Colorado Supreme Court 12-12-11 criminal law decision People v. Coates

People v. Coates             4th Amendment: Automobile  Searches - Search Incident to Arrest vs. Probable Cause

Facts: The police stopped the car in which Ms. Coates rode in the backseat. The police patted down the driver, claimed the 16 year-old 'consented' to the pat down (reason for the stop was a minor traffic offense), and supposedly found one pill of Xanax in the 16 year-old's pocket. After the discovery, the police ordered everyone out of the car, interrogated Ms. Coates, and searched both the passenger compartment and the trunk of the car. In the trunk, the police claimed to find a bottle of pills. Ms. Coates admitted to owning the car, but denied knowledge of the pills in the trunk. The defense moved to suppress all the evidence found in the trunk, and the trial court granted the motion. The trial court cited two bases for suppression. The trial court stated that the police possessed neither reasonable suspicion to search the trunk (search incident) nor probable cause to search the trunk for contraband. The prosecution appealed the order.

Issue: Whether the police, who found a pill of Xanax in the pocket of the driver, possessed probable cause to search the trunk?

Held: No.

Reasoning: As astonishing as the holding, Justice Coates wrote the decision with nary a dissenter.  First, the Court put to rest any fantasies cops and prosecutors have about using search incident to justify a general search of the entire car. The Court flat out stated in the beginning of its decision, "Because the evidence for which suppression was sought was not seized from the passenger compartment of the defendant’s vehicle, the search-incident-to-arrest exception could not justify its seizure under any circumstances." Arizona v. Gant, 556 U.S. 332, ---,129 S.Ct. 1710, 1719 (2009).

            The Court then held that ticketing the driver for driving without a license and finding a Xanax pill in the driver's pocket did not amount to probable cause to search the trunk of the car. 
Link to People v. Coates here

Colorado Court of Appeals - 12-8-11 criminal decision - People v. Poage

People v. Poage             Failing to De-Register as a Sex Offender

Facts: Mr. Poage got evicted from his home where he previously registered. Because he was homeless, he did not have any address to re-register. So, he never registered any address but his initial address. An Adams County Deputy with not enough to do, checks on the address, finds no one living there (because of the eviction), and the prosecution subsequently charged failing to register and failing to de-register. At a hearing where the defense asked for a bill of particulars, the prosecution opted to only proceed on failing to de-register. However, Mr. Poage testified that he never moved out of Adams County. Further, the Court of Appeals found that the prosecution never presented any evidence that Mr. Poage moved out of Adams County (Appeals panel - Judges Roman, Taubman, and Booras with Judge Roman writing the opinion). Nevertheless, the trial court denied the motion for judgment of acquittal, and the jury convicted Mr. Poage of failing to de-register. The Court of Appeals vacated the conviction.

Issue:  Whether the prosecution must show, under the de-registration section, that a person moved out of the jurisdiction?

Held: Yes.

Reasoning: The Court of Appeals read the de-registration, section C.R.S. 18-3-412.5 (1)(i) - “Failure to complete a cancellation of registration form and file the form with the local law enforcement agency of the jurisdiction in which the person will no longer reside,” - as any normal red blooded human being would – that jurisdiction does not mean house, home, or apartment. Jurisdiction in subsection (i) means out of the jurisdiction.  Thus, the Court of Appeals held that only when a person moves out of the jurisdiction, does the statute then require the person to de-register. Therefore, the Court of Appeals vacated Mr. Poage’s conviction, and case dismissed.

Adam Mueller represented Mr. Poage on appeal and Emily Lieberman represented the man in trial. Both did a helluva job.

Colorado Court of Appeals - 11-23-11 criminal decision - People v. Mosely

People v. Mosley                        Speedy Trial

Facts: A jury convicted Mr. Mosely of multiple counts of sexual assault on a child. A panel of the Court of Appeals reversed the conviction, and sent the case back to the trial court for a re-trial. When the trial court re-set the case for trial, the trail court set it beyond the six-month deadline from the mandate required by C.R.S. § 18-1-405(2). The trial court received the mandate on September 19, 2007, and thus, according to subsection 2, the trial must commence by March 19, 2007. However, the trial court continued the case for appearance of counsel to October 22 and 25, 2007. On October 29, 2077, Mr. Mosley waived his right to speedy trial. Based upon the waiver, the trial court determined that speedy ended on April 29, 2008, and re-set the trial on April 8, 2008. On March 31, 2008, the prosecution moved to continue the trial. Over the objection of the defense, the trial court granted the continuance, and moved the re-trial to June 17, 2008. The Court of Appeals noted over and over that defense counsel acquiesced to the application of the time exclusions found in C.R.S. § 18-1-405(6), even though the plain language of C.R.S. § 18-1-405(2) does not allow any exclusions of time from the six-month speedy trial period. Subsequent to the mistrial, defense counsel argued the explicit language of C.R.S. § 18-1-405(2) mandates dismissal – the first time defense counsel argued subsection 2 according to the Court of Appeals. The trial court agreed, and dismissed the case.

Issue: Whether the plain language of C.R.S. § 18-1-405(2) - “If trial results in conviction which is reversed on appeal, any new trial must be commenced within six months after the date of the receipt by the trial court of the mandate from the appellate court.” - is ambiguous?

Held: Inexplicitly, yes.

Reasoning: The Court found the language to be ambiguous because C.R.S. § 18-1-405(2) left the accused without a remedy if the trial court exceeded the six-month period required by statute. Thus, the Court claimed it needed to give meaning to the subsection, and in doing so, read all the exclusions of time found in C.R.S. § 18-1-405(6) into C.R.S. § 18-1-405(2). Thus, the Court of Appeals reversed the trial court's ruling, and reinstated the charges against Mr. Mosely. The Court completely avoided the jurisdiction issue – that the legislature did not use ambiguous language because the trial court loses jurisdiction if it does not hold the re-trial within six months. Instead, the Court re-wrote C.R.S. § 18-1-405(2) to be complicated and weaselly, and hence, identical to C.R.S. § 18-1-405(1). 


