April 29, 2011

Colorado Supreme Court criminal law decisions 4-25-11

People v. Ray     Rule 35(c) / Witness Protection Programs - Protective Orders and Disclosure of Protected Witness Addresses To Defense
Facts: A jury convicted Mr. Ray of killing a witness and another person, and imposed the death penalty. Mr. Ray’s 35(c) counsel sought and the trial court granted access to the addresses of witnesses under a protective order and other witnesses in a “witness protection program.”  The prosecution, Carol Chambers and crew, cried foul to the Colorado Supreme Court
Issue: Whether the prosecution’s interest in protecting witnesses outweighed Mr. Ray’s interest in locating and interviewing the witnesses?
Held: Yes, the prosecution wins.
Reasoning: Rule:
Generally, the rule is that a defendant's right to obtain a witness' address is in aid of the defendant's right of confrontation. See People ex rel. Dunbar v. District Court, 177 Colo. 429, 432, 494 P.2d 841, 843 (1972). The defendant's right of confrontation, however, is not without limitations. See id. In Dunbar, this court first recognized a personal safety exception to the accused's right of confrontation. Id. We held in Dunbar that once a witness has made a showing that his safety would be endangered if he discloses his residence, then the defendant has a duty to show some materiality in questioning the witness as to his residence. Id. at 433, 494 P.2d at 844. Thus, in determining whether the witness must disclose his address, the trial court must balance the witness' right to personal safety against the defendant's right of confrontation. See id. at 434, 494 P.2d at 844.
People v. Dist. Court, 933 P.2d 22, 25 (Colo. 1997).
Here, in Mr. Ray’s case, the Colorado Supreme Court put great emphasis on the fact that a jury convicted Mr. Ray of killing a witness. The Court attempts to present this case as worse than District Court. However, in District Court, the prosecution previously placed the witnesses in a witness protection program. At that point, the defendant or a confederate of the defendant allegedly threatened the witnesses. On that basis the Colorado Supreme Court  prevented disclosure of witness addresses to the defense. Further, in Mr. Ray's case, the Colorado Supreme Court put great emphasis on the fact the witnesses the defense sought to interview and investigate did not wish to be interviewed by anyone from the defense. Of course, the prosecution, the people who want to kill Mr. Ray and want to thwart any successful 35(c) ruling, provided this information themselves - not through any witness testimony. Lastly, the Court that found in a 35(c) post-conviction setting, the interest in interviewing the neighbors and such, did not provide the material basis needed to disclose the location of the witnesses – unlike perhaps preparation for a jury trial where placing the witnesses in each's setting could provide exculpatory evidence.

People v. Glick          Fourth Amendment / Plain View Exception / Warrantless Search
Facts: Sometime before sunrise the cops in keystone fashion cannot find the 911 hang-up call address. This being Pueblo, where cops got nothing better to do, the police start banging on doors and canvassing the neighborhood for the crank 911 caller. Eventually they show up on Mr. Glick’s porch, wake him up, and ask to interview his girlfriend and another occupant. Mr. Glick tells the cops to stay outside. However, the cops claim that Mr. Glick left the door open, which prompted their snooping. The police shined a flashlight on a table and allegedly saw a white rock and green leafy stuff. The police claim what they saw was narcotics. When he came back, the police claim that Mr. Glick stopped over at the table and picked up the white rock. Of course, the police entered Mr. Glick’s home at this point - without a warrant, without permission, and against the express wishes of Mr. Glick. To justify their actions, the police claimed they thought Mr. Glick would attempt to destroy the evidence. The prosecution provided no actual evidence that Mr. Glick intended or attempted to destroy the evidence, just officer hopes and dreams.  Based upon this warrantless entry and search, the trial court suppressed all the evidence.
Issue: Whether an officer’s unsubstantiated belief about possible destruction of evidence allegedly seen in pain view can justify a warrantless entry into a home?
Held: Yes.
Reasoning: To prove the police can seize evidence in plain view, the prosecution must show: “(1) the initial intrusion onto the premises was legitimate; (2) the police had a reasonable belief that the evidence seized was incriminating; and (3) the police had a lawful right of access to the object seized.”
            In an opinion by Justice Bender the Colorado Supreme Court held:
Initial Intrusion: because the police could have seen the alleged narcotics in daylight, the Court held that shining a flashlight through the front door of the home did not convert this into a search.  Interestingly, the trial court found that because the home is the most protected area under the constitution, this situation is not at all similar to shining a flashlight into a car where there is a lesser degree of privacy. Thus, the trial court found an officer is not permitted to shine a flashlight into a home. The Colorado Supreme Court repudiated the trial court on this point, and found no problem with an officer shining a light into a home despite no prior suspicions of illegal activity.
Reasonable Belief of Incriminating Evidence: the police believed that they saw narcotics.
Lawful Right of Access to the Evidence Seized: exigent circumstances provided the police with lawful access because the police believed Mr. Glick would attempt to destroy the evidence of narcotics.
Therefore, despite no prior reasonable suspicion, despite no warrant, despite no consent, despite an express refusal to allow entry into the home in the early morning, despite the keystone cop canvassing of homes based upon a 911 hang-up, the Court reversed the trial court’s suppression order – all under the guise of plain view. 

