violated the rule that mandates police ‘knock and announce’ their presence prior to executing a search warrant. The prosecution contended regardless of whether the police violated the knock and announce rule, pursuant to Hudson v. Michigan, 547 U.S. 586 (2006), there is no remedy in criminal law.

Issue: What is the a remedy for a defendant in criminal case when police violate the ‘knock and announce’ rule?

Held: There is none. If the Colorado court is applying Federal law, then the court must follow Federal and Supreme Court precedent. Federal law only provides for a civil remedy for violations of the knock and announce rule.

Reasoning: The CofA pointed out early on in a footnote that, “We express no opinion concerning Butler’s rights, if any, under the Colorado Constitution because Butler’s argument is limited to the Fourth Amendment.” The CofA then went on to say neither party addressed Hudson v. Michigan, 547 U.S. 586 (2006), where the Supreme Court held that civil remedies provide a sufficient deterrent for violating the ‘knock and announce’ rule, and thusthe exclusionary rule does not apply. Thereafter, the CofA declined to address the issue because Mr. Butler did not have any remedies under Federal law. Mr. Butler never raised the issue specifically under Colorado law. The Colorado Supreme Court, in People v. Gifford, 782 P.2d 795 (Colo. 1989), reached the opposite conclusion of Hudson. In Gifford, the Colorado Supreme held suppression is an appropriate remedy for violating the knock and announce rule.

Issue: Whether the defense can appeal an instruction it agreed to during trial?

Held: No.

Reasoning: The CofA held that expressly acquiescing to an instruction and then appealing any alleged error caused by the instruction amounts to invited error. Thus, the CofA hinted in dicta, that the defense cannot appeal any ‘invited error’, unless the defense is raising ‘oversight or incompetence’.

People v. Padilla-Lopez            Restitution and the Definition of ‘Victim’ 

Facts: A third party deals dope to an undercover, pansy-ass, whiny-ass cop in Ms. Padilla-Lopez’s home. Police subsequently execute a warrant on Ms. Padilla-Lopez’s home. Cops find 1 ½ grams of methamphetamine, 4.4 grams of methylphenidate, baggies, scales, pipes and hypodermic needles. The police also get the Department of Human Services (DHS) involved, and DHS files a Dependency and Neglect case against Ms. Padilla-Lopez. Ms. Lopez pled to misdemeanors, including misdemeanor child abuse. Ms. Padilla-Lopez agreed to pay all restitution in the case as part of the plea. DHS then claimed the mantle of victimhood, and sought $19,295.14 in restitution from Ms. Padilla-Lopez for the placement costs of her kids.

Issue: Whether DHS qualifies as a victim under the restitution statute, C.R.S. § 18-1.3-602?

Held:  No.

Reasoning: The Court of Appeals simply looked at the elements of child abuse, and found, unlike cases of welfare fraud or actually stealing from a government agency, DHS is not a victim of child abuse. The CofA reasoned that the costs incurred by DHS were incidental to its duties.

Colorado Court of Appeals decisions 7-8-10

Colorado Court of Appeals decisions 7-8-10

People v. Harland            C.R.E Rule 403 and ‘DNA Databases’ / Sufficiency of the Evidence

Facts: Little girl and her younger brother decide to host a garage sale when their parents left them home alone. Mr. Harland kindly waltzes up, looks around, gets directions, and asks for a drink. The little girl goes inside to get a drink for the stranger, Mr. Harland. Mr. Harland kindly follows her inside and sexually assaults her. The younger brother witnesses some of the assault. According to the opinion, the girl described her assailant in great detail, but super stellar police work could not him. However, Champ left DNA on the little girl, her clothes, and other evidence. At some point the prosecution ran the DNA through two databases, and hit upon Mr. Harland. The defense moved to in limine the mention of any “DNA database” because the jury will assume prior criminality. The lab tech made no mention of how the DNA samples in the database were obtained his testimony.

Issue: Whether the trial court abused its discretion in denying the defense motion in limine to bar any mention of “DNA database”?

Held: No.

Reasoning: Well, the CofA reasoned, because the way the testimony came out, the jury did not know how the sample in the database were collected.

2nd Issue: Whether there was insufficient evidence to convict?