C.R.S. § 18-1-405(1) reads, “Except as otherwise provided in this section, if a defendant is not brought to trial on the issues raised by the complaint, information, or indictment within six months from the date of the entry of a plea of not guilty, he shall be discharged from custody if he has not been admitted to bail, and, whether in custody or on bail, the pending charges shall be dismissed, and the defendant shall not again be indicted, informed against, or committed for the same offense, or for another offense based upon the same act or series of acts arising out of the same criminal episode.” Thus, C.R.S. § 18-1-405(1) explicitly contains all the exclusions of time in C.R.S. § 18-1-405(6), which reads:

In computing the time within which a defendant shall be brought to trial as provided in subsection (1) of this

section, the following periods of time shall be excluded:

(a) Any period during which the defendant is incompetent to stand trial, or is unable to appear by reason of illness or physical disability, or is under observation or examination at any time after the issue of the defendant's mental condition, insanity, incompetency, or impaired mental condition is raised;

(b) The period of delay caused by an interlocutory appeal whether commenced by the defendant or by the prosecution;

(c) A reasonable period of delay when the defendant is joined for trial with a codefendant as to whom the time for trial has not run and there is good cause for not granting a severance;

(d) The period of delay resulting from the voluntary absence or unavailability of the defendant; however, a defendant shall be considered unavailable whenever his whereabouts are known but his presence for trial cannot be obtained, or he resists being returned to the state for trial;

(e) The period of delay caused by any mistrial, not to exceed three months for each mistrial;

(f) The period of any delay caused at the instance of the defendant;

(g) The period of delay not exceeding six months resulting from a continuance granted at the request of the prosecuting attorney, without the consent of the defendant, if:

(I) The continuance is granted because of the unavailability of evidence material to the state's case, when the prosecuting attorney has exercised due diligence to obtain such evidence and there are reasonable grounds to believe that this evidence will be available at the later date; or

(II) The continuance is granted to allow the prosecuting attorney additional time in felony cases to prepare the state's case and additional time is justified because of exceptional circumstances of the case and the court enters specific findings with respect to the justification;

(h) The period of delay between the new date set for trial following the expiration of the time periods excluded by paragraphs (a), (b), (c), (d), and (f) of this subsection (6), not to exceed three months;

(i) The period of delay between the filing of a motion pursuant to section 18-1-202(11) and any decision by the court regarding such motion, and if such decision by the court transfers the case to another county, the period of delay until the first appearance of all the parties in a court of appropriate jurisdiction in the county to which the case has been transferred, and in such event the provisions of subsection (7) of this section shall apply.

Colorado Court of Appeals 10-27-11- criminal decision - People v. Warrick

People v. Warrick     Police Booking Reports and Mittimus - Hearsay, Authentication and Confrontation Clause / Cops as Experts

Facts: Real simple: the trial court admitted the mittimus and booking reports in a possession of a weapon by a previous offender, and the cop testified to an arguable opinion.

Issue: Whether the trial court abused its discretion when it found that the public records to be sufficiently authenticated?

Held: No.

Reasoning:  CRE Rule 901 governs authentication. As the Court of Appeals stated, “Whether a proper foundation for authenticity has been established is a

matter within the sound discretion of the trial court, whose decision will not be disturbed absent an abuse of discretion. Accordingly, a trial court should allow physical evidence to be presented to the jury if a reasonable jury could decide the evidence is what its proponent claims it to be.” People v. Crespi, 155 P.3d 570, 573-74 (Colo.App.2006). First, the Court of Appeals, with conclusory reasoning, held that the booking reports qualify as public records under CRE Rule 902. Moreover, according to the Court of Appeals, to admit public records the proponent need only provide authentication. The certification from the records custodian on the booking reports provided all the authentication the Court of Appeals needed. Under CRE Rule 104(a), the trial court itself is not bound by the rules of evidence to determine authenticity. Thus, the trial court may rely on the certification on the documents despite the fact that the certification is clearly hearsay.

Issue: Whether the trial court abused its discretion when it admitted the mittimus of a prior conviction to be admitted despite the lack of attestation by the signer?

Held: No.

Reasoning: Under CRE Rule 902(1), if the mittimus bears the seal and a signature of attestation, the record qualifies as self-authenticating. Here, the mittimus bore the seal, signature, and certification according to the Court of Appeals. Thus, the trial court did not abuse its discretion in admitting the mittimus.

Issue: Whether the trial court abused its discretion in admitting booking reports and mittimus under CRE Rule 803(8)?

Held: No.

Reasoning: Under CRE Rule 803(8)(A), the mittimus and booking records a) raise no trustworthiness issues and b) each sets forth activities of the District Court and the Sheriff’s Department respectively. Thus, under Rule 803(8)(A), the trial court did not abuse its discretion. Further, Rule 803(8)(B), specifically prohibits admission of police records. However, the Court of Appeals followed the federal courts, and reasoned the booking records to be admissible because police routinely prepare the ‘non-adversarial’ booking reports.

Issue: Whether admission of the booking reports and mitt violated the Confrontation Clause?

Held: No.

Reasoning: Simply put, the Court of Appeals held that the mittimus and booking reports did not amount to ‘testimonial’ evidence under Crawford v. Washington, 541 U.S. 36 (2004).

Issue: Whether the cop testified as an expert?

Held: No.

Reasoning: The Court assumed what the cop offered qualified as an opinion, but then found that opinion admissible under CRE Rule 701 – Lay Witness Opinion. 

Colorado Court of Appeals 10-27-11 - criminal decision - People v. King

People v. King            Strip Searches and Search Warrants / No Knock Execution of a Warrant

Facts: Police claim Mr. King dealt drugs, and the judge signed a warrant. SWAT Team douche bags broke into Mr. King’s room unannounced to execute a warrant. The warrant did not expressly authorize a no-knock execution. Nevertheless, the subsequent search turned up no evidence of drug dealing. The police found only paraphernalia – two pipes, a box of baggies, and a copper scrubber. As part of the warrant, the SWAT Team conducted a strip search of Mr. King. Unfortunately for Mr. King, he had a baggie in his rectum that contained 20 smaller baggies of cocaine.

Issue: Whether exigent circumstances existed to justify the no-knock execution of the warrant?

Held: Yes.

Reasoning: The Court of Appeals reasoned exigent circumstances existed because Mr. King dealt drugs before, drugs could be easily destroyed, and the motel room had a bathroom in which drugs could be easily disposed.