April 25, 2011

Colorado Supreme Court criminal law decisions 4-18-11

People v. Walters                        Consensual Encounter
Facts: The Brighton Police got a call from a snitch who claimed to have just purchased meth from Mr. Walters. The snitch offered to make a phone call to Mr. Walters, the police obliged, and the snitch arranged a deal for the K-Mart parking lot in Brighton. A Brighton cop, Officer Portillo, shows up at the parking lot, sees Mr. Walters at his car with the hood open. Prior to contacting Mr. Walters, some Brighton Sergeant told Officer Portillo that Mr. Walters most likely had drugs in his car. Upon contacting Mr. Walters, Officer Portillo, according to the opinion, asked Mr. Walters if he needed assistance and then asked to do a pat down on Mr. Walters and search his car. The opinion goes to lengths to explain the non-threatening language and tone the officer used. Mr. Walters allegedly consented to the pat down and search of his car by saying, “Go ahead I do not want to get into any trouble.”  Unfortunately, the cop claimed to find a baggie of meth during the search of the car. The trial court found the whole encounter a pretext to stop, arrest and search, and thus, suppressed all the evidence.
Issue: Whether the officer with ulterior motives nevertheless conducted a consensual encounter?
Held: Yes.
Reasoning: The Court ignored anything that might lead it to consider this to be a stop, and stated:
When Officer Portillo contacted the defendant in the Kmart parking lot, he did not activate his patrol car's lights or sirens. Officer Portillo approached the defendant in a nonthreatening manner by asking him if he was having car trouble and needed assistance. Throughout the encounter, Officer Portillo used a conversational tone of voice, stood five to ten feet away from the defendant, and did not display or gesture toward his weapon. Officer Portillo did not take the defendant's identification card. Although a second officer arrived during the encounter, that officer stood off to the side and did not intervene in the encounter. Furthermore, Officer Portillo asked, but did not order, the defendant to submit to a pat down and to the search of his vehicle. Officer Portillo never made a display of force or authority that would indicate that the obligation to comply was greater than the obligation an innocent citizen would normally feel to cooperate with the police.

The Colorado Supreme Court (along with many other courts) misstates when an officer’s subjective motivations may be irrelevant. The Court stated flatly that the subjective intentions of the officers is irrelevant to a Fourth Amendment analysis, and the Court cites Whren v. United States, 517 U.S. 806, 813, 116 S. Ct. 1769, 1774, 135 L. Ed. 2d 89 (1996). However the exact quote from that Scalia authored opinion only relates to probable cause – not the Fourth Amendment as a whole. Justice Scalia wrote for the majority, “We think these cases foreclose any argument that the constitutional reasonableness of traffic stops depends on the actual motivations of the individual officers involved. We of course agree with petitioners that the Constitution prohibits selective enforcement of the law based on considerations such as race. But the constitutional basis for objecting to intentionally discriminatory application of laws is the Equal Protection Clause, not the Fourth Amendment.  Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.Id. Thus, the U.S. Supreme Court held that if an officer has probable cause, the officer’s subjective intentions to stop or arrest are irrelevant. Here, that was precisely the problem the Colorado Supreme Court ignored – the cops had but a snitch witness, and neither probable cause nor reasonable suspicion. Plus, clearly by just the statement the officers admit Mr. Walters made “I do not want to get into any trouble” clearly showed Mr. Walters did not voluntarily, knowingly or intelligently consent to a pat down or search of his car. Nevertheless, the Colorado Supreme Court reversed the trial court’s suppression order.

People v. Brant                         Plain Feel Doctrine
Facts: Cops stopped the jeep in which Ms. Brant rode for a broken taillight. The driver came back under revocation. As the cops walk back to the jeep, they claimed Ms. Brant made some furtive gestures and put something under the seat. Of course, the police claim their safety may have been at risk due to Ms. Brant’s actions and both the trial court and Colorado Supreme Court bought this reason. The police then told Ms. Brant to get out of the car when they patted her down. After the pat-down, the police searched of the passenger compartment where Ms. Brant sat. The police looked under the seat, and found a glove. Upon finding the glove, the cop started feeling the glove. The cop claimed to have felt something he suspected to be drug paraphernalia – a pipe. Based upon what the cop felt, he then emptied the contents of the glove – lo-and-behold, a pipe and a baggie fall out. The trial court thought the whole search of the glove to be what it was – B.S. – and suppressed the evidence gained from the search of the glove.
Issue: Whether an officer may continue to search based upon plain feel when he does not suspect a weapon but evidence of a crime – in this case a pipe?
Held: Yes.
Reasoning: Magical words – “Officer Safety” – once a cop utters these apparently sacred words, any constitutional infringement will always be forgiven. Here, officer safety prompted the seizure of Ms. Brant because she shoved something under the car seat. Officer safety then justified a pat-down search of Ms. Brant. Officer safety also justified a search of the passenger compartment of the jeep. Lastly, in a place where no deadly weapon could or would be – officer safety justified a “pat-down” search of a cloth glove. Thus, under the plain feel doctrine the officer could search the contents of the glove because he had a reasonable suspicion that the gloved contained drug paraphernalia.

April 15, 2011

Deportable Crimes under 8 U.S.C.A. § 1227 (Deportable Aliens)

Controlled Substances
(1)  Any conviction relating to a schedule I, II, III, IV, or V controlled substance will make a person deportable;
(2)  Any ‘drug abuser’ or ‘addict’ is deportable.

Crimes of Moral Turpitude: (Moral Turpitude means, “Generally, crimes are deemed to be offenses of moral turpitude if they are base, vile, or depraved-if they offend society's most fundamental values, or shock society's conscience. Fraudulent offenses, however, are so classified simply by virtue of their fraudulent nature.” Navarro-Lopez v. Gonzales, 503 F.3d 1063, 1074 (9th Cir. 2007)(Reinhardt concurring in part)):
(1)  any 2 moral turpitude convictions makes a person deportable, regardless of possible sentence;
(2)  a single conviction for moral turpitude will make a person deportable if the sentence can be 1 year or longer.

