June 27, 2011
People v. Santana Burden Shifting
Facts: Mr. Santana did not understand the target demographic for his product, and chose poorly. Thus, Mr. Santana called out to an undercover cop whether he wanted any ‘dope’ - crack. The undercover cop, of course, said sure, and Mr. Santana sold the cop some dope. No one conducted definitive tests on the substance. The prosecution only called the undercover cop and submitted a lab report that claimed the substance to be crack. No lab analyst for the state testified to the contents of the actual report (an error not addressed in the appeal. See Bullcoming v. New Mexico) Nevertheless, a jury convicted Mr. Santana, but the Court of Appeals reversed his conviction. The CofA held that the prosecutor in questioning the defense expert and in closing argument shifted the burden to the defense. The defense expert testified about the drugs – crack. On cross-examination of the defense expert, the prosecution asked the expert if he had the capability to do independent testing on the crack. Answer: yes. The prosecution asked him if given the opportunity whether the expert would have tested the drugs? Answer: yes. Finally, the prosecution asked the expert if he had tested the substance, whether his tests would definitively conclude whether the substance was indeed crack. Answer: yes. According to the Court the prosecution argument went accordingly, “In his closing argument, the prosecutor told the jury that they should not consider closing arguments as evidence, and then proceeded to discuss the evidence in the case, including the defense’s expert witness’s testimony. The prosecutor compared the evidence offered by the prosecution with the evidence offered by the defense’s expert, stating that all the expert did in this case was to review two documents and say that the substance ‘wasn’t absolutely cocaine.’ The expert ‘didn’t tell you about any analysis he did. He didn’t tell you about whether he spoke to’ the undercover officer or chemist who ran the tests.”
Issue: Whether the prosecution through cross-examination of the defense expert and in closing argument improperly shifted the burden?
Reasoning: The Court unanimously held the prosecution did not shift the burden. Justice Martinez wrote the decision. The Court came up with a three-part test to determine if the prosecution improperly shifted the burden. The Court wrote:
When assessing the strength of the prosecution’s burden-shifting actions and whether they have shifted the burden of proof, courts mainly consider the degree to which:
(1) the prosecutor specifically argued or intended to establish that the defendant carried the burden of proof;
(2) the prosecutor’s actions constituted a fair response to the questioning and comments of defense counsel; and
(3) the jury is informed by counsel and the court about the defendant’s presumption of innocence and the prosecution’s burden of proof.
The Court simply reasoned that based upon the totality of the record, the prosecution rebutted the defense implication, and never explicitly argued that the defense had any burden of proof. The Court wrote:
“Indeed, close examination of the entire record shows that the prosecutor’s questions and comments were likely not designed to imply that the defendant bore the burden of proof, but were instead aimed at: (1) clarifying the defense’s expert witness’s testimony; (2) rebutting the implications -- raised by the defense -- that the prosecution failed to offer conclusive test results because those results would exonerate the defendant; and (3) highlighting the strength of the prosecution’s case.”
June 23, 2011
Bullcoming v. New Mexico Confrontation - Crawford v. Washington – Surrogate Lab Tech Testimony
Facts: New Mexico alleged and convicted Mr. Bullcoming of driving while intoxicated (DWI)– akin to driving under the influence in Colorado. At trial, the state did not produce the technician who actually conducted the blood alcohol analysis. Instead, the state had another technician who neither consulted, knew, or could verify the lab report – other than it was an official report. Mr. Bullcoming objected under the Confrontation Clause.
Issue: Whether New Mexico violated Mr. Bullcoming’s confrontation rights by allowing a surrogate lab tech can testify to the results of another lab tech’s report, provide foundation for that report, and admit the report into evidence as a business record?
Reasoning: Justice Ginsberg wrote the decision for the five-member majority, with Justices Scalia, Thomas, Sotomayor, and Kagan joining the majority opinion. Justices Breyer, Alito, Roberts, and Kennedy dissented.
Justice Ginsberg wrote, “We hold that surrogate testimony of that order does not meet the constitutional requirement. The accused's right is to be confronted with the analyst who made the certification, unless that analyst is unavailable at trial, and the accused had an opportunity, pretrial, to cross-examine that particular scientist.”
“Accordingly, the analysts who write reports that the prosecution introduces must be made available for confrontation even if they possess ‘the scientific acumen of Mme. Curie and the veracity of Mother Teresa.’” quoting Melendez-Dias v. Massachusettes, 129 S.Ct. 2527 (2009)(you can always tell a Scalia quote).