Issue:  Whether ordering Mr. King, who stated was not wearing any underwear, to drop his trousers amounted to a strip search?

Held:  Yes.

Reasoning: The Court of Appeals looked to a Colorado statute to determine whether the police subjected Mr. King to a strip search. The Court stated, “Colorado criminal statutes define a strip search as 'having an arrested person remove or arrange some or all of his or her clothing so as to permit a visual inspection of the genitals, buttocks, anus, or female breasts of such person.' " C.R.S. § 16-3-405(2). The Court of Appeals reasoned the search became a strip search when the police forced Mr. King to drop his trousers after he informed them he was not wearing underwear.

Issue: Whether the strip search of Mr. King’s person went beyond the scope of the search warrant?

Held: Yes.

Reasoning: The Court of Appeals found this issue, whether search warrants include strip searches, to be one of first impression in Colorado. Nevertheless, the Court of Appeals reasoned, “A search of a person may range from a pat-down to a full search of the person to a more intrusive strip search. Strip searches are different in nature, quality, and intrusiveness from full searches of a person's body. Safford Unified School Dist. No. 1 v. Redding, ––– U.S. ––––, ––––, 129 S.Ct. 2633, 2641, 174 L.Ed.2d 354 (2009).”  Thus, the Court of Appeals held that a search warrant does NOT include a strip search. Further, according to the Court's holding, in order to justify a strip search, the police must possess “specific facts to support a reasonable suspicion that a particular person has secreted contraband beneath his or her clothes or in a body cavity.” Quoting People v. Mothersell, 14 N.Y.3d 358, 900 N.Y.S.2d 715, 926 N.E.2d 1219, 1226 (N.Y.2010).

Colorado Court of Appeals 10-13-11 Criminal Law Decision - People v. Ortega

People v. Ortega            35(c) / F3 Child Abuse / Extraordinary Risk Crimes / Crimes of Violence

Facts: Mr. Ortega pled to a class 3 felony child abuse, which normally carries a sentence of 10-32 years in prison with 5 years of parole. However, Mr. Ortega entered into a plea agreement with a stipulated range of 15 to 20 years in prison. The trial court sentenced Mr. Ortega to 19 years. Subsequently, Mr. Ortega filed a 35(c) claiming the trial court illegally sentenced him. The trial court summarily denied his motion, and Mr. Ortega filed a pro se appeal.

Issue: Whether the trial court imposed an illegal sentence upon Mr. Ortega?

Held: No.

Reasoning: With Judge Taubman as author and Judges Roman and Booras concurring, the Court of Appeals reasoned that because Mr. Ortega pled to an extraordinary risk crime that required a crime of violence sentencing range of 10-32 years, the trial court did not impose an illegal sentence. Further, the sentence of 19 years imposed by the trial court fell within the range agreed upon by Mr. Ortega. Finally, Mr. Ortega signed and initialed the plea agreement evincing that he voluntarily and knowing entered the plea. 

Colorado Court of Appeals 10-13-11 Criminal Law Decision - People v. Berry

People v. Berry             ‘Knowingly’ / Sufficiency of the Evidence / Retaliation Against a Judge

Facts: In the throes of alcohol infused depression and misery, Mr. Berry seeks out a friend to have him drive him to the emergency room. A mental health worker at the emergency room counsels Mr. Berry. The mental health worker did not tell Berry she would report threats to any targets. Nevertheless, the mental health worker told Mr. Berry’s ex, her lawyer, and his divorce case judge that Mr. Berry made threats to them. The mental health worker then committed Mr. Berry on an emergency basis. The police arrested Mr. Berry for allegedly retaliating against the judge. Further, the prosecution charged, the trial court allowed, and a jury convicted Mr. Berry of retaliating against a judge. Mr. Berry argued that he made idle threats and did not know the mental health worker would report any of the threats, including to the judge.

Issue: Whether the prosecution presented sufficient evidence that Mr. Berry retaliated against the judge?

Held: No.

Reasoning: The statute §18-8-615, reads:

“An individual commits retaliation against a judge by means of a credible threat ... if the individual knowingly makes the credible threat:

(I) Directly to the judge; or

(II) To another person:

(A) If the individual intended that the communication would be relayed to the judge; or

(B) If the other person is required by statute or ethical rule to report the communication to the judge.” (Quoting the opinion).

            With Judge Criswell writing the decision and Judges Furman and Richman concurring, the Court of Appeals reasoned because Mr. Berry did not know that the mental health worker had a mandatory duty to snitch him off, he did not knowingly retaliate against the judge. 

Colorado Court of Appeals 10-13-11 Criminal Law Decision - People v. Grassi

People v. Grassi            Probable Cause  & Blood Draws / Fellow Officer Rule

Facts: Previously, a jury convicted Mr. Grassi Vehicular Homicide, manslaughter, DUI and DUI – excessive alcohol. He appealed, and the Court of Appeals remanded the case to determine whether the police had probable cause to draw blood from the unconscious Mr. Grassi. On remand, the trial court held a hearing, and determined that the state patrol did possess enough facts to establish probable cause for the blood draw from Mr. Grassi.

Issue: Whether the state patrol had probable cause to draw blood samples from Mr. Grassi?

Held: Yes.

Reasoning: The Court of Appeals, in an opinion authored by Judge Terry, distinguished this case from People v. Reynolds, 895 P.2d 1059 (Colo.1995), and People v. Roybal, 655 P.2d 410 (Colo.1982). Here, the Court claimed more existed than merely an accident and an odor of alcohol. The Court pointed to the following: no yaw marks existed indicating Mr. Grassi did not apply the brakes; the car went some 200 ft. off of the roadway; the car had no damage or problem that caused the accident; the road was clear, dry, and nothing existed in the roadway to cause the accident; troopers opined that Mr. Grassi's car traveled along the “fog line” (white line) which, they continued, was indicative of someone driving under the influence; Mr. Grassi “still had a strong odor of alcohol three hours after the accident.”

Issue: Whether the “fellow officer rule” applies when the officer taking the blood draw did not speak with the officer who may have information to establish probable cause?

Held: Sure.