Domestic Violence Convictions - if the crime qualified as a ‘crime of violence’, then the person is deportable. Title 18 U.S.C.A. § 16 which defines ‘crime of violence’ as: 
(1) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or;
(2)  any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.
(see Cornell Law: http://bit.ly/lcRm6f or FindLaw: http://bit.ly/jFjcnp)

Violation of Protection Orders
(1) If the person violated “the portion of a protection order that involves protection against credible threats of violence repeated harassment, or bodily injury to the person or persons for whom the protection order was issued is deportable,” that the violation makes the person deportable.
(2) Thus, NOT the no alcohol or the eat your peas an vegetables conditions of restraining orders which judges and prosecutors use ensnare people into a violation.

Stalking, Child Abuse, Child Neglect, Child Abandonment - any conviction for stalking, child abuse, child neglect, or child abandonment will make a person deportable.

Aggravated Felony Conviction - a conviction for any “aggravated felony” as defined under 8 U.S.C.A. § 1101(a)(43), will make a person deportable - 21 possible convictions listed under subsection 43 qualify as aggravated felonies. 
(43) The term "aggravated felony" means:
(A) murder, rape, or sexual abuse of a minor;
(B) illicit trafficking in a controlled substance (as defined in section 802 of title 21), including a drug trafficking crime (as defined in section 924 (c) of title 18);
 (C) illicit trafficking in firearms or destructive devices (as defined in section 921 of title 18) or in explosive materials (as defined in section 841(c) of that title);
(D) an offense described in section 1956 of title 18 (relating to laundering of monetary instruments) or section 1957 of that title (relating to engaging in monetary transactions in property derived from specific unlawful activity) if the amount of the funds exceeded $10,000;
(E) an offense described in
(i)section 842 (h) or (i) of title 18, or section 844(d), (e), (f), (g), (h), or (i) of that title (relating to explosive materials offenses);
(ii) section 922 (g)(1), (2), (3), (4), or (5), (j), (n), (o), (p), or (r) or 924 (b)or (h) of title 18 (relating to firearms offenses); or
(iii) section 5861 of title 26 (relating to firearms offenses);
(F) a crime of violence (as defined in section 16 of title 18, but not including a purely political offense) for which the term of imprisonment at [5] least one year; 
(G) a theft offense (including receipt of stolen property) or burglary offense for which the term of imprisonment at one year;
(H) an offense described in section 875876877, or 1202 of title 18(relating to the demand for or receipt of ransom);
(I) an offense described in section 22512251A, or 2252 of title 18(relating to child pornography);
(J) an offense described in section 1962 of title 18 (relating to racketeer influenced corrupt organizations), or an offense described in section 1084 (if it is a second or subsequent offense) or 1955 of that title (relating to gambling offenses), for which a sentence of one year imprisonment or more may be imposed;
(K) an offense that—
(i) relates to the owning, controlling, managing, or supervising of a prostitution business;
(ii) is described in section 24212422, or 2423 of title 18 (relating to transportation for the purpose of prostitution) if committed for commercial advantage; or
(iii) is described in any of sections 1581–1585 or 1588–1591 of title 18(relating to peonage, slavery, involuntary servitude, and trafficking in persons);
(L) an offense described in—
(i) section 793 (relating to gathering or transmitting national defense information), 798 (relating to disclosure of classified information), 2153 (relating to sabotage) or 2381 or 2382 (relating to treason) of title 18;
(ii) section 421 of title 50 (relating to protecting the identity of undercover intelligence agents); or
(iii) section 421 of title 50 (relating to protecting the identity of undercover agents);
(M) an offense that—
(i) involves fraud or deceit in which the loss to the victim or victims exceeds $10,000; or
(ii) is described in section 7201 of title 26 (relating to tax evasion) in which the revenue loss to the Government exceeds $10,000;
(N) an offense described in paragraph (1)(A) or (2) of section 1324 (a) of this title (relating to alien smuggling), except in the case of a first offense for which the alien has affirmatively shown that the alien committed the offense for the purpose of assisting, abetting, or aiding only the alien’s spouse, child, or parent (and no other individual) to violate a provision of this chapter  
(O) an offense described in section 1325 (a) or 1326 of this title committed by an alien who was previously deported on the basis of a conviction for an offense described in another subparagraph of this paragraph;
(P) an offense
(i) which either is falsely making, forging, counterfeiting, mutilating, or altering a passport or instrument in violation of section 1543 of title18 or is described in section 1546(a) of such title (relating to document fraud) and
(ii) for which the term of imprisonment is at least 12 months, except in the case of a first offense for which the alien has affirmatively shown that the alien committed the offense for the purpose of assisting, abetting, or aiding only the alien’s spouse, child, or parent (and no other individual) to violate a provision of this chapter;
(Q) an offense relating to a failure to appear by a defendant for service of sentence if the underlying offense is punishable by imprisonment for a term of 5 years or more;
(R) an offense relating to commercial bribery, counterfeiting, forgery, or trafficking in vehicles the identification numbers of which have been altered for which the term of imprisonment is at least one year;
(S) an offense relating to obstruction of justice, perjury or subornation of perjury, or bribery of a witness, for which the term of imprisonment is at least one year;
(T) an offense relating to a failure to appear before a court pursuant to a court order to answer to or dispose of a charge of a felony for which a sentence of 2 years’ imprisonment or more may be imposed; and
(U) an attempt or conspiracy to commit an offense described in this paragraph.

The term applies to an offense described in this paragraph whether in violation of Federal or State law and applies to such an offense in violation of the law of a foreign country for which the term of imprisonment was completed within the previous 15 years. Notwithstanding any other provision of law (including any effective date), the term applies regardless of whether the conviction was entered before, on, or after September 30, 1996.(SeeCornellLaw: http://bit.ly/9xyUc or FindLaw:  http://bit.ly/iVAMs5 )

Firearm Convictions – 
any conviction of “purchasing, selling, offering for sale, exchanging, using, owning, possessing, or carrying, or of attempting or conspiring to purchase, sell, offer for sale, exchange, use, own, possess, or carry, any weapon, part, or accessory which is a firearm or destructive device in violation of any law is deportable.” (firearms and destructive devices as definedin section 921(a) of Title 18 (see Cornell Law: http://bit.ly/iRr3fo or FindLaw: http://bit.ly/m4rwJK).