People v. Montoya Illegal Sentence / Probation / Work-Release
Facts: Mr. Montoya pled to driving after revocation prohibited, a class six felony. The trial court sentenced Mr. Montoya to 10 months in the work release program to be followed by a period of probation. However, because Mr. Montoya physically could not work, instead of working at a job in work-release, the trial court ordered Mr. Montoya do 10,000 hours of useful public service at the jail while in the work-release program.
Issue: Whether the trial court illegally sentenced Mr. Montoya to a period longer than 90 days jail as a condition of probation?
Reasoning: First, under the clear reading of the work-release statute, the Court of Appeals found that working at the jail and not being released to an outside job does not qualify as “work-release” no matter how generous one were to read the statute. C.R.S. §18-1.3-207. Next, the CofA found that under the probation statute, the Court had no authority to sentence Mr. Montoya to more than 90 days jail and probation. C.R.S. §18-1.3-202. Thus, the CofA held the trial court illegally sentenced Mr. Montoya, and remanded the case. Incidentally, the trial court judge, a former public defender, conformed with the rule that former public defenders appointed to the bench unnecessarily hammer folks at sentencing.
People v. Wilson Competency
Facts: Mr. Wilson fired his public defenders, and proceeded pro se – a wise choice on a first-degree murder case. The trial court appointed advisory counsel, R.W.. At a hearing where Mr. Wilson appeared out of it, the trial court ordered a competency evaluation - over Mr. Wilson’s objection. The state hospital adjusted his medications, and the trial court later found Mr. Wilson competent to proceed. Sometime before trial, Mr. Wilson wised up, and asked for a lawyer, and the trial court appointed advisory counsel, R.W. to now represent Mr. Wilson at trial. Just prior to trial, Mr. Wilson claimed R.W. was using drugs. The trial court found the claims unfounded, but also found a conflict and appointed another lawyer, Mr. Wilson’s third. Again sometime just prior to trial, Mr. Wilson conjured up a conflict, and the trial court found none. Mr. Wilson lost his wisdom, and proceeded pro se. Unfortunately for Mr. Wilson, the prosecution proved its case, and the trial court sentenced him to life. Mr. Wilson filed a direct appeal, did not raise the competency issues, and the CofA affirmed his conviction. Thereafter, Mr. Wilson filed a 35(c) motion claiming ineffective assistance of counsel. The trial court appointed 35(c) counsel, now Mr. Wilson'a fourth lawyer, to prosecute the motion. 35(c) Counsel filed another motion for Mr. Wilson, and the trial court denied all 35(c) issues without a hearing.
Issue: Whether the public defenders appointed to the case originally ineffectively represented Mr. Wilson when they did not seek a competency review prior to Mr. Wilson’s decision to proceed pro se?
Held: No, of course not.
Reasoning: Mr. Wilson wanted the court to find that the public defenders originally assigned to the case had a duty to get a competency review to figure out if Mr. Wilson not only was competent to proceed pro se, but also competent to represent himself in trial. Mr. Wilson cited Indiana v. Edwards, 554 U.S. 164 (2008), where the U.S. Supreme Court held that the trial court in Indiana did not violate Mr. Edwards right to proceed pro se by appointing counsel to represent him. The Court in Edwards found no error where the trial court found Mr. Edwards competent to proceed to trial, but not competent to represent himself. Thus, the Court in Edwards, held that under these facts the right to proceed pro se is not absolute. Here, Mr. Wilson argues that the trial court should have appointed Mr. Wilson counsel because although competent for trial, he was not competent to represent himself at trial. The CofA declined to find any error. The CofA cited Godinez v. Moran, 113 S.Ct. 2680 (1993), where the U.S. Supreme Court held that the competency standard for proceeding to trial, testifying, waiving counsel, etc. is the same standard. Prior to Godinez, Colorado in People v. Arguello, 772 P.2d 87 (Colo. 1989), and other jurisdictions around the nation held that a higher competency standard applied when a person chooses to waive his or her right to an attorney and proceed pro se. Incidentally, Mr. Wilson on appeal sought to fire his appellate counsel and proceed pro se. The CofA declined his request. Clients like this, although exceedingly rare, make me want to choke myself with my own scrotum.
People v. Davis Prosecutorial Misconduct
Facts: During closing argument, the prosecution described the stages a “victim” goes through after an alleged sexual assault. However, neither an expert nor any lay witness provided support for the prosecution’s stage of whatever theory.