Reasoning: If someone, at some time, who is employed by the law enforcement agency possesses sufficient information to establish probable cause, that knowledge, the Court of Appeals theory goes, may be imputed throughout the entire law enforcement agency. Further, now, according to the Court, you can add all the bits of information from each officer to establish, as a whole, the agency possessed probable cause.  The Court quoted People v. Arias, 159 P.3d 134 (Colo. 2007), “The fellow officer rule provides that a law enforcement officer who does not personally possess a sufficient basis to make an arrest nevertheless may do so if (1) he acts at the direction or as a result of communications with another officer, and (2) the police as a whole possess a sufficient basis to make the arrest.” Arias, 159 P.3d at 139. Hence, the officer who ordered the draw of Mr. Grassi’s blood had no clue what the accident reconstructionist would find at the time he ordered a third officer to go to the hospital to draw Mr. Grassi’s blood. Nevertheless, taken as a whole, according to the Court, the state patrol possessed probable cause to order a blood draw.

Colorado Court of Appeals 10-13-11 Criminal Law Decision - People v. Harmon

People v. Harmon            Juror Impartiality

Facts: The prosecution charged and a jury convicted Mr. Harmon of F3 reckless/knowing child abuse resulting in serious bodily injury. During opening statement, the defense hinted that at most negligence occurred, and in closing argued for acquittal of both the charged crime and the lesser negligent child abuse. During the first day of trial, a juror sent out a note which read, “I wish to ask why it is necessary to spend all this time calling witnesses and going round & round on points and facts that both sides agreed to in their opening remarks. It would seem that the disagreement is only over what level of guilt is indicated. Can not  [sic] the rest be stipulated? Can we not focus on the distinctions of motive and actions?” Instead of dismissing the juror or declaring a mistrial, as the defense requested, the trial court did nothing.

Issue: Was the trial court under some duty to correct the misapprehension of the juror regarding the guilt of Mr. Harmon prior to jury deliberations?

Held: Yes.

Reasoning: The Court of Appeals held that when the trial court did absolutely nothing to correct the juror, the trial court deprived Mr. Harmon of his right to due process and a fair trial. Thus, the Court of Appeals reversed Mr. Harmon’s conviction, and remanded the case for re-trial. The Court of Appeals gave a non-exhaustive list of actions the trial court might have taken:

Without intending to provide an exhaustive list

as to what corrective action the trial court might

have taken here, we note that the court might have

(1) spoken to the jurors, (2) advised them that it

had received a note suggesting possible confusion

regarding Harmon's opening statement, (3) reminded

them that Harmon had asserted that he was not

guilty, that he must be presumed innocent, and that

the burden of proof remained on the prosecution,

and (4) inquired as to whether any of them would

have difficulty affording Harmon, until the end of

trial, the presumption of innocence and requiring

the prosecution to prove Harmon's guilt beyond a

reasonable doubt. The court also could have reminded

the jurors that the opening statements of counsel are

not evidence. See CJI–Crim. 1:03 (1983). And the

court could have reiterated its direction to the jury that

it must consider all of the evidence produced during

the trial and determine the facts based on that evidence.

Alternatively, the court could have identified and

dismissed the juror who sent the note and substituted

one of the two alternate jurors. In the circumstances

presented here, we conclude that the failure to take any

such corrective action was error.

Colorado Court of Appeals 10-13-11 Criminal Law Decision - People v. Mendoza

People v. Mendoza            Sexually Violent Predator            

Facts: The prosecution charged Mr. Mendoza with an F4 sexual assault on a child, five counts of F3 sexual assault on a child by a person in a position of trust, and an F3 sexual assault on a child as part of a pattern. Mr. Mendoza had a good defense lawyer who got the prosecution to offer and him to take the F5 - attempted sexual assault on a child. Subsequent to the plea, Mr. Mendoza completed a presentence investigation and sex offender evaluation. The evaluation came back designating Mr. Mendoza a sexually violent predator. Mr. Mendoza challenged the SVP statute under various constitutional grounds.

Issue: Whether the SVP statute violates Equal Protection or Due Process?

Held: No.

Reasoning: Essentially, because the Court of Appeals bought the fiction that sex offenses get under reported, the SORS score, which accounted for the fictional under reporting, did not violate Mr. Mendoza’s rights  (fiction because the “research”,based upon political agendas and prosecutorial fantasies, claims to know what is unknowable, that SEX CRIMES GET UNDERREPORTED!!! the capitalization and exclamation make it so!).  Essentially, the Court of Appeals adopted the HANDBOOK:

Because violent crimes are almost twice as likely to

be reported to law enforcement compared to sexual

crimes, and because research has found that only

43 percent of reported sex crimes against adults

result in an arrest, and fewer still in prosecution

and conviction, the [Division's Office of Research

and Statistics] uses violent arrest as the recidivism

measure in sex offender studies. The use of violent

crime as an outcome measure is a reasonable proxy,

as these crimes have a significant impact on public

safety and, in the case of sex offenders, may have a

sexual component or motivation.

Due Process: The Court of Appeals did not care to actually look at how unfair, inaccurate, suspect, and wildly subjective the SVP designation was in Colorado, and thus, the Court of Appeals denied Mr. Mendoza’s procedural due process claim. Accordingly, the Court of Appeals affirmed the trial court’s finding Mr. Mendoza as a sexually violent offender.

Colorado Court of Appeals 10-13-11 Criminal Law Decision - People v. Cordova

People v. Cordova            Harmless Error vs. Abuse of Discretion review

Facts: A jury convicted Mr. Cordova of attempted murder. The assailant cut the complaining witnesses during a fight outside a bar between Mr. Cordova along with his friend and the two complaining witnesses. An arrest warrant issued, and some eleven days later, the police stop Mr. Cordova, search him, and search his SUV.  During the searches of Mr. Cordova and his SUV, the police recovered some knives. Later, at a motions hearing, the defense conceded the police did not violate the Fourth Amendment in either search. However, defense counsel then moved to exclude the knives. The defense argued because the prosecution conducted no forensic testing on the knives to discern whether any of the seized knives cut either of the complaining witnesses, admission of the knives represented irrelevant, prejudicial, inadmissible character evidence. However, according to the Court of Appeals, the motion upon which raised the issue did not specifically cite “due process”. During trial, Mr. Cordova pinned the knife cutting on his friend. He lost, and on appeal, the defense argued admission of the knives violated Mr. Cordova’s due process because the admission denied him a fair trial.