Federal Convictions
(1)  Spying, Sabotage, Treason, or Sedition – if the sentence could be 5 years or longer will make a person deportable
(2)  Military Expedition - against a friendly nation will make a person deportable
(3)  Selective Service – any violation of this Act will make a person deportable
(4)  Threats Against the President –any conviction for threatening the President will make a person deportable
(5)  Importation of alien for immoral purpose – any conviction under this statute will make a person deportable
(6)  Failure to Register -  a FEDERAL conviction for failing to register will make a person deportable. However, in United States v. Nasci, 632 F. Supp. 2d 194 (N.D.N.Y. 2009), a District Court found the statute unconstitutional because the statute was not a valid exercise of power under Necessary and Proper Clause, not valid exercise of spending power, and invalid under Commerce Clause.

April 14, 2011

Colorado Court of Appeals 4-14-11 criminal law decision

People v. Rizo            Anonymous Juries / Miranda and Custody (conviction affirmed)
Facts: A jury convicted Ms. Rizo of a class two felony sexual assault for allegedly assisting her boyfriend with the assault of the complaining witness. At 7:00 a.m., after they arrested her boyfriend, two officers went to Ms. Rizo’s apartment. According to the opinion when Ms. Rizo answered the door, the police asked for permission to enter, and Ms. Rizo consented. The opinion claims that the police simply stood by the door as they questioned Ms. Rizo. At some point, Ms. Rizo went to the bedroom, retrieved the complaining witness’s sweatshirt, and gave it to the police. The opinion highlights that the police first simply stood by the door, spoke in a conversation tone, did not physically restrain Ms. Rizo, and allowed her to move freely around the apartment until they terminated the interview and formally arrested her. The trial court denied the motion to suppress.
At trial, the trial court told the attorneys that it intended to use numbers to refer to the jury, and neither side objected. However, in practice, the court did not actually use an anonymous or numbered jury, instead the Court ordered the attorneys to use numbers instead of names during the general voir dire of the panel. However, during the individual voir dire, roll call, and announcements up to that point, the court and the attorneys referred to the jurors by name.
Issue: Whether the Court’s use of numbers in general voir dire violated Ms. Rizo’s right to due process?
Held: No.
Reasoning: The CofA pointed out 1) the defense did not object to the numbered system, and 2) with all that was known about each juror the CofA found the trial court simply did not use an anonymous jury. Further, the trial court’s preference for numbers did not violate Ms. Rizo’s right to due process because such a system did not raise the specter that Ms. Rizo was a violent or dangerous person.
Issue: Whether standing at her door and questioning Ms. Rizo in her own home constituted custody under Miranda?
Held: No.
Reasoning: The CofA found that the police did not hold Ms. Rizo in custody when they interrogated her: the police spoke in conversational tones, the police did not restrain Ms. Rizo, she did not try to leave, she did not try to end the interview, she retrieved the sweatshirt of the complaining witness for the police (I’m guessing showing her freedom of movement), and the police did not physically restrain Ms. Rizo until she said everything they wanted to hear. 

April 12, 2011

Colorado Supreme Court 4-11-11 criminal law decisions/opinions

People v. Gallegos         Wiretapping / Statutory Violation and Remedy / Neutral and Detached Magistrate / Appearance of Impropriety of Judge
Facts: The Chief Judge in El Paso County, Judge Samelson, signed a series of wiretaps that ensnared five separate people the prosecution accused of some drug distribution conspiracy. The Court consolidated all the interlocutory appeals. Judge Samelson previously recused himself from criminal cases because his son works in the District Attorney’s Office in El Paso County as an assistant DA. Judge Deb Grohs, former PD in Colorado and Chicago, with cajones the size of Saturn suppressed everything gained from these series of wiretaps. Judge Grohs found that Judge Samelson did not fulfill the requirement of being a neutral and detached magistrate.
Issue: Whether suppression of evidence is the proper remedy when a judge with an appearance of impropriety signs warrants authorizing wiretaps?
Held: No.
Reasoning: Simply put, the Court found no actual bias on the part of Judge Samelson, that the ethical rules of recusal do not necessarily warrant suppression, and that the affidavits established probable cause to issue a search warrant for the wiretaps.
            Constitutional Rules for a Wiretap:           
(1)  Signed by a neutral and detached magistrate;
(2)  Affidavit and supporting documents establish probable cause;
(3)  Wiretaps will disclose evidence of specific crimes.
(4)  Wiretaps are presumed valid – even on appeal;
Non-neutral Magistrate
(1)  Pecuniary interest - See Connally v. Georgia, 429 U.S. 245, 250 (1977)(magistrates paid per warrant); or
(2)  Acting in a law enforcement capacity - See Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 326-27 (1979)(magistrate who signed the warrant joined in the search with police). (Interestingly, the Colorado Supreme Court went on to list a series of cases where the magistrate acted in a neutral fashion: previously prosecuted the accused, attorney for an adverse party prior to becoming a judge, represented the accused as his criminal defense lawyer prior to becoming a judge, magistrate’s husband a deputy sheriff. The Court found in each case probable cause existed, and the defense did not produce any evidence of actual bias.)(citations omitted)
Thus, the issue here was whether Judge Samelson acted in a neutral and detached manner - in fact – not appearance. The court found that ethical canons, rules or statutes may be relevant to the analysis; however, a violation of any would not necessite suppression unless the judge actually evinced bias against the accused. 
            Statutory Violations of the Wiretap Statute § 16-15-102:
Evidence can be suppressed if:
(1) unlawfully intercepted; or
(2) the order of authorization or approval is insufficient on its face; or,
(3) the interception was not made in conformity with the order of authorization or approval. § 16-15-102(10).
However, the Court then limited the breadth of the statute, “Suppression is the appropriate remedy only if there is both lack of compliance with the wiretap statute and prejudice to a defendant.” The Court then dismissed the statutory violations in this case as insignificant (an aggravating result when each statutory violation seemed significant on its own without the cumulative blow-off of the entire statute by the police and the District Attorney):
-       wrong date (clerical or if not, no evidence of shenanigans on the part of the police or DA);
-       no progress reports on the investigation when the judge granted an extension on the wiretap warrant (reports up to issuing judge’s discretion, thus, suppression not warranted for failing to comply); see §16-15-102(7)
-       failure to give notice to tapped party, as §16-15-102(8)(d) requires; all A-OK, and suppression not warranted.
-       finally, failure to disclose to the defense the wiretap application, affidavits, and orders at least ten days prior to the hearing on the matter, as required by §16-15-102(9), did not warrant suppression.

