January 31, 2011

Colorado Court of Appeals decision 12-23-10

People v. Rabes            SAC / Warrants – Probable Cause / Rule 410 – Right to Allocution / Challenges for Cause

Synopsis:  While living in Nebraska, AOL.Com reported to the police that Mr. Rabes downloaded images of child porn. The police got a warrant, searched Mr. Rabes’ computer, and found images of him and a four-year old girl, M.V.. The police went to the ex-wife, and she identified the little girl, and Mr. Rabes, and the location of the incident (former home theirs in Colorado Springs). Subsequently, the prosecution charged Mr. Rabes with SAC, SAC-Position of Trust, two counts of felony sexual exploitation of a child, and a misdemeanor count of sexual exploitation of a minor. The trial court sentenced him to: 10 years on the sexual assaults concurrent with each other; 12 years on the felony exploitation charges, consecutive to each other and consecutive to the sex assault sentences; and, 24 months on the misdemeanor exploitation, concurrent. Federal authorities charged Mr. Rabes also charged Mr. Rabes with offenses relating to the images. Colorado Springs charged him with the conduct in the pictures and the pictures. Prior to trial in the Springs, Mr. Rabes pled in Federal Court to the counts involving the pictures. During the plea colloquy, Mr. Rabes made two confessions that the prosecution in the Springs case admitted in its case-in-chief: one, that he enticed M.V. to engage in sexually explicit conduct, and two, he admitted the existence of 32 photos of him and M.V. engaged in sexual conduct.

Issue:  Whether describing just the premises to be searched and the language, “depict[ing] children in a sexually explicit manner, which would include visual representation or image of a person or portion of the nude human body,” amounts to probable cause?
Held:             Yes, the Court wrote that a better practice would be an affidavit that specifically described the images. However, the Court continued, because the cop saw the pictures prior to the search, it gave the general language more weight, and thus the affidavit established probable cause.
Issue:             Whether the trial court erred in admitting the statements Mr. Rabes made during the plea colloquy in Federal Court?
Held: No. Despite defense counsel at trial making numerous objections at trial, because counsel did not specifically state Rule 410 (statements made pursuant to a plea bargain) in his objection, the Court of Appeals deemed the issue as not preserved for appellate purposes, and thus, the Court determined the standard of review to be plain error – dooming any real chance of a meaningful review for Mr. Rabes. Nevertheless, Rule 410 specifically excludes statements to the court. Thus, Mr. Rabes loses either way. Further, the CofA held that Mr. Rabes made the statements during the plea colloquy, and not in allocution for sentencing.
Issue: Whether two jurors who expressed skepticism at their ability to decide on proof and not just on the inflammatory pictures amounted to bias against Mr. Rabes?
Held: The CofA held the trial court did not abuse its discretion in denying the defense’s challenge of the two jurors. One juror stated, “If you're not going to tell me it's a fake picture to defend your client, I'm going to assume it's a real picture and I'm going to feel the same way… If the Prosecution is going to present evidence, I'm assuming it's actual evidence. If you're not going to try and prove that it's not real, I'm still going to assume that it's actual evidence. I have to take that into consideration. I figure if in all actuality, if it's not real, you're going to do whatever you can to debunk their evidence. If you don't, I'm assuming that's actual evidence. I will take that into consideration in my decision.”

            The other juror’s statements which did not amount to challenge for cause:
[Defense Counsel]: Let's say, let's pretend during this trial
you see a picture of what looks like child pornography, but
you don't know if it's real or if it's fake, but you feel so much
disgust by looking at the image. Do you think there's a danger
that you might overlook the judge's rule about whose job it is
to do the proving in this case and you might say it's close, but
I'm going to find him guilty because I don't like the picture?
[Juror H]: I think it would be hard for me to separate those
things, but I would like to think that I'd be able to do that.
[Defense Counsel]: Is there a danger with you that based upon
what's in the photograph you might find somebody guilty
even if there's not proof that it's a real photograph.
*6 [Juror H]: Yes.

(I would just note, I have left challenges here, and lost – too many times to count. Per Ann Roan, follow-up with a question that the juror has a substantial doubt she/he could be fair in this case, pat that bunny, then close the cave).

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