Issue: Whether harmless error or abuse of discretion is the appropriate review standard?

Held: Abuse of discretion.

Reasoning: On appeal, the defense couched the issued under due process requiring the more exacting constitutional harmless error analysis. However, the Court of Appeals reasoned that because the defense could neither point to where in the record Mr. Cordova raised the issue under due process nor did the defense motion cite due process, the Court could only analyze the issue under the more lenient abuse of discretion standard applied to all evidentiary rulings.  Of course, then, the Court of Appeals reasoned that the trial court did not abuse its discretion because a knife on Mr. Cordova's person and a boatload of knives in his truck provided all the relevance the Court of Appeals needed.

Colorado Court of Appeals 10-13-11 Criminal Law Decision - People v. Holt

People v. Holt            C.R.E. Rule 606(b) / Extraneous Information and Jury Verdicts           

Facts: An idiotic juror opined during deliberations that anyone who gets convicted of vehicular eluding gets a “slap on the wrist”, and that he/she/it knew this from personal experience. Further, during deliberations, several jurors either read or someone told them about the dictionary definition of  “elude”. The trial court held a hearing pursuant to Rule 606(b), and vacated the conviction. Carol Chambers, the DA in Arapahoe, appealed.

Issues: Whether the extraneous information prejudiced Mr. Holt and compromised the verdict?

Held: No.

Reasoning: Under Rule 606(b) the trial court’s inquiry into the validity of the jury verdict is limited to three situations:

(1) Whether extraneous prejudicial information was improperly brought to the jurors' attention,

(2) Whether any outside influence was improperly brought to bear upon any juror, or

(3) Whether there was a mistake in entering the verdict onto the verdict form.

            Moreover, the rule states, “A juror's affidavit or evidence of any statement by the juror may not be received on a matter about which the juror would be precluded from testifying.”

            The Court of Appeals first dealt with the juror “slap on the wrist” opinion. The Court found the juror’s statement did not amount to extraneous information because it was within the juror’s personal experience. The Court ignores the fact that most jurors would have no such knowledge, that the juror was factually wrong, and that this “personal knowledge” dealt with sentencing, which is wholly irrelevant as to whether Mr. Holt committed a crime. Further, its not hard to figure how this went – the juror made the statement because someone else was holding out for either a lesser or a not guilty. Thus, the juror reached to this inaccurate statement to persuade another juror or jurors to convict. Nevertheless, the Court of Appeals, closes its eyes to reason, and finds this information is not extraneous, and thus not prejudicial.  

            Secondly, the Court of Appeals held that reading or hearing the dictionary definition of elude also did not amount to extraneous prejudicial information.  The prosecution conceded the information qualified as extraneous, but that the dictionary definition did not prejudice Mr. Holt. The Court of Appeals reasoned because the defense did not provide the definition given to the jurors during deliberations, the defense did not carry its burden to prove prejudice. Thus, the Court of Appeals re-instated Mr. Holt’s convictions.

            The seminal case regarding Rule 606(b) is probably now People v. Harlan 109 P.3d 616 (2005). In Harlan, during the penalty phase of a death penalty case, a juror brought a bible into the deliberation room. Further, the juror possibly influenced other jurors. Specifically, the juror sought guidance from the bible in deciding whether to impose a life or death sentence for Mr. Harlan, and told at least one other juror that the Bible commands death. The trial court and subsequently, the Colorado Supreme Court held that extraneous information prejudiced Mr. Harlan, and compromised the verdict. The Colorado Supreme Court vacated the death sentence.

Colorado Supreme Court decision 10-24-11 People v. Gabriesheski

People v. Gabriesheski            Attorney-Client Privilege / Social Worker Privilege

Facts: Typical scenario: teenage girl accuses step-dad of sexual assault; Mom thinks her daughter made up the false allegations to get back at herself and the step-dad for their attempts to raise the kid. Social Services got involved, and filed a D&N with Mom as respondent. During the pendency of the cases, the Mother and the teenager argue about the lies the teenager’s told. During this argument, the teenager confesses that she lied about the allegations. As we can never let go of a good, juicy, false accusation, the DA wanted the GAL and social worker to testify to show that Mom coerced and pressured the teenager to recant. (An argument hardly presents the hallmarks of ‘coercion’).

The defense filed two motions in limine – one barring introduction of the teenager’s statements to the GAL from the D&N under both Rule 1.6 of the Professional Rules of conduct and C.R.S. § 13-90-107 - Who May Not Testify Without Consent. The second motion in limine sought to bar the mother’s statements to the social worker under C.R.S. § 19-3-207 - Inadmissibility of Certain Evidence. A ballsy District Court granted both motions. The DA then claimed they could not proceed, and the Court dismissed the case. The DA then sought appeal of the Court’s orders barring introduction of the aforementioned statements. The Court of Appeals, with equal courage, affirmed the trial court. Moreover, regarding the statements to the social worker, the Court of Appeals went one better, and found the Social Worker Privilege under §13-90-107(1)(g), also supported the trial court’s ruling.

Issue: Whether Attorney/Client privilege or Rule 1.6 (confidentiality) barred the GAL from testifying about the teenager’s statements in the step-dad’s criminal case?

Held: No.

Reasoning: While admitting that the only people who can qualify to be GALs are licensed attorneys and that those GALs must perform typical duties of a lawyer in the role of GAL (e.g. examination of witnesses), the Court held the attorney/client privilege does not exist with a GAL. Simply put, the GAL is not sought to advise or counsel the client, but according to the Court, stands to present the best interests of the child. Justice Coats, unsurprisingly, authored the decision, and Justice Martinez dissented with Chief Justice Bender joining the dissent.

Issue: Whether §19-3-207 or §13-90-107(1)(g) barred the social worker from testifying about the Mother’s statements in the step-dad’s criminal case?

Held: No.

Reasoning: The Court reversed the Court of Appeals, and found the trial court did not make sufficient findings to support exclusion of the testimony under either §19-3-207 or §13-90-107(1)(g). Under §19-3-207, the Court stated that to justify exclusion, the trial court must find that the respondent made statements in compliance with court treatment orders.  Under §13-90-107, the Court punted and reversed the Court of Appeals because the trial court never addressed exclusion of the testimony under this statute.