Reasoning: Quoting the CofA, “Here, defendant's DNA was found on J.E.'s  undergarments and on tissues located inside J.E.'s home, places it was extremely unlikely to be if defendant was not the perpetrator because J.E. did not

know defendant and he had not previously been in J.E.'s home. And, contrary to defendant's assertion, the People presented other evidence proving defendant was the perpetrator. J.E. provided the police with a detailed physical description of the assailant. She described him as a white male with brown hair and a short

beard, five feet eight inches to five feet ten inches tall, and with a tattoo on his left arm of a bear with balloons and tattoos on his legs. She was also able to give an approximate weight. Defendant matched each of these descriptors when he was arrested.”

People v. Reeves            Possession and Weight of Actual Controlled Substance / Burden Shifting

Lab Tech extrordinaire testifies that the single pill of oxycodone weighed exactly 1.03 grams. However, the lab monkey also testified that the pill does contain fillers and substances other than oxycodone.

Issue: Whether the instruction that contained the language ‘more than one gram of any material, compound, mixture, or preparation that contains any quantity of a Schedule II controlled substance’ allowed the jury to convict Mr. Reeves of possession more than one gram despite the fact the oxycodone in the single pill amount to less than one gram?

Held: No problem.

Reasoning: The Court went to great lengths to justify this opinion, but essentially, the Court relied on the statute containing the language, “more than one gram of a material compound, mixture or preparation that contained Oxycodone, a Schedule II controlled substance; in violation of section 18-18-405(1), 2(a)(I)(A).”

Burden Shifting: The CofA held the prosecution, in rebuttal closing, did not shift the burden by pointing out the defense did not bring in any prescriptions for the drugs. The CofA reasoned because the defense hinted Mr. Reeves might have had a prescription, the prosecution rightly pointed out, well, champ, where is it?  Oops. I suspect the defense lawyer wishes she/he chose wiser words. Better yet, a good lawyer would simply call the doctor who provided the script, or admit some prescription records, or as a last resort, simply put on the client to testify that he had a prescription. However, if the defense lawyer knew no prescription existed, hinting that there might be a prescription is begging to be grieved. Further, not getting the actual prescription records, if those records existed, may just be malpractice. In a prescription fraud trial I had, I simply had the client refresh her memory with her own prescriptions. I never sought to admit the prescriptions. The jury found my client not guilty, and the refreshing bit proved to them there was a prescription. 

Colorado Court of Appeals decisions 6-24-10

People v. Frye             Prosecution Appeals

Synopsis: In 1973, the state charged Mr. Frye with murdering his wife. However, the trial court back then dismissed because the prosecution could not go forward. Some decades later, in 2006, Mr. Frye’s sister told police that Mr. Frye confessed to murdering his wife to their mother. Of course, mom died prior to the sister testifying or disclosing the confession. The prosecution moved to admit the hearsay under the residual clause of hearsay rule. The trial court found the circumstances surrounding the hearsay to be unreliable, and denied admission of the statements by the mother via the sister. The prosecution then moved to dismiss the case, and appealed the trial court’s evidentiary decision.

Holding: The Court of Appeals held the trial court’s ruling denying admission of the hearsay statement was not a final disposition of the case, and dismissed the appeal.

Reasoning: The Court of Appeals reasoned that the prosecution’s actions amounted to nolle prosequi. The CofA stated simply, “ ‘A nolle prosequi only means that the state is not prepared to go forward with the prosecution of the criminal charge.’ When granted by the trial court, ‘[a] nolle prosequi order is not the final disposition of a criminal case, but leaves the matter in the same condition as before the charges were filed.’ ” (citations omitted).

People v. Price            Suicide Attempt and Mistrial / Right to Testify and Structural Error / Competency of the Defendant

Facts: The defense moved for mistrial after Mr. Price attempted suicide, and could not attend the rest of the trial. The trial court denied the motion for mistrial.

Held: The Court of Appeals held that the trial court did not abuse its discretion by denying the defense motion for mistrial. Further, the Court held the trial court did not abuse its discretion by finding that Mr. Price voluntarily absented himself from the proceedings.

Reasoning: The CofA pointed out, in its factual summary, that deputies admitted Mr. Price on a mental health hold – not upon some health issue related to the suicide attempt. The Court highlighted the stipulated instruction informing the jury that Mr. Price ‘voluntarily’ absented himself from the trial, but the absence should not affect their decision in any way. (Next time, let the Court figure out the solution, and do not help.) The CofA showed a clear lack of understanding surrounding suicide and suicide attempts by adopting the following reasoning,  “Thus, under Stephenson and the above-cited federal authorities, a defendant's absence may be deemed voluntary where the record establishes that he or she created the medical necessity in order to effect his or her absence from trial.” Lastly, the Court also found that the suicide attempt does not make Mr. Price incompetent to stand trial, and that Mr. Price’s inability to testify did not amount to a structural error.

