U.S. Supreme Court decision, Brown v. Plata

Brown v. Plata            Eighth Amendment / Cruel and Unusual Punishment / Prison Overcrowding

Facts: California housed some mentally ill inmates in phone booth sized cells, left others in catatonic states, and grossly understaffed for the needs of the all mentally ill inmates. Further, California left otherwise treatable illness, diabetes, hypertension, and suicidal ideation untreated leading to the deaths of many other inmates. In one converted gym that housed inmates, the staff did not learn of an inmate's death until hours after the inmate died from injuries suffered from an assault. According to the Court's opinion, California averaged 1 inmate death every 6 or 7 days. Hence, California’s inmates filed two separated suits – one seeking relief for inmates with mental illnesses, filed in 1990, and another for inmates needing medical care, filed in 2001. California’s prisons operated at 200% of occupancy for some eleven years. Due in large part to overcrowding, the mentally ill, sick, and others needing medical care did not receive minimal, adequate care. Plaintiffs in each suit sought the extraordinary relief of court ordered reduction in the prison population after years of suffering through other court ordered remedies. In order to achieve such relief, the statute requires a separate trial in front of a three-judge panel. Each district court granted the motion for a three-judge panel, and combined the suits into one case. The three-judge panel conducted a two-week trial, and in the end, found California violated the Eighth Amendment’s prohibition on cruel and unusual punishment.

Issue: Whether the three-judge panel erred finding that overcrowding amounted to Cruel and Unusual Punishment in violation of the Eighth Amendment of the United States Constitution?

Held: No.

Reasoning: The U.S. Supreme Court, with Justice Kennedy writing for the majority, held that prison overcrowding primarily caused the substandard, and thus cruel and unusual treatment of California’s inmates. Because the overcrowding took staff and facilities away from those who suffered from mental or medical illness, the Court reasoned such depravation of basic health services amounted to cruel and unusual punishment. Thus, the Court held overcrowding primarily caused the Eight Amendment violation. Such a finding is necessary under the statute prior to moving forward with any remedy to alleviate overcrowding.

Issue: Whether any other relief will remedy the constitutional violation?

Held: No.

Reasoning: California argued for the “less restrictive” remedy of transferring inmates to other states, but complained the district courts slowed their plans by requiring that any facilities meet the Eighth Amendment’s prohibition against cruel and unusual punishment. The Court found no basis that California intended to actually implement such a plan. Further, the Court found transferring inmates to other states is one method California can use to meet the Court ordered reduction, and thus, the Court also found that transfer is not a less restrictive remedy. California claimed that it could build its way out of the crisis to which the Court retorted, quoting in part the three-judge panel, “Particularly in light of California's ongoing fiscal crisis, the three-judge court deemed ‘chimerical’ any ‘remedy that requires significant additional spending by the state.’” 

(chimerical:  “existing only as the product of unchecked imagination; fantastically visionary or improbable.” http://www.merriam-webster.com/dictionary/chimerical ). The state also claimed filling vacant staff positions would be a less restrictive alternative. However, the Court found such a plan would likely bankrupt California, would not be sufficient given the vacancies do not account for additional positions needed due the ever expanding prison population, and given California’s on-going fiscal crisis, the state could not realistically implement such a plan.

Issue: Whether the three-judge panel narrowly tailored the remedy to rectify the constitutional violation?

Held: Yes.

Reasoning: California complained the order swept broader than necessary to remedy the Eighth Amendment violation. The Court reasoned, “Prisoners in the general population will become sick, and will become members of the plaintiff classes, with routine frequency; and overcrowding may prevent the timely diagnosis and care necessary to provide effective treatment and to prevent further spread of disease. Relief targeted only at present members of the plaintiff classes may therefore fail to adequately protect future class members who will develop serious physical or mental illness. Prisoners who are not sick or mentally ill do not yet have a claim that they have been subjected to care that violates the Eighth Amendment, but in no sense are they remote bystanders in California's medical care system. They are that system's next potential victims. A release order limited to prisoners within the plaintiff classes would, if anything, unduly limit the ability of State officials to determine which prisoners should be released.”