SIDE COMMENT: The DA claimed she could not proceed without these statements from the GAL and social worker. However, at most, these statements represent rebuttal evidence, bolstering evidence, or extraneous evidence about a recanting witness. Nothing barred the prosecution in its case-in-chief from going forth, and impeaching the teenager with her original accusations - should the teen actually recant on the stand. Further, nothing prevented the DA from being a good trial lawyer and examining the teenager and the mother about the circumstances surrounding the supposed coercion or pressure to recant. Yet, the Colorado Supreme Court reached down to rule upon seemingly innocuous, extraneous issue in a weak case to protect and save an incompetent DA who obviously cannot litigate a simple speeding case. However, no one complains about this kind of judicial activism.

Colorado Supreme Court decisions 9-12-11 People v. Lewis

People v. Lewis            2˚ Kidnapping with Sexual Assault and Sexual Assault  / Double Jeopardy and Multiple Punishments

Facts: A jury convicted Mr. Lewis of three counts of kidnapping and three counts of sexual assault for three separate complaining witnesses. The sexual assault convictions for each kidnapping conviction upped the kidnapping conviction from a class four felony to a class two felony. To be clear, the DA alleged only one sexual assault on each kidnapping victim. The trial court sentenced Mr. Lewis separately on each sexual assault and kidnapping charge, and ran each kidnapping conviction consecutive to the sexual assault conviction – despite that the facts for the sexual assault and the sexual assault in the kidnapping were exactly the same set of facts.

Issue:  Whether the separate convictions and sentences for sexual assault and kidnapping violate the Double Jeopardy Clauses?

Held: No.

Reasoning: The Colorado Supreme Court held that because the statute and elements defining kidnapping did not include all the elements of the sexual assault of which the jury convicted Mr. Lewis, the trial court did not err in imposing separate sentences. Simply stated, Colorado uses the simple elements test to determine whether an offense can be classified as lesser-included; thus, if the greater offense contains every element of the lesser offense, then the lesser offense is classified as lesser-included. Further, the Court reasoned only lesser-included offenses merge for sentencing purposes under the Double Jeopardy Clauses.

The Court spent some time discussing other jurisdictions treatment of lesser-included offenses. One approach, the same facts approach, does not compare the elements by rote, but holds that the offenses would merge if the same facts proven at trial established the offenses simultaneously. The Court, with Justice Coates – former DA - writing for the majority, found the analysis under the same-facts approach too taxing, and declined to adopt it in Colorado.

Therefore, in Mr. Lewis’s case, because the kidnapping statute did not delimitate a specific sexual assault, but included any sexual assault, the sexual assault and kidnapping did not merge. Thus, the trial court did not violate the Double Jeopardy Clauses by sentencing Mr. Lewis separately on each offense.

Colorado Supreme Court decisions 9-12-11 People v. Pickering

People v. Pickering                   Self-Defense and Reckless Manslaughter

Facts: A jury found Mr. Pickering not guilty of second-degree murder, but found him guilty of manslaughter. Mr. Pickering ran self-defense at trial. The Court of Appeals reversed, and held the trial court shifted the burden when it instructed the jury on how self-defense and the manslaughter charge related to each other.

Issue: Whether the trial court shifted the burden to the defense when it gave the following instruction to the jury, “the people do not bear the burden of proving beyond a reasonable doubt that the defendant did not act in self-defense with respect to the reckless manslaughter charge.”

Held:  No.

Reasoning:  Justice Rice wrote the majority opinion, and really did nothing more than state the following in her reasoning:

“The General Assembly addressed the issues raised in Fink by enacting section 18–1–704(4). 4 The first clause of section 18–1–704(4) codifies Fink in part, requiring trial courts, in accordance with the United States Supreme Court's holding in Martin v. Ohio, 480 U.S. 228, 233–34, 107 S.Ct. 1098, 94 L.Ed.2d 267 (1987), to permit defendants accused of crimes to which self-defense is not an affirmative defense—i.e., those involving recklessness, extreme indifference, or criminal negligence—to nevertheless present evidence of self-defense. The second and third clauses abrogate Fink to a limited extent by requiring trial courts to instruct the jury in such cases regarding the law of self-defense and to explain to the jury that it may consider evidence of self-defense in determining whether a defendant acted recklessly or with extreme indifference or with criminal negligence. Finally, the fourth clause, at issue here, clarifies that the self-defense law instruction required in such cases is not an affirmative defense instruction and that the prosecution does not bear the burden of disproving

self-defense.”

Justice Martinez, with Bender and Hobbs dissented. In Justice Martinez’s view, the instruction shifted the burden and misled the jury. Justice Martinez wrote:

The majority does not require that trial courts give this instruction, and neither does the statute. Section 18–1–704(4) requires trial courts to: (1) allow defendants to present evidence of self-defense; (2) give a “self-defense law instruction” where evidence of self-defense is presented; and (3) inform the jury that it may consider self-defense evidence “in determining whether the defendant acted recklessly, with extreme indifference, or in a criminally negligent manner.” In contrast, although the statute states the prosecution has no burden to disprove self-defense, it does not require that juries be so informed: “[T]he self-defense law instruction shall not be an affirmative defense instruction and the prosecution attorney shall not have the burden of disproving self-defense.”

(citations omitted).

Colorado Court of Appeals 9-15-11 Criminal Law Decision

People v. Gibbons           Modified Allen Instruction /  Time Fuse Instruction

Facts: The jury came back and said it was deadlocked. The trial court read the modified Allen instruction to the jury and told them to deliberate for another hour. The trial court stated in an hour it would check and see where the jury was at at that time. The jury then convicted Mr. Gibbons of theft by receiving and second-degree perjury.

Issue: Whether the hour time check stated by the trial court amounted to an impermissible ‘time-fuse’ instruction?
Held: No.

Reasoning: The Court of Appeals reasoned that by telling the jurors that it would check back with them in an hour, the trial court did not coerce the jury into its verdict. Unlike Allen v. People (where the trial court told the jury 15 more minutes and it was going to declare a mistrial), that the trial court did not give the jury a coercive time fuse instruction.