In Re: People v. Williamson         Rape Shield / Definition of “Sexual Conduct”
Facts: The prosecution charged Mr. Williamson with kidnapping and sexual assault. Mr. Williamson claimed the complaining witness works as a prostitute, and wanted to admit other instances of her prostitution to prove she is in fact a prostitute. Justice Rice, in the first paragraph, wrote, “[He] concedes that he never paid the victim.” Mr. Williamson moved to introduce five instances where the complaining witness solicited prostitution to undercover cop. None of the five instances that Mr. Williamson sought to admit involved actual intercourse or any kind of sexual contact
Issue: Whether “sexual conduct” in the Rape Shield statute encompasses instances where no sexual contact or intercourse occurred?
Held: Yes.
Reasoning: In People v. Cobb, 962 P.2d 944, 951 (Colo. 1998), the defense sought to admit police contact cards on the complaining witness. In Cobb, the complaining witness told the police Mr. Cobb raped her when she ran out of gas and that she was unfamiliar with the area. However, the contact card showed she used the same excuse when the police contacted her in the same area with another man. Mr. Cobb sought introduction of the evidence to impeach the complaining witness for claiming she was not familiar with the area. The Court drew a difference between the scenario in Cobb and here. The Court stated Rape Shield did not encompass inferences of sexual conduct, as was the situation in Cobb. Here the defense did not make mere inferences of prostitution, but sought prior instances of soliciting prostitution. Thus, the Court held that even where no actual sexual contact or intercourse takes place, sexual conduct is broad enough to include prior acts of simply soliciting prostitution.

People v. Hernandez            Leaving the Scene of An Accident / Sufficiency of the Evidence
Facts: Chivalry is not dead. Mr. Hernandez allegedly drove an SUV after a party, and crashed into another car. The occupants of the other car suffered some serious injuries. At the scene, Mr. Hernandez’s girlfriend told the police she was driving, and gave the police her information. Mr. Hernandez remained on scene, gave his girlfriend his information to write in under ‘passenger’, and never disclosed that he was the one actually driving. Mr. Hernandez left after the police took his girlfriend in for a blood alcohol test. Later, after the prosecution charged her with DUI, the girlfriend recanted her story. The state subsequently prosecuted Mr. Hernandez for leaving the scene of an accident.
Issue: Whether the prosecution can sustain a conviction where the accused never left the scene of the accident but also never disclosed that he was the actual driver?
Held: Yes.
Reasoning: The Court held that although the statute does not specifically require identifying oneself as the actual driver that is what the driver must do if she or he is involved in an accident. Justice Martinez dissented. Thus, the Court held the evidence of not identifying himself and allowing a misrepresentation of the identity of the actual driver was sufficient to sustain a conviction. 

April 8, 2011

U.S. Supreme Court 3-7-11 criminal law decision

Wall v. Kholi            Tolling / Post-conviction / Antiterrorism and Effective Death Penalty Act / Writ of Habeas Corpus
Facts: Rhode Island convicted Mr. Kholi of ten counts of sexual assault, and the trial court sentenced him to consecutive life terms. Mr. Kholi filed a direct appeal, and his conviction became final in 1996. Mr. Kholi also filed two post-conviction motions – a 35(b) reconsideration motion seeking concurrent rather than consecutive life sentences, and a 35(c) post-conviction motion. Mr. Kholi filed the 35(b) in 1996 within a year of his conviction becoming final. Moreover, Mr. Kholi filed a 35(c) while the reconsideration post-conviction motion was pending in the trial court. The trial court eventually denied both post-conviction motions, and the Rhode Island Supreme Court affirmed those denials – the last on December 14, 2006. Mr. Kholi then filed a petition for writ of habeas corpus in Federal district court on September 5, 2007, within a year of the last decision from the Rhode Island Supreme Court. Rhode Island complained that Mr. Kholi did not file his writ of habeas corpus within a year of the conviction, which is required by AEDPA.
Issue: If the time in which the 35(b) motion does not toll the time period to file the great writ, then Mr. Kholi is SOL. If a 35(b) type motion does toll the 1-year period, Mr. Kholi filed his writ of habeas corpus in a timely fashion.
Held: The filing of a motion for reconsideration does toll the time period in which a petition for writ of habeas corpus must be filed.
Reasoning: The U.S. Supreme Court took cert on the issue because the Federal Circuit Courts are split. Justice Alito wrote the opinion with nary a dissenter. First, to toll the time period under the AEDPA, the motion must be a request for “collateral review”.  The Court reasoned, “Viewed as a whole, then, ‘collateral review’ of a judgment or claim means a judicial reexamination of a judgment or claim in a proceeding outside of the direct review process.” The Court then looked at the purposes of a 35(b) motion (Rhode Island’s Rule 35 and Colorado’s Rule 35 mirror each other). The Court found indeed a motion to reconsider does fall outside the direct review process, seeks review of the sentence by the trial court, and falls squarely within the definition of collateral review.