Issue: Whether the three-judge panel erred when it ordered California to reduce its prison population to 137.5% of capacity?

Held: No.

Reasoning:  California argued for 145% of capacity, but its own Chief Deputy of Healthcare for the prisons testified that California could not adequately care for prisoners with any population over 100%. Most other experts thought 130% would rectify the constitutional violations. The three-judge panel split the baby at 137.5%, and the Court held the record supported this finding.

Justice Alito's dissent focused on the ‘danger’ to the general populace. However, given that California’s draconian three-strikes law imprisons people from 25 years to life for attempting to steal three golf clubs, see Ewing v. California, 538 U.S. 11 (2003), or 50 years to life for the petty offense of stealing five video tapes, see Lockyer v. Andrade, 538 U.S. 63 (2003), the danger to the general populace is illusory at best.

Colorado Court of Appeals criminal law decision 5-12-11

People v. Hill            Untimely Appeal / Good Cause / Restitution           

Facts: Mr. Hill appealed the trial court's denial of his motion to withdraw his plea. However, while his appeal was pending with the Colorado Court of Appeals, the trial court held a restitution hearing. Following the hearing on restitution, the trial court ordered that Mr. Hill pay $3332.45. The Attorney General argued, Mr. Hill agreed, and the CofA found the restitution order to be separately appealable. However, Mr. Hill never appealed the restitution order. A year later, Mr. Hill filed an amended notice on his original appeal challenging the restitution.

Issue: Whether Mr. Hill may file an appeal of a restitution order almost a year past the deadline?

Held: No.

Reasoning: All you really need to know to understand this decision is the first two paragraphs of the opinion:

During the pendency of this appeal from the denial of Kevin Hill's motion to withdraw guilty plea and vacate sentence, the trial court entered an order awarding $3332.45 in restitution. Hill did not file a notice of appeal from this order. More than a year later, he moved for leave to file an amended notice of appeal challenging it.

We conclude that the restitution order was separately appealable; that even if Hill's motion could be treated as a notice of appeal, it was untimely; and that he has not shown good cause under C.A.R. 26(b) to excuse his untimeliness. Therefore, we exercise our discretion and deny the motion.”

            The CofA found no good cause to allow out-of-time appeal of the restitution because: 1) Mr. Hill always had representation; 2) Mr. Hill can proceed under 35(a) or (c). The CofA did not think much of the 35(c), and so it did not find the judicial economy argument persuasive; 3) The record does not reflect that Mr. Hill directed his attorney to appeal the restitution order; 4) The right to appeal a restitution order is not a ‘fundamental right’. The CofA found no fundemental right to appeal restitution because the order is a civil judgement, the burden of proof is only by a preponderance, that restitution can be granted on victim impact statements alone, and “’[A] criminal conviction establishing the defendant's culpability [for some elements of loss] is not required to impose restitution.’” quoting People v. Pagan, 165 P.3d 724, 731 (Colo.App.2006).

United States Supreme Court decision, Kentucky v. King, decided 5-16-11

Kentucky v. King     Fourth Amendment / Warrantless Search / Exigent Circumstances  - Cop Created Exigency and Destruction of Evidence

Facts: After a controlled buy with a snitch, the police follow a suspected drug dealer to an apartment building. The police heard a door shut, but did not know exactly what apartment the suspected dealer entered. The police stood outside both and smelled marijuana. The police knocked and then claimed they heard noises, moving furniture, which sounded like destruction of evidence. Without a warrant, without consent, without knowledge of the exact apartment, without knowing the if suspected drug dealer actually entered the apartment, the police busted into the apartment - the wrong apartment (where unfortunately folks were getting high). Upon entry, the police claim they saw drugs in plain view. The prosecution argued the police needed to prevent the destruction of evidence, and thus, argued exigent circumstances relieved the officers of the burden of getting a warrant as is usually required by the Fourth Amendment of the United States. The defense argued the police created their the exigency, and thus, could not enter on that basis.

