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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