April 7, 2011

Colorado Court of Appeals criminal law decisions 3-31-11

People v. Valencia (Judgment and Conviction Reversed) Expert Testimony / Personal Knowledge / Chain of Custody / Sexually Violent Predator
Synopsis: At trial for sexual assault, the expert testified that she tested the items in question. However, the prosecution offered no chain of custody of the items and the expert did not possess personal knowledge on the origin of the items tested. A jury convicted Mr. Valencia of sexual assault, second-degree assault, burglary and false imprisonment. At the sentencing hearing the trial court found Mr. Valencia to be a sexually violent predator (as did the SVP evaluation).
Issue: Whether the trial court erred in admitting expert testimony and testing results when the prosecution did not place the items into evidence, offered no chain of custody of the items, and the expert had no personal knowledge about the origin of the items?
Held: Yes.
Reasoning: The CofA held that, although the items themselves do not need to be admitted into evidence, but “before expert testimony as to the results of the testing of an object may be received, some proof must be presented of a connection between the object tested and the defendant, the victim, or the crime. Otherwise, the testimony would have no relevancy. The object must be identified.”
Issue: Whether the trial court erred in finding Mr. Valencia to be a sexually violent predator?
Held: Yes.
Reasoning: The SVP evaluation concluded that Mr. Valencia ‘promoted’ the relationship, and the trial court used the evaluator's conclusion as a basis to find him to be a SVP. The CofA disapproved of this ruling. The CofA held that Mr. Valencia did not promote the relationship with the complaining witness because they had a previous on-going relationship, engaged in consensual sex two weeks prior to the assault, and he did not seduce, stalk, drug, or introduce inappropriate sexual contact into the relationship with the complaining witness. Thus, Mr. Valencia did not "'promote a relationship primarily for the purpose of sexual victimization, an offender must engage in some conduct, beyond the sexual assault itself, which is designed to establish an initial relationship or to expand an existing relationship into one primarily for the purpose of sexual victimization....Obvious examples would include teachers, coaches, or clergy who have a limited relationship with a victim and attempt to lure the victim into a broader relationship primarily for the purpose of sexual victimization.' Tixier, 207 P.3d at 848. These circumstances are not present here, and the trial court erred in concluding that defendant satisfied the SVP statute's third element and, thus, in designating him a sexually violent predator.” (citing People v. Tixier, 207 P.3d 844, 849 (Colo.App.2008)).

People v. Walker  (Conviction Vacated) - Abandoned Claim / Deferred Judgment
Synopsis: Ms. Walker entered a guilty plea to possession of a schedule II controlled substance, a felony. The trial court approved a deferred sentence. Two months prior to end of the deferred period, the prosecution moved to revoke the deferred. According to the person supervising the deferred, Ms. Walker could not be located. Thus, the prosecution sought a warrant for Ms. Walker’s arrest and claimed to have mailed a copy of the motion to revoke to defense counsel. Authorities arrested Ms. Walker in 2008 while she was at work - some 6 years after the deferred judgment period ended and the warrant issued. In the interim, the trial court held two reviews/hearings where, according to the CofA, nothing happened. Ms. Walker testified that she never moved and that she still lived in the same apartment in which she resided at the time of the plea.
Issue: Whether the prosecution abandoned the motion to revoke Ms. Walker’s deferred sentence?
Held: Yes.
Reasoning: Because Ms. Walker lived at the same apartment in which she resided when she pled guilty, the CofA found no time could be excluded from the period in which to prosecute the motion to revoke. (“When the defendant is voluntarily absent from the jurisdiction or is imprisoned on another offense, the time that passes after the prosecution files a timely application for revocation and an arrest warrant is issued is not counted against the prosecution. People v. Peretsky, 44 Colo.App. 270, 272, 616 P.2d 170, 172 (1980).”). Further, the CofA found the prosecution did not make reasonable efforts to give notice to either Ms. Walker or her defense counsel. The CofA found that the record contained no evidence that the prosecution gave notice of the hearings to either Ms. Walker or her counsel. Thus, if the prosecution does not make reasonable efforts to procure the defendant or defendant’s counsel, then the claim or motion will be deemed abandoned.

People v. Brown    (Judgment and Conviction Reversed) - Choice of Counsel
Synopsis: Mr. Brown hired private counsel just prior to when the trial court scheduled his jury trial. The trial court would not allow a continuance. Subsequently, the private attorney withdrew because he stated he would not be ready for trial, and thus, he would be ineffective. Further, the private attorney told the trial court that Mr. Brown’s family had been attempting to hire him for quite some time, and finally got the money together just prior to his entry of appearance and motion to continue.
Issue: Whether the trial court violated Mr. Brown’s right to be represented by a lawyer of his own choosing?
Held: Yes.
Reasoning: The trial court may deny late entry of counsel if such change was made to delay the proceedings, but here the trial court made no such findings. The CofA did on its own, and found the record lacking of evidence that Mr. Brown hired counsel to manipulate the trial court schedule or to delay the proceedings. Further, the CofA found none of the continuances could not be ‘charged’ to the defendant. Moreover, Mr. Brown did not seek any replacement of counsel prior to the entry of the private attorney. The trial court did not inquire of the private attorney about how long preparation may take or when the attorney can schedule the trial. Lastly, the prosecution failed to show any prejudice had the trial court granted the continuance of the jury trial.