Issue: Whether the officers acted reasonably when they entered a home after hearing noises consistent with destruction of evidence or did the police create the exigency?

Held: Yes, they can enter sans any warrant, and no, the police did not create the exigency.

Reasoning: Justice Alito wrote the opinion, and unfortunately only Justice Ginsberg dissented. Justice Alito reasoned because the police did not cause the exigency themselves, they could enter based upon exigent circumstances. The Kentucky Supreme Court found the opposite – that the police conduct created the exigency. The Court reversed the Supreme Court of Kentucky:

Despite the welter of tests devised by the lower courts, the answer to the question presented in this case follows directly and clearly from the principle that permits warrantless searches in the first place. As previously noted, warrantless searches are allowed when the circumstances make it reasonable, within the meaning of the Fourth Amendment, to dispense with the warrant requirement. Therefore, the answer to the question before us is that the exigent circumstances rule justifies a warrantless search when the conduct of the police preceding the exigency is reasonable in the same sense. Where, as here, the police did not create the exigency by engaging or threatening to engage in conduct that violates the Fourth Amendment, warrantless entry to prevent the destruction of evidence is reasonable and thus allowed.

A couple of points: 1) this whole body of law based upon the reasonableness of police officers assumes they actually testify truthful, which a cop never does. Police officers know exactly what to say and when to say it to allow unconstitutional conduct; 2) Justice Alito and the other strict constructionalists and original intenters, simply ignore the Fourth Amendment’s mandate for a warrant, and turn this exigency exception into the rule based upon whether the officer acted reasonably; 3) These same original intenters always profuse a love for state courts. The original intenters and strict constructionalist lecture on and on about the sanctity of state court proceedings and rulings when a Federal Court reverses a state court, especially on death penalty case. The same original intents disregard the state court sanctity when the state court actually gives meaning and life to the Fourth and Fifth Amendments. 

Colorado Supreme Court criminal law decisions 5-16-11

Oram v. People; Weinstein v. People      ‘Bonding Agent Privilege’ / Consent / Sufficiency of the Evidence

Facts: Mesrrs. Oram and Weinstein, two bounty hunters, pretended they were cops to gain entry into the home of someone suspected of jumping bail. The person Mesrrs. Oram and Weinstein sought? A John Vigil. The house Mesrrs. Oram and Weinstein broke into to arrest Mr. Vigil? Eugene Vigil’s – John Vigil’s brother. However, John Vigil did list the home as his residence, but had not actually lived there since the early ‘80’s according to the Court. Neither Mr. Oram nor Mr. Weinstein possessed a photo of John Vigil, and thus, arrested the wrong guy, a Joe Martinez. Eventually, Mesrrs. Oram and Weinstein learn that John Vigil did not live at the home, that Joe was not John, and that John Vigil, the man they sought, was in jail. At trial, each asserted the common law defense of Bonding Agent Privilege. The trial court gave a version of the Bonding Agent Privilege, and a jury found each guilty of burglary and felony menacing.

Issue: Whether the common law defense, Bonding Agent Privilege, exists in Colorado to allow entry into a private residence without consent?

Held: No.

Reasoning: The Court combined both Oram and Weinstein into one opinion – Oram v. People. The Court declined to follow other states, and held that the bond person privilege does not survive because the statute granting bond agents the authority to arrest does not grant bond agents authority to break-and-enter homes. The Bond Agent’s Privilege came from Taylor v. Taintor, 83 U.S. 366 (1872)(“…if necessary, [the bond agent] may break and enter his house for that purpose. Semi-just result as poor folks already got cops busting in their home for spurious reasons, they do not need also worry about bounty hunters (Justice Rice, always sympathetic to anyone who claims the mantle of victimhood, refers to the entire Hispanic family, whom Mr. Oram and Weinstein burglarized, not as ‘victims’ but with the dehumanizing ‘The Inhabitants’.)