Editorial: Curiously, if a mom on the Internet pretends to be a boyfriend of her daughter’s rival and the mom’s character breaks up with the rival, suddenly mom is responsible for the rival’s suicide. However, if someone is under the pressure of a jury trial and fearing the soul crushing life imprisonment penalty, suddenly any empathetic gestures evaporate. With anyone accused of a crime, the suicide attempt is viewed as some cynical ploy to delay the trial.

People v. Sanchez             Inconsistent Verdicts / Flight Instruction

Facts: The Court of Appeals recited the facts like this, “A group of about thirty people, including defendant, attended an overnight party at a campground. During the night, R.M. left his tent and noticed C.R. inside of his boss's Jeep and defendant standing outside the Jeep. R.M. approached the Jeep and saw C.R. holding a camera that belonged to R.M.'s boss. R.M. asked what C.R. and defendant were doing and told them to get out of the Jeep. R.M. was angry, pointed his finger at C.R. and defendant, and accused them of stealing. Defendant told R.M., “We're ready for this,” and, “You don't want to do this.” Defendant stabbed R.M. in the chest with a folding knife, and then stabbed S.P. and D.C., two onlookers, as D.C. fought C.R. R.M. and D.C. survived, but S.P. died from his stab wound.” The jury found Mr. Sanchez guilty of first-degree murder, attempted first-degree murder, heat of passion first-degree assault, and heat of passion second-degree assault. From the opinion, it appears the defense never asked for the jury to be instructed on second-degree murder with heat of passion or attempted second-degree murder with heat of passion.

Holding and Reasoning: The CofA held the convictions for attempted first degree murder and first degree assault with heat of passion on one victim were inconsistent, but the inconsistency did not require reversal. Moreover, the CofA held that the convictions for attempted first degree murder and heat of passion second degree assault were inconsistent, but again, the inconsistency did not require reversal. The Court cited People v. Frye, 898 P.2d 559 (Colo. 1995), which held, “that Colorado law does not generally require consistent verdict. However, the Frye court noted that if a jury returned verdicts convicting a defendant of two or more crimes, and the ‘the existence of an element of one of the crimes negates the existence of at necessary element of the other crime,’ ‘courts are generally uniform in their agreement that the verdicts are legally and logically inconsistent and should not be sustained.” The CofA found the existence of heat of passion did not negate any element of first-degree murder or attempted first-degree murder.

Lesson: If your theory is self-defense and heat of passion, submit second-degree murder with the heat of passion. Otherwise, your client will end up screwed like Mr. Sanchez.  Sounds like the jury would have convicted him of heat of passion second-degree murder and heat of passion attempted second-degree murder.

Flight Instruction: Generally, not advisable, but no abuse of discretion here in instructing the jury on flight. (Champ, after deciding to escalate a mere 1° criminal trespass into a 1° murder by stabbing folks when he got caught, ran and hid in a trailer.)

People v. Wilson             Restitution and the Statute of Limitations

The Court of Appeals held that when Ms. Wilson pled guilty to theft from 2002 onward, she waived any applicable rights under the statute of limitations. Essentially, the CofA went with the assumption that subsection (12) of §16-5-401, the Statute of Limitations, applies to plea bargains. Thus, pleading guilty waives any rights under the Statute of Limitations. Subsection (12) reads:

“The applicable period of limitations specified in subsection (1) of this section shall not apply to charges of offenses or delinquent acts brought to facilitate the disposition of a case, or to lesser included or non-included charges of offenses or delinquent acts given to the court or a jury at a trial on the merits, by the accused.”

Colorado Court of Appeals decisions 6-10-10

People v. Trujillo  Hearsay / 13-25-129

The Court of Appeals found that C.R.S. §13-25-129 (Child Hearsay Statute) allows for admission of hearsay statements from kids over 15.

People v. Roy  Time Served – 35(a) Motion or 35(c) Motion?

The Court of Appeals held any motion for additional credit time served falls under C.R.Crm.P Rule 35(a), not 35(c). Thus, the time bars contained in Rule 35(c) do not apply to motion for credit time served.

People v. Portillo  Lesser Included Offenses – Menacing Lesser Included of Attempted Extreme Indifference First Degree Murder?

The Court of Appeals held that because menacing requires proof of an element not contained in attempted extreme first-degree murder, menacing is not a lesser-included offense.