Colorado Court of Appeals 9-15-11 Criminal Law Decisions

People v. DeWitt            Right To Bear Arms / Affirmative Defenses / Possession of a Weapon by a Previous Offender

Facts: The prosecution charged Mr. DeWitt with possession of a weapon by a previous offender. The trial court in gun toting, military loving, red-neck hugging Colorado Springs denied Mr. Dewitt an instruction on the Right to Bear Arms as an affirmative defense. Mr. DeWitt testified that he carried the guns for self-defense.

Issue: Whether the trial court erred in denying Mr. DeWitt an instruction on the Right to Bear Arms as an affirmative defense to possession of a weapon by a previous offender?

Held: Yes.

Reasoning: A) The Court of Appeals found that the Right to Bear Arms under the Constitution is indeed a defense; B) Mr. DeWitt’s testimony provided more than the scintilla of evidence needed to justify instructing the jury on the Constitutional affirmative defense of Right to Bear Arms; C) This holding is completely consistent with People v. Barger, 732 P.2d 1225, 1226 (Colo.App.1986). In Barger, the Court held the offer of proof insufficient to justify the instruction. Here, Mr. DeWitt testified. Nice work trial attorney, whomever you may be.

Colorado Court of Appeals 9-1-11 criminal law decision

People v. Boles            Internet Luring / Overbreadth and Vague

Facts: A jury convicted Mr. Boles of attempted Internet Sexual Exploitation of a Child, Internet Luring, and Obscenity. Because cops ain’t got enough to do, they conjure up crap like these internet cases. In these cases, police 'heroically' pretend, lie, and fraudulently assume the identity of some underage girl in an ADULT chat room – not the Disney chat room, not the Nickelodeon chat room, and not even the MTV chat room – an adult chat room where everyone pretends to be something they are not (do those cable channels really have chat rooms?) Further, these scam artist cops either entrap or ensnare folks into sending pictures of themselves nude, encourage the men to meet the fake underage girl, or encourage the men to prompt the girls to send pictures. Mr. Boles ran the defense of role playing - meaning that he knew the person was not really a teenage hussy, but instead an adult. Unfortunately, the detective claimed and a jury bought that Mr. Boles was not role-playing, and convicted him. Mr. Boles challenged the constitutionality of both the Internet Luring statute and the Obscenity statute.

Issue: Whether Colorado’s Internet Luring statute is overbroad, and thus unconstitutional?

Held: No.

Reasoning: The Court of Appeals cited the rule on overbroad First Amendment challenges by rote, “In a facial challenge asserting that a statute is unconstitutional under the First Amendment, however, a showing that the law is overbroad may be sufficient to invalidate its enforcement. Nevertheless, a statute is unconstitutionally overbroad only if it includes within its proscriptions a substantial amount of constitutionally protected speech.”

Thwarting the overbreadth challenge, the Court of Appeals wrote, “Here, because section 18–3–306(1) requires an actor, in connection with a description of explicit sexual conduct, to make a statement ‘persuading or inviting’ the minor to meet, it does not authorize criminal charges based solely on speech.”

Issue: Whether as applied to Mr. Boles, the Internet Luring statute is unconstitutional in that he made no obscene statements to the fake kid?

Held: No.

Reasoning: Simply put, the Court of Appeals found that the obscenity standard under the First Amendment is lessened when it involves some clown pretending to be a kid. Thus, fake kid plus description to the fake kid about explicit sexual conduct establishes obscene language unprotected under the First Amendment.

Issue: Whether the Internet Luring statute is vague, and thus unconstitutional?

Held: No.

Reasoning: Mr. Boles argued that the statutory language “in connection with that description” made the statute vague. The Court of Appeals disagreed, “The grammatical construction of this language is that the statement can be under the guise of ‘any purpose,’ so long as it is made ‘in connection with’ the description of explicit sexual conduct. Therefore, contrary to defendant's argument, a person of common intelligence would comprehend what conduct is prohibited by the statute and thus, it is not unconstitutionally vague.”

Issue: Whether the Internet Luring statute violated the dormant Commerce Clause?

Held: Nope.

Reasoning: First you gotta hand it to the appellate lawyer, Andrew T. Bethart, for not only coming up a Commerce Clause challenge, but jn general, for putting the Court of Appeals through the grinder and forcing it to address these arguments. The rule for a dormant Commerce Clause challenge, as stated by the Court of Appeals, “The negative or dormant implication of the Commerce Clause prohibits the states, through taxation or regulation, from discriminating against or unduly burdening interstate commerce.” And, unfortunately, Colorado’s Internet Luring statute does not discriminate against or unduly burned interstate commerce because the Court could not “ascertain any legitimate commerce that would be derived from these communications.”

Issue: Whether the Obscenity statute is unconstitutional?

Held: No.

Reasoning: “Here, in our view, a person of common intelligence, when reading ‘promote’ in the context of the rest of the statute and in light of the definition provided by the legislature, could readily understand its meaning and application” Thus, the statute is not vague.

Issue: Whether the evidence was sufficient to convict Mr. Boles attempted Internet Exploitation of a Child?

Held: Yes.

Reasoning: Despite this being an adult chat room, the Court found that because Mr. Boles did not specify he was role playing with the fake kid, that he was told many times the age of the fake teenager, and because Mr. Boles asked her to touch herself, the evidence was indeed sufficient.

Colorado Court of Appeals forfeiture decision from 8-18-11 People v. $ 11,200.00 U.S. Currency

People v. $ 11,200.00 U.S. Currency            Forfeiture

Facts: The police searched Mr. Strand’s home, seized drugs, and the $11,200.00. At a subsequent trial on drug charges, a jury convicted Mr. Strand, but the Court of Appeals reversed. There, the Court of Appeals held that the police violated Mr. Strand’s rights under the Fourth Amendment when they seized the money and drugs from his home (of course, no cajones dictates that the opinion went unpublished). Subsequently, the prosecution filed a motion to dismiss the criminal case. Parallel to the criminal case, the prosecution sought forfeiture of the $11,200.00. The trial court granted the motion, forfeited the money, and the state claims then to have spent the money. The trial court based its forfeiture ruling in part on Mr. Strand’s conviction in the underlying criminal case. However, after the reversal and dismissal of his case, Mr. Strand sought the $11,200.00 back from the government. The trial court granted Mr. Strand’s motion, and the state appealed.