Issue: Whether the contract John Vigil signed established the affirmative defense of consent?

Held: No.

Reasoning: To their credit, Mesrrs. Oram and Weinstein went to the address that John Vigil listed as his. The bonding contract John Vigil signed allowed the bondsperson or agent to enter his home and arrest him for violating the contract, which he did when he failed to appear. However, John Vigil actually had not lived at the home of Eugene Vigil since the early 1980’s according to the opinion. The Court unfairly restricts Mesrrs. Oram’s and Weinstein’s right to raise the affirmative defense of consent. No doubt, each reasonably believed that John Vigil lived at the home John Vigil listed as his. The Court did not care. Because John Vigil did not actually live at the residence and because none of the actual residents of the home consented to the entry, the Court held that neither Mr. Oram nor Mr. Weinstein were entitled to an instruction on the affirmative defense of consent.

Issue: Whether the prosecution provided enough evidence sufficient for a conviction?

Held: Yes.

Reasoning: Mesrrs. Oram and Weinstein argued that they did not knowing burglarize the home because neither believed he was committing a crime. Instead simply executing an arrest warrant. The Court focused the impersonating a cop, and found both men knew they were committing a crime because otherwise they would not have impersonated a cop to effectuate an arrest. Here is the problem with that analysis: These two bounty hunters signed on to get someone suspected of jumping bail; neither had the intent to commit any crime; their only intent was to arrest a bond jumper. To prove the point, once they realized they arrested the wrong man and that John Vigil did not actually reside at the residence, they uncuffed the man and left. Further, both gave their information to the family to call if they heard from John Vigil. Not to be all that sympathetic to folks that hold Dog the Bounty Hunter in high esteem, but the result here seems unjust. 

People v. Gonzalez-Zamora             Miranda – Voluntariness

Facts: In Palm Beach County Florida, an officer stopped and questioned Mr. Gonzalez-Zamora for open container. After doing a warrant check, a possible warrant came out of Denver for murder. The officer took Mr. Gonzalez-Zamora to the station to determine whether he was the man wanted in Denver. After receiving pictures confirming Mr. Gonzalez-Zamora was the subject of the warrant, the police started reading him his rights in Spanish. Mr. Gonzalez-Zamora spoke no English. During the advisement, Mr. Zamora rarely made any verbal statements, but did nod to indicate he did not understand two points, according to the Court. After the police read the Miranda advisement, the police did not ask whether he waived his rights, but instead told him sign the card indicating he waived. The police then started questioning Mr. Gonzalez-Zamora about being in Colorado, and Mr. Gonzalez-Zamora made incriminating statements. The trial court found both the waiver and the statements to be involuntary, and suppressed all of Mr. Gonzalez-Zamora’s statements.

Issue: Whether Mr. Gonzalez-Zamora voluntarily waived his rights pursuant to Miranda?

Held: Yes.

Reasoning: The Court, with Justice Eidvoluntariness to the defense to show coercion on the part of the police. The Court wrote:

In determining whether a waiver is voluntary, ‘the sole concern . . . is the presence or absence of government coercion.’ Significantly, in the instant case, although the trial court determined that the waiver was not voluntary, it failed to find that the police used intimidation, threats, or promises to coerce defendant into making a Miranda waiver. Furthermore, our review of the record demonstrates that there were none. The record is void of any ‘intimidation, misconduct, or trickery’ on the part of the police that would lead us to question the voluntariness of defendant’s waiver.

quoting in part People v. Humphrey, 132 P.3d 352 (2006). Unfortunately, the trial court only focused on voluntariness, not knowing or intelligent waiver. Perhaps, then Mr. Gonzalez-Zamora would have won.

Issue: Whether Mr. Gonzalez-Zamora made his statements voluntarily?

Held: Yes.