People v. Griffiths  Ability to Pay and Drug Surcharge / Res Gestae Evidence

The Court of Appeals held that because Ms. Griffiths did not claim at her sentencing that an 11-year DOC sentence would prevent her from paying the drug offender surcharge, the trial court did not abused its discretion in imposing the surcharge. Further, the Court also held that introduction of Ms. Griffiths physical appearance, scanners from her home, and a notebook did not violated the trial court’s order barring any evidence pursuant to 404(b).

People v. Emert  Advisement under Curtis and Possession of a Weapon by a Previous Offender

The Court of Appeals held that the Curtis advisement given by the trial court misled Mr. Emert into believing the only purpose of the previous felony was to impeach him. Moreover, the Court held that in a POWPO trial, the trial court must also advised the defendant that the prior felony will be used against him because the prior felony is an element of the crime of POWPO.

People v. Bloom  Summary Disposition of Appeal

The Court of Appeals held that Mr. Bloom did not have a right to appleal his sentence because the trial court sentenced Mr. Bloom within the range allowed by the plea bargain. The Court dismissed the appeal without an answer brief.

People v. Blackwell  Prosecutorial Misconduct by Threatening a Witness with Perjury / Fair Trial

The Court of Appeals came up with a totality of the circumstances test to determine if the prosecution, in threatening perjury charges, deprived Mr. Blackwell of a fair trial. Unsurprisingly, no, the prosecution’s threat did not undermine Mr. Blackwell’s right to a fair trial. The factors the Court of Appeal came up with:

(1) the manner in which the prosecutor raises the issue, including the warnings' extent and timing, the language employed, and whether the prosecutor communicated directly with the witness or through an attorney;

(2) the  prosecutor's basis in the record for believing the witness might lie;

(3) the warnings' effect on the witness's willingness to testify;

(4) whether the court attempted to remedy any misconduct; and

(5) whether the prosecutor capitalized on the witness's absence by directing the jury's attention to it during closing arguments.

People v. Alvarado-Juarez  Equal Protection - Extreme Indifference First Degree Murder and Reckless Manslaughter

The Court of Appeals held the Extreme Indifference statute did not deny Mr. Alvarado-Juarez equal protection “because there is a significant difference between the elements of extreme indifference murder and reckless manslaughter: extreme indifference murder requires proof of  ‘circumstances evidencing an attitude of universal malice manifesting extreme indifference to the value of human life generally.’” Whereas, the Court reasoned, reckless manslaughter does not contain the universal malice element.  The Court also found Colorado’s reasonable doubt instruction is fine thank you very much. Actually, of all the definitions, Colorado states the definition best.

Colorado Supreme Court decisions 6-28-10

Wend v. People         Prosecutorial Misconduct / Plain Error / Use of the word “lie”

Synopsis: Ms. Wend and the deceased did methamphetamine together, and the deceased let Ms. Wend live with him. To celebrate Christmas, the pair did some meth together. At some point, the deceased sought, demanded or threatened Ms. Wend to have sex with him, according to the defense theory. Ms. Wend, who previously expressed fear of the deceased to others, shot the deceased. Ms. Wend recruited another cohort to help her dump the body in a refrigerator in a dump outside Castle Rock. Cohort enters a plea deal, and he snitches on Ms. Wend. Police arrest Ms. Wend. During the interrogation, Ms. Wend went from knowing nothing, to blaming the cohort, to self-defense. Further, Ms. Wend acknowledges to the police during the interrogation that she lied to them. At trial, Ms. Wend asserted self-defense. During trial, Defense counsel admits client lied during interrogation. Prosecution weaves its entire case around the word lie in opening and closing. The defense does not object to the prosecution’s repeated characterization.

Issue: Did the prosecution commit plain error by repeatedly characterizing the defense as a lie?

Holding: Yes.

Reasoning: Every Justice, including the dissent, agreed that there is a “categorical prohibition on the use of the word lie and all its derivatives.” Thus, every justice agreed that the prosecution violated the categorical rule. The majority held the error amounted to plain error (plain error is the standard when defense counsel DOES NOT object). Justice Rice, writing for the majority, found although not “constitutional”, the error undermined the “basic fairness of the trial.” Thus, she reasoned, the error mandated reversal. Justice Eid wrote for herself and Justice Coates in dissent. Justice Eid reasoned that because defense counsel also used the word “lie” that the error did not amount to plain error.

Lesson: OBJECT if you hear the word lie out of anyone’s mouth, especially the prosecution. Further, DO NOT concede your client lied. It will invite the prosecution to adopt the language, and void any error on appeal.