People v. Devorss    (Affirmed) - Probation Revocation / Unconstitutionally Vague Condition           
Synopsis: Mr. Devorss pled to sexual assault on a child. The trial court granted Mr. Devorss probation and imposed a condition, as part of Mr. Devorss probation, that he not have any ‘contact’ with children under 18. Mr. Devorss, who previously had his probation revoked and reinstated 5 times, went to a restaurant with a co-worker and his mother. When he went to sit down, there was a child sitting at the table. Mr. Devorss sat next to the child but did not speak to the child or interact with the child. A snitch of a probation officer spied on Mr. Devorss, and reported the alleged violation to Mr. Devorss’ direct probation officer.
Issue: Whether the ‘no contact’ provision of Mr. Devorss probationary sentence is unconstitutionally vague?
Held: No.
Reasoning: The CofA found the defense reading of no contact too ‘narrow’. Thus, after a lengthy opinion, which could have been written in one paragraph, the CofA held that contact includes eating a meal next to a kid.

People v. Mares   (Affirmed) - 5th Amendment Privilege of the Witness / Jail Calls – Wiretapping
Synopsis: A jury convicted Mr. Mares of 2nd degree murder, first-degree assault, and menacing. At trial, outside the presence of the jury, a witness, A.A., refused to testify, and invoked his 5th Amendment privilege. The prosecution stated the witness was not subject to any criminal investigation, and the Court ordered the witness to testify. Still, the witness refused. The Court held the witness in contempt, and put him in jail. Further, the trial court, at the prosecution’s request, instructed the jury that the witness refused to testify. In the trial court’s instruction to the jury, the trial court mentioned that the witness asserted his 5th Amendment privilege, and refused to testify. The prosecution argued the same in closing. The defense justifiably objected to any reference to the witness’s refusal to testify or to an instruction. Moreover, the trial court held a hearing on the voluntariness of statements given by another witness, O.M., where the officer all but physically threatened the witness to spill the beans against Mr. Mares. Lastly, the trial court allowed the prosecution to admit jail calls recorded without a warrant or consent.
Issue: Whether the trial court committed reversible error in instructing the jury about the witness, A.A., refusing to testify?
Held: No.
Reasoning: “First, reversible error exists where the prosecution engages in misconduct consisting of a “conscious and flagrant attempt to build its case out of inferences arising from use of the testimonial privilege.” People v. Newton, 966 P.2d 563, 569–72 (Colo.1998).” The CofA then cited a 5-part totality of the circumstances test: (1) the prosecutor's intent in calling the witness; (2) the number of questions asked; (3) their importance to the state's case; (4) whether the prosecutor draws any inference in closing argument from the refusal to answer; and (5) whether the trial court gives a curative instruction.
Here, the CofA did find the trial court erred in referencing the 5th Amendment privilege of the witness and in not giving a curative instruction, but that any inferences that could be drawn from the instruction itself “were not of critical importance to the prosecution’s case." Moreover, the CofA acknowledged that part of the prosecution’s closing touched on the witness refusing to testify. Nevertheless, the CofA found none of these instances amounted to prosecutorial misconduct.  The CofA reasoned because the prosecution only referenced the witness’s refusal to testify and did not ask the jury to draw any inferences from that refusal, the prosecution did not engage in the kind of misconduct that would require a reversal. Lastly, the CofA found the prosecution did not act in bad faith because 1) they called the witness in ‘good faith’ – claiming to not know that the witness would refuse to testify; 2) the prosecution only wanted an instruction on the witness’s refusal to testify, and did not ask for the trial court to cite the 5th Amendment – the trial court did that on its own.
Issue: Whether the trial court erred in allowing the prosecution to admit jail phone calls recorded without a warrant or Mr. Mares’ consent?
Held: No.
Reasoning: The CofA held 1) the notice given by the jail provided sufficient notice to Mr. Mares that all his phone calls would be recorded; 2) that Mr. Mares’ impliedly and voluntarily consented because despite the notice of the rules of the jail, Mr. Mares continued to use the telephone. Lastly, the CofA reasoned that the Wiretapping Statute did not apply because Mr. Mares consented to recording his jail phone calls.
Issue: Whether the trial court erred in finding the statements of a witness, O.M., to be voluntary despite veiled and direct threats against her?
Held: No.
Reasoning: The CofA assumed without holding that the admission of an involuntary statement of a witness would amount to a violation of due process. The CofA cited Clanton v. Cooper, 129 F.3d 1147, 1157–58 (10th Cir.1997), which held, “[B]ecause [an involuntary statement] is unreliable and its use offends the Constitution, a person may challenge the government's use against him or her of a coerced confession given by another person.”
Here, the trial court held a hearing on the voluntariness of O.M.’s statements, and found her statements to law enforcement to be voluntary. During her interview, the officer threatened O.M. with prosecution, told her that “she was ‘an eighteen-year-old girl with two little kids”, and that she would be in prison with “a bunch of hardcore thugs, gang bangers, murderers, and rapists.” Moreover, O.M. broke down crying at one point in the interview. The CofA reasoned the cop did not threaten to take O.M.’s kids away, but merely mentioned them. The CofA then found O.M’s statements voluntary. Other than that, the CofA offered no real reasoning to justify the trial court’s finding that O.M.’s statements were voluntary, but affirmed the finding nevertheless.

