Colorado Court of Appeals decisions 8-19-10

People v. Warner             Search Warrants

Facts: Mr. Warner challenged the search warrant affidavit used to justify a search of his home. The police based the affidavit mostly upon an informant’s statements. However, the police took the informant to Mr. Warner’s residence, watched the informant go inside Mr. Warner’s home, watched the informant come back out, and tell them that Mr. Warner would sell him, the informant, some methamphetamine. A defense investigator interviewed the informant, and the informant either contradicted or flat out denied making the statements the police claim the informant made in the search warrant affidavit. The defense investigator filed an affidavit with the motion to suppress.

Law: To attack a search warrant affidavit:

(1)  Establish a good faith basis in fact to challenge the warrant. The defense establishes the good faith basis by filing an affidavit or affidavits with a motion to suppress;

(2)  The motion must state, with specificity, the precise statements being challenged in the search warrant affidavit.

(3)  To get a hearing, the defense must establish by a preponderance of evidence that the search warrant affidavit contained statements where the affiant intentionally made false statements or the affiant made statements with a reckless disregard for the truth.

(4)  Burden at hearing: ‘We must uphold the validity of a warrant if the search warrant affidavit creates a substantial basis for concluding that probable cause exists. Any doubts must be resolved in favor of the issuing judge's determination.”

Held: The defense established enough to get a hearing. However, the defense did not establish enough to undermine the presumption of validity granted to the search warrant and supporting affidavit.

Analysis: The defense called no witnesses at the hearing, but instead relied solely upon the affidavits submitted in support of the motion to suppress. The CofA found, “It is one thing for a trial court to accept an affidavit to establish the existence of a dispute regarding the truth of the allegations in the search warrant affidavit. It is quite another to accept the same affidavit for the purpose of resolving that dispute. See, e.g., Doug Sears Consulting, Inc. v. ATS Services, Inc., 752 So.2d 668, 670 (Fla.Dist.Ct.App.2000) (affidavit not generally admissible at evidentiary hearing because it is not subject to cross-examination). Even in circumstances where affidavits are otherwise admissible, an affidavit not based on the affiant's personal knowledge will not suffice.” Also, the CofA found probable cause could be corroborated by non-criminal activity.

Tip: Call the affiant as a witness at the hearing. The defense may have had good reason not to call informant as a witness at the hearing. However, the defense also did not call the investigator who interviewed the informant to testify. Who knows if the defense would have won, but both the trial court and CofA summarily denied the motion to suppress when the defense did not call any witnesses.

People v. Stark           Vehicular Homicide / Prosecutorial Misconduct / Burden Shifting

The Court of Appeals found no error in the statement “It could just as easily have been [the witness] who was lying on that slab in the coroner's office,” because the evidence actually supported the argument (witness almost got hit by Mr. Stark). Unfortunately, that was the only statement the defense preserved through an objection. Thereafter, in its opinion, the CofA found the others, if any improper, did not amount to plain error.

Further, the CofA found the prosecution did misstate the law on proximate cause when the prosecutor said, “Even if the phantom car hit,” the defendant’s car. However, the CofA also found the prosecution and instructions rectified the error. The CofA wrote, “(1) the prosecutor also told the jury during closing argument that it had to prove Strock “is the person who set in motion the actions that caused the death” of the victim and “if he had not gotten in that car, it wouldn't have happened”; (2) the jury was instructed that to convict Strock of vehicular homicide it must determine that Strock was driving

while intoxicated and that his conduct was a proximate cause of the victim's death; (3) the jury was properly instructed regarding the definition of proximate

cause; and (4) both attorneys referred to that definition during closing arguments.”

The CofA also held the prosecution did not commit any error, plain or otherwise, in commenting upon the lack of evidence that supported the defense’s theory of the case.

Colorado Court of Appeals decisions 8-5-10

People v. Medina            Felony Murder, Complicity, Burglary / Statutory Construction / Instructions           

Synopsis: Mr. Medina’s girlfriend claims the deceased raped her friend.  Mr. Medina and friends go over to deceased’s apartment to settle the score. When the deceased identifies himself, snitch witness claims Mr. Medina shoots the deceased. An independent witness describes someone like snitch not Mr. Medina to be the shooter. The jury did not convict of 1^st Degree Murder After Deliberation, and according to the Court of Appeals, the jury found Mr. Medina did not shoot the deceased.

Issue: Whether burglary with the predicate crime of assault can qualify as predicate burglary for felony murder.

Held: Yes. The Court reasoned ANY burglary may serve as the predicate offense for felony murder.

Issue: Whether the stock Colorado jury instruction on complicity created reversible error?

Held: No. The Court held the complicity instruction, although error, did not require a new trial. See Bogdanov v. People, 941 P.2d 247 (Colo. 1997).

Issue: Can the prosecution pursue inconsistent theories of prosecution?

Held: Yes. The Court wrote, “Due process does not preclude a prosecutor from advancing alternative theories upon which a jury properly could convict one defendant in one trial. See Anne Bowen Poulin, Prosecutorial Inconsistency, Estoppel and Due Process: Making the Prosecution Get Its Story Straight, 89 Cal. L.Rev. 1423, 1429 (2001)(“[i]ssues of inconsistency [that] arise within a single trial ... do not threaten the basic fairness of the process” because “the fact finder can weigh inconsistent alternatives in the context of the whole case”).”

The CofA also quoted from Bradshaw v. Stumpf, 545 U.S. 175 (2005), where the U.S. Supreme Court held, “prosecutorial inconsistencies” as to which of two men shot the victim did not warrant vacating the first defendant's guilty plea, because “the precise identity of the triggerman was immaterial to [his] conviction for aggravated murder,” but did warrant further review of defendant's challenge to his death sentence. Id. at 186-88; compare id. at 189-90 (Souter, J., with Ginsburg, J., concurring) (discussing possible due process limits on inconsistent positions in different cases) with id. At 190 (Thomas, J., with Scalia, J., concurring) (“This Court has never hinted, much less held, that the Due Process Clause prevents a State from prosecuting defendants based on inconsistent theories.”).

Issue: Whether the prosecution presented perjured testimony?

Held: No. The Court reasoned that because all it had was the cold transcript of the trial, it cold not determine whether any testimony was in fact perjured, and hinted the claim sounds like a 35(c) issue.

People v. Perry            Removal from Sex Offender Registry

The CofA held, if a person successfully completed a deferred sentence or adjudication, then the person can apply to be removed from the Sex Offender Registry.