Reasoning: Again, the Court reiterated the lack of coercion in the record to support reversing the trial court. The trial court listed a series of problems with the interrogation, and held the prosecution did not meet its burden showing the statements to be voluntary. The Colorado Supreme Court reversed, and reasoned because the record did not show any evidence of coercion, the statements must be voluntary. The Court did not explicitly state it, but the Court shifted the burden to the defense to show involuntariness.  

Colorado Supreme Court criminal law decision 5-9-11

Sanchez-Martinez v. People              Knowing, Intelligent, Voluntary Plea / 35(c) / Prosecution’s so-called ‘right’ to due process

Facts: In 2008, Mr. Sanchez-Martinez pled to a misdemeanor domestic violence (DV) charge. Subsequently, ICE instituted deportation proceedings against Mr. Sanchez-Martinez because of the DV conviction. Thus, Mr. Sanchez-Martinez sought to withdraw his plea based upon Rule 35(c)(2)(V) – newly discovered evidence. The new evidence: a witness who would testify that the complaining witness made up the story to avoid social services from taking her kids (Mr. Sanchez-Martinez claimed he never hit the woman, but that she hit him). Further, in the motion, Mr. Sanchez-Martinez claimed he was unfamiliar with the criminal proceedings, and thus, pled guilty to avoid what he thought would be two years in jail. During the 35(c) hearing, the prosecution went Christopher Darden on Mr. Sanchez-Martinez (Mr. Darden was the litigating genius who asked O.J. to try on the gloves which did not fit; hence, ‘If it doesn’t fit, you must acquit’ – Johnny Cochran). The prosecution here asked questions to which it did not know the answers, had no rebuttal, and could never refute. The prosecutor instead assumed he knew the answers. The prosecutor asked in succession:

District Attorney:

But you pled guilty to this charge in January of 2008?

Sanchez–Martinez:

Yes, because what I wanted to do is I wanted to get out, I wanted to go with my family, I didn't want to lose my job. Before we went into the court they sat me down with the interpreter and the DA or somebody, I think, and they say you're gonna plead guilty, ah huh, yes. That's when I told the judge that I was pleading guilty so he would let me out, and to pay and comply with everything else.

District Attorney:

And the interpreter went through this document with you?

Sanchez–Martinez:

No. No, I—they only asked me to sign it.

District Attorney:

You did sign it?

Sanchez–Martinez:

Yeah, they told me to sign it. They didn't read it to me.

District Attorney:

Did you tell anybody that you needed help reading it?

Sanchez–Martinez:

No, I did not. No, they did not they just gave me the document, interpreter gave me and he said sign here, here and that's—that was it.

Issue: Whether the prosecution has a right to due process and notice that the validity of plea was at issue?

Held: Thankfully, the Court did not turn the purpose of rights (to limit government power) on its head, and grant ‘rights’ to the prosecution. Thus, the Court did not hold or decide the prosecution is entitled to due process and thus, notice. The Court reasoned given the Magistrate’s concerns about the validity of the plea, the Magistrate put the prosecution on notice that the validity of the plea was an issue. The Court reasoned, contrary to the prosecution’s assertion, that the Magistrate did not spontaneously hold a hearing on the validity of the plea because it was the prosecution’s own questioning, not the defense’s, that called the validity of the plea into question (Incidentally, Justice Coats with Justices Rice and Eid joining, dissented. Justice Coats found the whole affair very unfair to the prosecution because lack of notice and because Mr. Sanchez-Martinez just testified. That’s it. The prosecution had no opportunity to rebut his testimony, which Justices Coats, Rice, and Eid thought unfair. Hahahaha…too bad these three do not apply their abhorrence when cops “just testify” and the defense has not meaningful opportunity to rebut.)

Issue: Whether Mr. Sanchez-Martinez entered a knowing, voluntary, and intelligent plea when he pled guilty?

Held: No.

Reasoning: The Court raked Magistrate Bowen over the coals for allowing the Rule 11 plea. The Court found that Mr. Sanchez-Martinez did not understand English, Magistrate Bowen impermissibly relied on an interpreter, that Mr. Sanchez-Martinez did not understand the penalties, his rights, or court proceedings in the United States. Thus, the Court held Mr. Sanchez-Martinez did not knowingly, voluntarily or intelligently waive his rights. 