People v. Glasser   (Affirmed) - C.R.E Rule 404(b) / DNA / Exclusionary Rule
Synopsis: The prosecution claimed that, in 1996, Mr. Glasser grabbed the complaining witness by the neck, put her in his van, and then raped her, but the case went unsolved for ten years. From a subsequent unrelated plea deal in Arapahoe County, Mr. Glasser gave a DNA sample. In 2006, the state ran the DNA sample of the unknown assailant from the '96 rape through the DNA database, and unfortunately for Mr. Glasser, the prosecution claimed the DNA sample matched Mr. Glasser’s DNA in the database. A jury convicted Mr. Glasser. In the Arapahoe cases that generated the DNA sample, a court ruled the sentence worked out between Mr. Glasser and the prosecution was illegal, and allowed Mr. Glasser to withdraw his plea in the two cases.
As part of its case-in-chief, the prosecution sought to admit evidence of two other bad acts (facts from the two cases involved in the joint plea in Arapahoe). Here’s the CofA’s recitation of the other bad acts: 
"During the first encounter, defendant offered a twenty-year-old woman with Down syndrome a ride in his truck. Once the woman was in the truck, and without her consent, defendant kissed her, caressed her breasts over her shirt, and rubbed her back, shoulders, and thigh. He then reached up her shirt and tried to reach down her pants while she asked him to stop. In the second encounter, defendant offered a fourteen-year-old girl and a sixteen-year-old girl, who were on foot, a ride in his truck. Before arriving at their destination, defendant took the first girl's hand, put it in his pants, and forced her to touch his penis.”
According to the opinion the two other bad acts took place within three days of each other and seven months after the incident with the complaining witness here.
Issue: Whether the trial court erred in admitting the DNA taken as a result of the illegal plea agreement?
Held: No.
Reasoning: After a bunch of  rigamarole, the CofA found that the exclusionary rule does not apply to judicial errors – only to constitutional violations committed by the police. The CofA wrote, “Importantly, the rule is not a personal constitutional right of the party aggrieved; its use is not warranted where it would not result in appreciable deterrence. Herring v. United States, 555 U.S. 135,––––, 129 S.Ct. 695, 700 (2009). ‘The exclusionary rule was crafted to curb police misconduct rather than judicial misconduct....’ Herring, 555 U.S. at ––––, 129 S.Ct. at 701.” Thus, the trial court did not err in admitting the DNA taken as a result of the illegal plea agreement.
Issue: Whether the trial court erred in admitting evidence of the two other bad acts under Rule 404(b)?
Held: No.
Reasoning: The CofA wrote, “The other acts evidence admitted tends to refute that defense [consent] by showing that defendant targeted vulnerable young women on foot and used his vehicle to isolate them to facilitate his forcible infliction of sexual contact. Because this evidence is highly probative of the victim's lack of consent, the similarity of the prior acts supports their admission.”

People v. Robles  (Affirmed) - Numbered or Anonymous Juries / Confrontation / Prosecutorial Misconduct
Synopsis: A jury convicted Mr. Robles of felony murder, kidnapping and other charges related to the killing of his ex-girlfriend. The prosecution played hide and seek with witnesses, and claimed to the court all the witnesses were scared. The trial court on its own motion used a number system to refer to the jurors. The prosecution endorsed and called A.R., Mr. Robles’ former roommate, as a witness. Prior to trial, A.R. went missing, and just before trial turned up in jail. The prosecution interviewed A.R., but delayed disclosing his whereabouts to the defense until just prior to trial. The trial court found that because A.R. was scared, the prosecution was justified in the delay. During closing, the prosecutor argued that “only one person could answer these questions … the defendant.”
Issue: Whether impaneling a numbered jury violated Mr. Robles’ right to due process and a fair trial?
Held: No.
Reasoning: The CofA treated both anonymous juries and a numbered jury as the same issue. The CofA found no Colorado precedent for the use of an anonymous or even a numbered jury, and then looked to other jurisdictions for guidance. The Court stated, “a court should not impanel [an anonymous] jury unless it (1) concludes that there is a strong reason to believe the jury needs protection and (2) takes reasonable precautions to minimize any prejudicial effects on the defendant and to ensure that his or her fundamental rights are protected.” quoting State v. Sandoval, 788 N.W.2d 172, 195 -96 (Neb.2010). To determine whether a jury needs protection, the CofA listed 5 factors:
(1) the defendant's involvement in organized crime; (2) the defendant's participation in a group with the capacity to harm jurors; (3) any past attempts by the defendant to interfere with the judicial process or witnesses; (4) the potential penalty for any conviction; and (5) extensive publicity that could make the jurors more vulnerable to intimidation and harassment.
The CofA found that the trial court erred in not making findings about the use of a numbered jury. Nevertheless, the CofA found no error because neither the defense nor prosecution objected, the trial court did not emphasize the use of numbers, and the trial court did not bar Mr. Robles from being present and having names and information on the jurors.
Issue: Whether the trial court violated Mr. Robles’ right under the Confrontation clauses by admitting hearsay statements of the deceased?
Held: No.
Reasoning: Originally the prosecution charged Mr. Robles with sexual assault along with the other charges. To defend against the kidnapping and sexual assault, Mr. Robles ran consent as a defense. Thus, the CofA found no error admitting the hearsay statements of the deceased because the statements refuted the theory of consent. Despite proper defense objections to the hearsay under the confrontation clauses, the CofA treated the issue, not as a constitutional harmless error, but as an evidentiary ruling where the standard is the easy to affirm abuse of discretion standard.
Issue: Whether the stock Colorado reasonable doubt instruction properly instructed the jury?
Held: Yes.
Reasoning: The CofA followed previous court decisions that found no error with the stock instruction.
Issue: Whether the trial court erred in either not striking A.R. as a witness or allowing a continuance?
Held: No
Reasoning: The CofA bought the line of crap that the witness, A.R., was afraid, and thus, justified the prosecution’s sandbagging. The prosecution claimed to want protection orders in place prior to disclosure, and both the trial court and the Court of Appeals bought that as an excuse to violate Rule 16.
Issue: Whether the prosecution committed prosecutorial misconduct in closing argument?
Held: No
Reasoning: The CofA held that the prosecution did not commit an error by referencing Mr. Robles’ right to remain silent when it argued, “only one person could answer these questions … the defendant.” The CofA simply made the conclusory argument, “We conclude that the prosecutors' rhetorical questions and comments on the lack of evidence were not improper.”

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