Issue: Whether, under C.R.C.P. Rule 60, the trial court had the authority to reverse a forfeiture order?

Held: Yes.

Reasoning: The Court of Appeals looked Rule 60(4) of the Colorado Rules of Civil Procedure, which states: “the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application…” Specifically, the Court of Appeals found because the trial court based its ruling in part on the conviction, subsequent reversal of that conviction requires the state return the money. Further, the Court of Appeals followed One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 702 (1965); and United States v. One Hundred Forty–Nine Thousand Four Hundred Forty–Two & 43/100 Dollars ($149,442.43), 965 F.2d 868, 872 (10th Cir.1992) to hold that the exclusionary rule applies to forfeiture proceedings.

            Other specious arguments by the Attorney General and the government that the Court of Appeals rejected: that because they already spent the money, the state should not be required to return the money; that Mr. Strand did not say he wanted the money back after the trial court granted the forfeiture motion; that Mr. Strand waited an unreasonably long time (3 months) to file his motion to return the money.

Colorado Court of Appeals criminal law decision 8-18-11 People v. Alvarado

People v. Alvarado             Complicity and Supplemental Instructions / Presentence Report and Aggravated Sentences

Facts: A jury convicted Mr. Alvarado of two counts of aggravated robbery and one count of kidnapping. During jury deliberations, the jury posed three questions to the trial court regarding complicity. After the trial court referred the jury back to the original instructions, the jury asked: “On complicity—does someone have to have knowledge of the intent prior to the act being committed or can the person watching the act happen be complicit by observing the act happen know [sic] that at the time the act is occurring that they [sic] are intending to do the act[?]”

The trial court answered with: “The defendant must have had knowledge of the other person's intent to commit all or part of the crime either before or at the time the other person committed all or part of the crime.”

Further, during sentencing, the trial court relied upon the presentence investigation report to justify its sentence. Specifically, that Mr. Alvarado had a pending juvenile case during the commission of these offenses.

Issue: Whether the trial court impermissibly lessened the prosecution’s burden with the supplement instruction on complicity?

Held: No

Reasoning: The Court of Appeals simply found no abuse of discretion. The Court found that the trial court should provide a supplemental instruction unless:

(1) the jury may be adequately informed by directing its attention to some portion of the original instructions;

(2) the request concerns matters not in evidence or questions which do not pertain to the law of the case; or 

(3) the request would call upon the judge to express an opinion upon factual matters that the jury should determine.

Mostly because the jury could not follow the reasonable doubt instruction and continued to machinate about how to convict, the jury kept inquiring about complicity – seemingly, hoping for direction to convict. The trial court provided it with the above instruction. The Court of Appeals held because the defense did not point to any authority that the instruction lessened the prosecution’s burden of proof, the trial court did not abuse its discretion (pretending of course that there would be any on anything so specific such as this instruction). Clearly, the case hinged on when the Mr. Alvarado realized the co-defendant started robbing the place. Apparently, the jury decided that because Mr. Alvarado did not thwart or prevent the co-defendant from carrying through once he saw what was happening, Mr. Alvarado then became a complicitor to the crimes. Utterly unfair.

Issue: Whether the trial court impermissibly relied upon facts in the PSI when sentencing Mr. Alvarado?

Held: No.

Reasoning: The Court of Appeals really did not analyze the issue very well. The Court forgot that the tribunal is an unbiased referee – not a prosecutor. Nevertheless, the Court of Appeals held that because the trial court could easily verify that Mr. Alvarado had a juvenile case pending during the commission of these offenses, the trial court did not abuse its discretion in relying on such facts from the PSI. Contrast that holding with People v. Isaaks, 133 P.3d 1190 (Colo. 2006), where the Colorado Supreme Court held that the trial court abused its discretion relying on facts in the PSI that were not admitted by Mr. Isaaks. Thus, here the trial court acted like a prosecutor, did not make the prosecution prove that the juvenile case was actually pending during the commission of this offense, and Mr. Alvarado never admitted that the juvenile case was pending at the time. The Court of Appeals confused prior convictions with proof of the prior convictions. Unfortunately, the trial court can take into account any prior conviction at sentencing. However, the prosecution still had the burden of proving any prior conviction or pending case. Isaaks, supra. Thus, because Mr. Alvarado never admitted to the pending juvenile case, the trial court abused its discretion. However, the Court of Appeals disagreed, and thankfully, the point is moot because the trial court still sentenced Mr. Alvarado within the presumptive range.

Colorado Court of Appeals - Contempt Reversal for Defense Lawyer in People v. Jones

People v. Jones - re: Sommer Spector            Contempt

To put it succinctly, the trial judge in People v. Jones did not like the aggressive, thorough, and zealous defense of Mr. Jones by Sommer Spector (where the Court of Appeals agreed with Ms. Spector and reversed Mr. Jones’ conviction on 404(b) here: http://simslaw.blogspot.com/2011/08/colorado-court-of-appeals-criminal-law_7675.html) The trial judge went from one incident to a whole host of others that allegedly occurred in front of him and other judges – like a spurned spouse losing an argument. To prove his vindictiveness, the trial judge would not recuse himself from the contempt proceedings against Ms. Spector, refused to let her speak, conducted a kangaroo contempt proceeding, and prior to laying down the sentence on Ms. Spector, the trial judge filed a grievance against her. Further, from what the Court of Appeals highlighted, the trial judge’s behavior is quite unbecoming of someone we must address as ‘Your Honor’. Justifiably, the Court of Appeals slapped down the trial judge. After eviscerating every possible reason the trial judge had for holding Ms. Spector in contempt, the Court of Appeals felt it necessary to state, "To be clear, we do not question the trial judge's integrity. Nor do we question the veracity of his statements denying any ill will toward Ms. Spector. The record here does not clearly show personal enmity on the trial judge's part toward Ms. Spector. But under the circumstances here, assignment of any contempt charge to another judge is necessary to assure that the proceeding both comports with and appears to comport with notions of fundamental fairness deeply rooted in our system of justice.” Hahahaha…