Colorado Court of Appeals 4-28-11 Criminal Law Decisions

People v. Juarez             Non-Unanimous Verdict / Improperly Polling Jurors / Rule 606(b)

Facts: A jury convicted Mr. Juarez of vehicular homicide, DUI and careless driving. When the jurors first claimed to reach a verdict, the jury convicted Mr. Juarez of vehicular homicide, DUI, and DWAI. The trial court then polled the jury. After Juror 1 responded to the trial court’s first question about verdicts, the trial court told the juror that the jury reached inconsistent verdicts. Juror 1 offered to explain, and the trial court invited the explanation. Later juror 6 and juror 7 also offered up explanations based upon the trial court’s questioning of juror 1. Juror 6 also did not agree with the verdict forms as signed by the foreperson. The trial court sent the jurors back to deliberate with a new set of verdict forms. The jury then came back with verdicts of guilty on vehicular homicide, DUI, and careless driving. 

Issue: Whether the trial court impermissibly inquired into the deliberations of the jury?

Held: Yes.

Reasoning: The CofA initially described why the secrecy of jury deliberations is so sacrosanct, “The secrecy of jury deliberations is fundamental to the American justice system… [Rule 606(b)] protects the integrity of the jury from coercion, potential harassment, or outside pressure, while the jury deliberates and during polling. As such, extensive or coercive questioning of the jurors regarding their deliberative process is improper even if the district court perceives jury confusion regarding the applicable law. Our supreme court has cited with approval cases from other jurisdictions that prohibit inquiry into whether the jury was confused, holding that the issue of whether jurors were confused about the law is an intrinsic part of the jury's deliberative process. If none of CRE 606(b)'s exceptions is met, the district court may not consider juror affidavits or testimony regarding a juror's alleged confusion, mistake, or misinterpretation of the law.” (citations omitted)

The CofA held that Rule 606(b) only allows questioning of jurors on an exceedingly limited basis. Rule 606(b) reads:

(b) Inquiry Into Validity of Verdict or Indictment. Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon his or any other juror's mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith. But a juror may testify about (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. 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 CofA further describe the breadth of the rule, “[i]t would have been hard to paint with a broader brush, and in terms of subject, Rule 606(b)'s exclusionary principle reaches everything which relates to the jury's deliberations, unless one of the exceptions applies.”(citation omitted).

Thus, here the trial court erred in inviting juror 1 to offer an explanation of the inconsistent verdicts. The CofA further found that “the district court set the stage for Juror 6 and Juror 7 to explain their mental processes.” The CofA held through its questioning, the trial court impermissibly inquired into the deliberative process of the jury, and further, impermissibly allowed testimony about the deliberative process of the jury. The CofA found that the jury did not reach unanimous verdicts initially. Moreover, the CofA held that Mr. Juarez’s right to unanimous verdict was a substantial right (and thus could decided the issue for the first time on appeal). Finally, because the trial court impermissibly inquired into the deliberative processes of the jurors, the CofA held the second set of verdicts to be invalid. Thus, the CofA reversed Mr. Juarez’s conviction, and remanded for a new trial

People v. Duran            Lesser Included v. Lesser Non-Included Offenses (Attempted Reckless Manslaughter and Attempted Extreme Indifference First-Degree Murder)

Facts: Two series of shots fired from Mr. Duran his his cohorts into a house killed a woman in a bedroom. The jury found Mr. Duran guilty only of reckless manslaughter and attempted extreme indifference first degree murder. The trial court instructed the jury on extreme indifference first degree murder, and allowed the jury to consider reckless manslaughter, attempted reckless manslaughter, and attempted extreme indifference first degree murder as a lesser nonincluded offenses. The CofA found insufficient evidence to support the reckless manslaughter charge, and vacated that conviction.