Issue: Whether the prosecutor committed prosecutorial misconduct by arguing in closing facts and evidence not in evidence – namely the stages the prosecutor claim a complaining witness goes through after a sexual assault?
Reasoning: First, thankfully, the defense objected and avoided the dread ‘plain view’ review. However, the Court of Appeals refused to review it for constitutional harmless error. The CofA reviewed the issue under a non-constitutional harmless error analysis. The CofA stated the standard as, “Trial error will be disregarded as harmless when there is no reasonable probability that the error contributed to the defendant’s conviction.”
On appeal, Mr. Davis argued the prosecution argued rape trauma syndrome unsupported by any evidence, replete with a slide shows showing the stages of rape trauma syndrome. The state essentially claimed, um, no sir, did not because the prosecutor did not say ‘rape syndrome.’ The CofA wisely saw through the state’s argument, and found that the prosecutor committed prosecutorial misconduct by arguing facts not in evidence. Further, the CofA held there was a reasonable possibility the prosecutor’s misconduct contributed to Mr. Smith’s conviction. The CofA reasoned, “By making such a detailed argument about the supposed ‘stages’ experienced by trauma victims, the prosecutor implied that he had specialized knowledge and expertise in such matters, perhaps derived from his position as a deputy district attorney who might be experienced in dealing with such victims. This argument improperly encouraged jurors to rely on such supposed knowledge and expertise, rather than to limit their deliberation to the facts in evidence and the reasonable inferences therefrom.”
People v. Smith Vehicular Assault - Involuntary Blood Draws
Facts: Seems Mr. Smith had a few too many libations, the police and prosecution claim he then drove, crashed, and hurt two passengers in the car, one seriously. The police ordered the nurse to draw blood from Mr. Smith but never asked Mr. Smith if he consented. Because the officer did not comply with Colorado's statute by first seeking Mr. Smith's consent to the blood draws, the trial court suppressed the blood draw results.
Issue: Whether Colorado’s statutory scheme requires the police to seek consent prior to ordering involuntary blood draws?
Reasoning: The U.S. Supreme Court in Schmerber v. California, 384 U.S. 757, 772, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), held that police can involuntarily draw blood if the police have probable cause to believe the suspect drove under the influence. Colorado codified this language and limited involuntary tests to certain crimes: “No law enforcement officer shall physically restrain any person for the purpose of obtaining a specimen of such person's blood, breath, saliva, or urine for testing except when the officer has probable cause to believe that the person has committed criminally negligent homicide pursuant to section 18-3-105, C.R.S., vehicular homicide pursuant to section 18-3-106(1)(b), C.R.S., assault in the third degree pursuant to section 18-3-204, C.R.S., or vehicular assault pursuant to section 18-3-205(1)(b), C.R.S., and the person is refusing to take or to complete, or to cooperate in the completing of, any test or tests, then, in such event, the law enforcement officer may require a blood test.” C.R.S. § 42-4-1301.1.
Here, Mr. Smith never consented, but the Court highlighted in its recitation of the facts that he never complained, resisted, or attempted to prevent the tests. Justice Martinez in dissent pointed out that the officer, under the clear terms of the statute, must first get a refusal prior to initiating an involuntary blood draw. Unfortunately, only Justice Marquez concurred with his dissent.
People v. Hughes Miranda – Definition of Custody
Facts: In Hughes, the Court also decided People v. Reyes (11SA42). The trial courts in both Hughes and Reyes found that the police held both in custody during an interrogation. In Hughes, the police went to Mr. Hughes’ home on a domestic violence call. The Court states that Mr. Hughes ‘voluntarily’ went to the driveway to meet with two officers while others went inside and interviewed the complaining witness. Of course, in the driveway, the police interrogate Mr. Hughes. In Reyes, the cop claimed Ms. Reyes ran a red light, but when he stopped her he also asked her if she was in the country legally. The trial court found the officer had a reasonable suspicion to stop, but impermissibly held Ms. Reyes in custody when he started interrogating her about her status in this country
Issue: Whether the police held Ms. Reyes or Mr. Hughes in custody during an interrogation?
Reasoning: In Hughes, the Court, in an opinion written by Justice Martinez, highlighted that the trial court stated the officer’s subjective intentions – pretty much a death kneel for any chance Mr. Hughes had for winning. Further, the Court highlighted that the police spoke in conversational tones, did not search or pat Mr. Hughes down, and did not physically restrain him. The problem with this logic is that the Court invites people to attempt to flee before finding custody, which most folks will not do with armed cops all around. Further, although subjective intentions of the officer do not amount to custody, the officer making those intentions known to the person, here Mr. Hughes, does make a huge difference. A point the Court ignores.