Issue: Whether the trial court erred instructing the jury attempted reckless manslaughter and attempted extreme indifference first degree murder as lesser nonincluded offenses when attempted reckless manslaughter is a lesser included offense?

Held: Yes.

Reasoning: The CofA held that because the only difference between attempted reckless manslaughter and attempted extreme indifference is the level of culpability. The trial court instructed the jury wrong. The trial court impermissibly allowed a possible verdict on the greater offense of attempted extreme indifference first-degree murder and attempted reckless manslaughter, and such an instruction might have affected the jury's finding. Thus, the CofA found this to be plain error uninvited by the defense. The CofA stated, "In situations involving a lesser nonincluded offense, a jury may properly convict a defendant of both the original charged offense and the lesser nonincluded offense. However, itis error to instruct the jury on an offense as a lesser nonincluded offense when the offense actually constitutes a lesser included offense." (citations ommitted). Thus, the CofA ordered a new trial.

People v. Durapau            Not Guilty by Reason of Insanity / Sex Offender Registration

Facts: In a first-degree sexual assault case, the trial court found Mr. Durapau not guilty by reason of insanity. At the time of Mr. Durapau’s plea, the law did not mandate sex offender registration if found not guilty by reason of insanity. However, the law requiring sex offender registration changed and applied retroactively.

Issue: Whether someone who’s found NGRI on a sex offense prior to the statutory change must register?

Held: Yes.

Reasoning: The CofA held that the conditional release statute, C.R.S. §16–8–115(4)(a), mandates sex offender registration for anyone found NGRI. Thus, because of the word “shall” in the statute, courts do have discretion to rule otherwise.

People v. Boling            Deferred Juvenile Adjudication and Definition of ‘Conviction’ Under The Sex Offender Statute

Facts: In 1989, as a juvenile, Mr. Boling pled to sexual assault on a child. The juvenile court deferred the adjudication, and Mr. Boling successfully completed the deferred sentence. Almost twenty years later in 2008, Mr. Boling picked up a number of cases, which resulted in a plea in two – one case he pled to an F4 theft and in another he pled to an F5 menacing. The trial court ordered a pre-sentence investigation report. The probation department claimed Mr. Boling had to submit to a sex offender evaluation and subsequent treatment. Mr. Boling objected to both and argued that because the juvenile court dismissed his case, that case could not be classified as a conviction.

Issue: Whether a dismissed case as a result of a successful completion of a deferred adjudication qualifies as a conviction under the statute?

Held: Yes.

Reasoning: The CofA cited C.R.S. §16–11.7–102(2)(a)(II) which reads: “ ‘Sex offender mans any person who is: … (II) Convicted in the state of Colorado on or after January 1, 1994, of any criminal offense, if such person has previously been convicted of a sex offense as described in subsection (3) of this section in the state of Colorado, or if such person has previously been convicted in any other jurisdiction of any offense that would constitute a sex offense as defined in subsection (3) of this section, or if such person has a history of any sex offenses as defined in subsection (3) of this section; Thus, the CofA used this section to hold that Mr. Boling qualified as a sex offender because with his deferred he was a person with a  ‘history’ of sexual offenses. Idiotic holding.

People v. Coughlin            Juror Impairment / Prosecutor Vouching for Witness / Failure to Instruct on Prior Felony/ No Duty To Retreat Instruction

Facts: Tough guy bouncer from a bar picks a fight with Mr. Coughlin’s girlfriend apparently because he had to drive around her, another man, and her boyfriend - Mr. Coughlin - to get into the parking lot of the bar. According to CofA’s recitation of the facts, “the girlfriend ended up falling backwards onto the ground.” At this point, Mr. Coughlin grabbed a knife, and confronted the Bouncer who the CofA protected with initials. The CofA recites the facts where the Bouncer beat Mr. Coughlin in the face and Mr. Coughlin stabbed the bouncer. A jury convicted Mr. Coughlin of attempted second-degree murder and second-degree assault.

Issue: Whether the juror's physical limitations and confusion provided a sufficient basis to challenge the juror for cause?