In Reyes, the Court simply stated that the trial court assumed Ms. Reyes was in custody due to the traffic stop. The Court ignored the fact that the officer started questioning Ms. Reyes about her status in this country – a subject beyond the scope of the reason to stop her. In the end, the Court may have had a harder time in each case had the trial courts, respectively, justified the reasons for suppressing the statements. However, the Court emphasized that neither trial court’s findings were extensive.
Pellman v. People Position of Trust - Definition
Facts: The prosecution charged and a jury convicted Mr. Pellman of sexual assault on a child by a person in a position of trust. The prosecution alleged the time period to be the summer of 2005 with the complaining witness, L.B., who was 15 at the time and the daughter of a family friend. The Court went to great lengths to explain the friendship between Mr. Pellman’s family and the family of L.B. L.B. was the daughter of a pastor, Mr. Pellman’s friend, and Mr. Pellman previously taught Sunday school at the same church from 2000 to 2003. The Court highlighted horseback riding trips, dinners, amusement park trips, that Mr. Pellman helped the pastor’s kids with homework, and that basically the guy was a good friend. Mr. Pellman never babysat or assumed any actual parental duties. During the summer, L.B. started playing footsie with Pellman under the dinner table, and the relationship escalated to “unlawful sexual contact” three or four times a week during July and August of 2005. L.B. would tell her parents she was going for a run, but would meet Mr. Pellman for these rendezvous.
Issue: Whether the prosecution proved Mr. Pellman was in a position of trust with L.B. when he did not parent her, assume any parental responsibilities, and stopped teaching her two years prior to the sexual relationship started?
Reasoning: The Court overruled in part People v. Johnson, (167 P.3d 207 (Colo.App.2007). In Johnson, the Court of Appeals held that Mr. Johnson could not be convicted of position of trust because his supervision only consisted of a 5-day driving course with the complaining witness. The course ended two months prior to when the sexual relationship started. The CofA in Johnson came up with a two part test, “(1) Was the actor a parent, acting in the place of a parent, or charged with certain enumerated responsibilities for the care, education, welfare, or supervision of a child, for any period of time, no matter how brief?; and (2) Did the actor commit an unlawful act during that period of entrustment?” The Court here in Pellman rejected the first factor but agreed with the second. The Court attempts to differentiate the facts of Johnson and Pellman, and claims to support the result in Johnson. The problem with that analysis is the actual “supervisory role” Mr. Pellman play ended two years, not two months, prior to the initiation of the sexual relationship. To justify its holding, the Court emphasized the friendship between Mr. Pellman and L.B.'s family, an Elitch Gardens amusement park trip where the Court claim he was a “chaperone”, and the pastor’s testimony that he trusted Mr. Pellman with his kids. In the end, simply being a good family friend will can get lumped in under position of trust with this holding. Defense lawyer rule: never, never, ever, never, be alone with any kids under 18 that are not your own. No exceptions.
June 22, 2011
Townsend v. People Escape / Instructions
Facts: On November 5, DOC paroled Mr. Townsend to nowhere – he was homeless. The sentence dictated the parole last only one year. According to the opinion, the parole officer set up a temporary residence at New Genesis, some kind of homeless shelter. Unfortunately, police arrested Mr. Townsend 7 days after being released, and on November 16, the parole office filed a complaint to revoke Mr. Townsend’s parole. After sitting in jail from November 10 to March 3, the prosecution dismissed the new charge, the parole officer dismissed the complaint, and DOC again paroled Mr. Townsend. However, the parole officer did not have Mr. Townsend sign a new parole agreement. The Court points out this homeless barely surviving man “verbally agreed that he understood the terms of the ISP.” Further, the Court states, “Townsend signed a form certifying that he understood the requirements that he report to the parole office and/or his residence of record” to go over the conditions of parole. During the trial, DOC and the prosecution purposely conflated simple parole violations with escape. The trial court was not smart enough to figure out that some conditions simply violate parole and do not amount to an escape whereas others do qualify as escape. For example, if Mr. Townsend actually left the Denver area that would qualify as an escape. However, Mr. Townsend never left Denver, got arrested on the warrant a mere three weeks after being released from jail, and the prosecution never claimed Mr. Townsend left the Denver area.
Issue: Whether the instructions adequately advised the jury?
Reasoning: Justice Bender in dissent best explains the case, "Despite the disconcerting facts of Townsend's trial for felony escape, the majority affirms his conviction. Townsend was convicted of felony escape, which requires a five-year sentence to run consecutively to his revoked parole, under circumstances where: (1) he was not provided notice of which facts would constitute the new crime of felony escape as opposed to which facts would result only in parole revocation; (2) Townsend's parole officers testified that any violation of his ISP parole requirements could constitute felony escape; (3) the trial court's instructions failed to inform correctly the jury as to which kinds of ISP parole violations constitute felony escape; and (4) the prosecutor, in closing argument, repeatedly told the jury that violating any directive of the parole officer, including failing to report to meetings, constitutes the crime of escape. Hence, in my view, these cumulative errors lowered the prosecution's burden of proof and caused an injustice requiring reversal of Townsend's conviction."
Bottom line, in limine the simple violations, and hammer home that anything short of actually leaving the Denver area does not amount to escape. Thus, a parole officer getting stood up for an office meeting is akin to blowing off a a scheduled date. Rude, yes. Escape? No. The parole officer like many spurned suitors never got over his/her hurt feelings. Juries get this, and it wins ISP parole escape cases where the guy is found in the "extended area of confinement."
June 21, 2011
People v. Klinck Miranda – Custody and Voluntariness
Facts: Police go to Mr. Klinck’s home on a domestic violence call. Once there, the police tell Mr. Klinck to stay on the porch while they interviewed Mr. Klinck’s girlfriend, the complaining witness. After interviewing the complaining witness, the police interrogate Mr. Klinck on the porch of his home. Of course, the police claim that Mr. Klinck made incriminating statements during this interrogation on the porch. The police then arrest Mr. Klinck, transport him to the station, Mirandize him, but this time Mr. Klinck asks for a lawyer. However, uninvited, the detectives assigned to the case interrogate Mr. Klinck without a lawyer. Both claimed that neither knew Mr. Klinck previously invoked his right to a lawyer. Unfortunately this time, Mr. Klinck waives his rights and makes more incriminating statements. The trial court suppressed all of Mr. Klinck’s statements. The trial court found that the police held Mr. Klinck in custody during the interrogation on the porch, and that the police violated Mr. Klinck’s right to have an attorney present when they re-interrogated him uninvited after Mr. Klinck asked for a lawyer. Further, the trial court held that all of Mr. Klinck’s statements made after he invoked his right to an attorney were involuntary. On appeal, the defense conceded Mr. Klinck voluntarily made the statements on the porch. Likewise, the prosecution conceded the police violated Mr. Klinck’s rights when they interrogated him after Mr. Klinck asked for a lawyer. Justice Hobbs wrote the opinion for the Court.
Issue: Whether the police held Mr. Klinck in custody when they interrogated him on the porch of his girlfriend's home?
Reasoning: Despite the officer on scene stopping Mr. Klinck from walking with the complaining witness to the squad car, re-directing him back to the house, and telling him to stay on the porch while he interviewed the complaining witness, the Court, nevertheless held, that the police did not hold Mr. Klinck in custody. The Court reasoned that because Mr. Klinck was at his girlfriend’s home, not put into any physical restraints, and the cop claimed to question Mr. Klinck in ‘conversational’ tone, none of what the cop did amounted to a formal arrest - thus, under a simplistic, unrealistic, binary rubric, not custody.
Issue: Whether Mr. Klinck voluntarily made statements despite the police violating his right to have a lawyer present during the interrogation and not ending the interrogation when Mr. Klinck asked?
Held: Yes, the statements are all voluntary.
Reasoning: We’ve come so far afield from the moorings of Miranda, where previously any statements taken in violation of Miranda were presumed to be involuntary. Of course here, the Court found the statements were voluntary. The Court again bought the officer’s claims of speaking in ‘conversational’ tones, and the Court ignored that halfway into the 5-hour interrogation that Mr. Klinck asked to end the interrogation. The Court points out that even though Mr. Klinck became emotional and tearful after asking to end the interrogation, that he did not ask again for the interrogation to stop. Perhaps, and just spitballing here, because the cops did not care the first time he asked?
June 17, 2011
People v. Daly Doctrine of abatement ab initio and Restitution
Facts: A jury convicted Mr. Daly of stalking, and the trial court imposed restitution. Mr. Daly appealed the conviction, but during the pendency of the appeal, unfortunately, Mr. Daly died.