Held: No.

Reasoning: During voir dire a juror told both the defense and prosecution that he got things easily confused and had some physical problems. Defense Counsel developed two separate bases to challenge the juror – mental incapacity and physical incapacity, and it is clear defense counsel meant to challenge the juror on both bases. However, defense counsel only stated the physical incapacity impairment – not mental. Despite a century of ridding courts of form over substance to gain an upper hand, the CofA found a) it could not rule on the mental challenge for cause because during trial, defense counsel did not raise that with the trial court, and b) the juror physical limitations did not provide a sufficient basis to sustain a challenge for cause.

Issue: Whether the prosecution improperly vouched for a witness?

Held: No.

Reasoning: During questioning of the witness, the prosecution went through the plea agreement, including the requirement to testify truthfully. Defense counsel objected. First the CofA found that although defense counsel stated ‘bolstering’ instead of ‘vouching’ in her objection, the CofA dismissed the prosecution’s whining that the defense did not preserve this issue for review.

            Next the CofA found a split of authority in the federal courts. However, the CofA sided with the position that allows the prosecution to go through the plea agreement, including the condition of truthfulness, but with two caveats:

            (1) the prosecutor may not express a personal opinion about the witness's credibility,

(2) the prosecutor may not appear to possess information unavailable to the jury.

Here the CofA found “If you were to lie about what happened, is that something you would expect us to figure out? Do you think we can tell? You think we would be able to tell if you're not truthful?” a ‘close call’, but did not find that the prosecution vouched for the witness.

Issue: Whether the trial court’s failure to instruct the jury on prior felony convictions constituted reversible error?
Hold: No.

Reasoning: Because the trial court allowed both the defense and prosecution to argue the instruction in closing, the trial court did not err in failing to instruct on a witness's prior felony conviction.

Issue:  Whether the trial court committed plain error in not sua sponte instructing the jury on the plea agreement reached by the witness against Mr. Coughlin?

Held: No.

Reasoning: The trial court did not commit plain error in failing to give, sua sponte, a limiting instruction on the permissible uses of the plea agreement the witneses reached with the prosecution.

Issue: Whether the trial court erred in failing to give a “no retreat” instruction?

Held: No.

Reasoning: Unduly restrictive view and overly legalistic. The CofA held because neither party discussed no-retreat in opening or closing, and because this could be viewed as a defense of others, the jury did not need to decide whether retreating was the better option. Unfortunately, jurors always chime in with an answer of using self-defense only as a ‘last resort’ when questioned about self-defense on voir dire. The CofA’s unrealistically narrow and utterly restrictive holding will inevitably deny a person his/her right to self-defense when the instruction is needed to dispel the juror myth that a person cannot act in self-defense unless retreat is not an option.

People v. Martinez          Criminalist Lab Reports, C.R.S. §16-3-309 / Right to Confrontation

Facts: A jury convicted Mr. Martinez of vehicular homicide. At trial, the trial court admitted lab analysis reports of Mr. Martinez’s blood without the technician who conducted the test. Mr. Martinez objected.

Issue: Whether admitting lab reports from a private facility violated Mr. Martinez’s right to confrontation?

Held: No.

Reasoning: First the CofA agreed with the prosecution’s contention that §16-3-309(5) applies to both private and state run labs – in that the defense must give notice to the lab tech that he/she must testify in person. Further, because Mr. Martinez did not comply with the notice requirements of §16-3-309(5), the state had no obligation to present live testimony. Mr. Martinez argued that he did not knowingly or voluntarily waive his right to confrontation when his trial attorney did not comply with the lab notice requirement. The CofA reasoned, “’[W]hen an attorney fails to comply with the procedural rules set forth in section 16–3–309(5),’ he or she waives a ‘defendant's right of confrontation regardless of whether the attorney knew of or understood the statute or its requirements.’ “ quoting Cropper v. People, ––– P.3d ––––, –––– (Colo. No. 09SC828, Mar. 14, 2011)