Issues: 1) Does the doctrine of abatement ab initio still exist in Colorado, and 2) if the doctrine does exist, does that also extinguish the restitution order?
Held: Yes, the doctrine of abatement ab initio survives in Colorado, but the restitution order does not get dismissed with the rest of the case.
Reasoning: Back in 1904 the Colorado Supreme Court found that if a person dies while their case is on direct appeal, then the case should be dismissed under a doctrine called abatement ab initio. Overland Cotton Mill Co. v. People, 32 Colo. 263, 265, 75 P. 924, 925 (1904). Under this doctrine, the Federal District Court dismissed the case against Kenneth Lay, he of ENRON fame, after a jury convicted him. Further, unlike U.S. v. Lay, where the trial court had yet to issue an order granting restitution, the restitution in place at the time of Mr. Daly’s case survives. The CofA found a split of authority, and after citing Victim’s Rights, held the restitution order survives even if the case does not. Two interesting facts may separate this case from another that may come up: Unlike in U.S. v. Lay, the trial court granted restitution order and two, imposed it as part of a civil judgment.
People v. Sanchez-Candelaria Speedy Sentencing / Residual Exception to Hearsay / C.R.E. Rule 404(b)
Facts: The prosecution claimed Mr. Sanchez-Candelaria shot his girlfriend in the head with a shotgun, and charged him with 1˚ murder. The jury only convicted Mr. Sanchez-Candelaria of manslaughter. The trial court vindictively then sentenced Mr. Sanchez-Candelaria to the maximum in the aggravated range. However, the trial court delayed sentencing until another felony case resolved itself so that the trial court could sentence Mr. Sanchez-Candelaria in the aggravated range.
Issue: Whether the trial court violated Mr. Sanchez-Candelaria’s right to speedy sentencing when the trial court delayed sentencing until after another felony conviction entered?
Held: Yes – the trial court not only violated the rule mandating speedy sentencing, but the trial court also violated Mr. Sanchez-Candelaria’s constitutional right to speedy sentencing.
Reasoning: The CofA held that putting off the sentencing of a person merely to achieve aggravating factors violates that person’s right to speedy sentencing both under the Constitution and Rule 32(b)(1). The CofA stated, “[T]he trial court delayed sentencing in order to have available the option of a longer sentence than was lawfully possible had it proceeded with sentencing on the originally scheduled sentencing date. We conclude that this reason for sentencing delay was not legally justifiable because it contravenes the General Assembly's intent in enacting section 18–1.3–401(9)(a). That provision states that an enhanced sentencing range may be imposed when, among other reasons, the defendant 'was convicted of any felony in the previous case.' Thus this statute contemplates that a defendant has already been convicted in a previous case when the enhanced sentence is imposed in the present case. Accordingly, we conclude that Sandoval was sentenced in violation of Crim. P. 32(b)(1).”
Further, the CofA found under the four-part test of Moody v. Corsentino, 843 P.2d 1355 (1993), that the delayed sentencing violated Mr. Sanchez-Candelaria’s constitutional right to speedy sentencing. The four factors: (1) the length of the delay, (2) the reasons for the delay, (3) the defendant's assertion of the right, and (4) the prejudice to the defendant.
Other Issues: A number of issues in which the CofA found no error:
1) 404(b) evidence of Mr. Sanchez-Candelaria’s gang dealing – all A-ok! The legal gymnastics to find this evidence relevant in a DV case boggles the mind, but the CofA persevered.
2) Whether the trial court erred in barring the defense from admitting a transcribed police interview of a lay witness under the residual exception to hearsay? (witness unavailable). No. Because the defense sought its admission, the CofA ignored case law under Ohio v. Roberts. The CofA quoted the trial court, “Well, if I allow this, the exception will swallow the rule.” Yes, and prior to Crawford v. Washington, 124 1354 (2004), courts all over the land allowed admission of much less trustworthy testimony when the state proffered it against folks accused of crime. However, where there is no constitutional right at stake (and the government does not possess rights - constitutional or otherwise) or the statements do not qualify as testimonial, Ohio v. Roberts still rules. Crawford, 124 S.Ct at 1374. Thus, the police interrogation of a witness to a crime should provide the court all the trustworthiness it needs to allay its fears the prosecution could not properly cross-examine the witness.
3) The CofA also addressed whether DA committed prosecutorial misconduct by referring to the defense theory as "garbage" and "trash" The CofA found error, if any, harmless.