August 30, 2011

Colorado Court of Appeals - Contempt Reversal for Defense Lawyer in People v. Jones

People v. Jones - re: Sommer Spector            Contempt
To put it succinctly, the trial judge in People v. Jones did not like the aggressive, thorough, and zealous defense of Mr. Jones by Sommer Spector (where the Court of Appeals agreed with Ms. Spector and reversed Mr. Jones’ conviction on 404(b) here: The trial judge went from one incident to a whole host of others that allegedly occurred in front of him and other judges – like a spurned spouse losing an argument. To prove his vindictiveness, the trial judge would not recuse himself from the contempt proceedings against Ms. Spector, refused to let her speak, conducted a kangaroo contempt proceeding, and prior to laying down the sentence on Ms. Spector, the trial judge filed a grievance against her. Further, from what the Court of Appeals highlighted, the trial judge’s behavior is quite unbecoming of someone we must address as ‘Your Honor’. Justifiably, the Court of Appeals slapped down the trial judge. After eviscerating every possible reason the trial judge had for holding Ms. Spector in contempt, the Court of Appeals felt it necessary to state, "To be clear, we do not question the trial judge's integrity. Nor do we question the veracity of his statements denying any ill will toward Ms. Spector. The record here does not clearly show personal enmity on the trial judge's part toward Ms. Spector. But under the circumstances here, assignment of any contempt charge to another judge is necessary to assure that the proceeding both comports with and appears to comport with notions of fundamental fairness deeply rooted in our system of justice.” Hahahaha…

Colorado Court of Appeals criminal law decision 8-18-11 People v. Jones

People v. Jones               Rule 404(b) - Doctrine of Chances and Similarities
Facts: Mr. Jones supposedly sexually assaulted Ms. J.R. a white woman with blond hair. The assault occurred in the early morning hours. Mr. Jones ran consent as a defense. Ms. J.R. did not have any visible injuries, but according to the SANE whore, J.R. had a tear in her vagina that was consistent with consensual and non-consensual sex. The prosecution sought and the trial court admitted two other sexual assaults where Mr. Jones was the alleged assailant, one on I.B. and another on K.U.
The assault on I.B. occurred in Miami just around midnight. I.B. was a white woman blond hair. I.B. claimed she had drinks, went to her hotel room around midnight, and woke up a short time later with an unknown man in her hotel room. She then claimed she “blacked out” after the unknown man put something over her face. According to CofA, three men then carried I.B. out to a car, where one man undressed her, and Mr. Jones (she identified him at trial) sexually assaulted her vaginally and anally, and forced her to perform oral sex. Afterward, three men beat her, stole her jewelry, demanded bank accounts, and “forced her to drink strong alcoholic beverage”.  I.B. claimed the beating was so severe that she needed reconstructive surgery and stitches.
K.U. testified that, while visiting New Orleans, she was walking back to her hotel around 3:00 am when an unknown man (she said at trial it was Mr. Jones) pulled over and offered a ride. She claimed when she got in the car she fell asleep. K.U. then claimed the unknown man drove to an unfamiliar location. K.U. claimed she tried to run, but the unknown man caught her, put his hand over her mouth and vaginally sexually assaulted her. K.U. claimed the assailant was pretty rough, and she ended up with scratches on her back and legs. K.U. is white and apparently blond.
The jury convicted Mr. Jones and the trial court sentenced him to 24 years to life.
Issue: Whether the trial court abused its discretion in admitting the assault on I.B and K.U. under the guise of 404(b)?
Held: Yes.
Reasoning: The CofA went through the four elements of the Spoto/Garner test the prosecution needed to establish in order to admit the evidence:
(1) The evidence relates to a material fact. Here the defense conceded the evidence related to a material fact- whether J.R. consented.
(2) The evidence is logically relevant. The CofA states, “In a sexual assault prosecution, evidence of the defendant's other alleged sexual assaults may be logically relevant under the ‘doctrine of chances.’” In that, “[t]his doctrine posits that evidence that a defendant repeatedly performed an unusual act over time decreases the probability that he acted accidentally or innocently.” ‘The more often the defendant performs the actus reus, the smaller is the likelihood that the defendant acted with an innocent state of mind. The recurrence of repetition of the act increases the likelihood of a mens rea or mind at fault.’” Thus, the other two assaults were logically relevant.
(3) The logical relevance is independent of the intermediate inference that the defendant was acting in conformity with his bad character. If the evidence is logically relevant under the “doctrine of chances”, then the priors  must be: (1) similar to the alleged assault; (2) “the number of unusual occurrences in which the defendant has been involved exceeds the frequency rate for the general population”; and (3) “there is a genuine dispute between the prosecution and the defense over whether the actus reus occurred.“ The CofA emphasized “A dissimilar prior act is not probative under the doctrine of chances because it is the improbability of a like result being repeated by mere chance that gives the other act its probative weight.”
Here, the trial court did a piss poor job of stating its reasons for admitting the evidence and simply admitted the evidence to show “common plan, scheme, or design, and to rebut the defense of consent.” The CofA took great care to skewer this idiotic blanket reasoning (and reasoning DAs use with nauseating frequency). The CofA found if admissible under common plan, scheme, or design, then the evidence must not only be similar in result, “but such occurrence of common features that the various acts are naturally to be explained as caused by a general plan of which the charged crime and the prior misconduct are the individual manifestations.” Further, “to be admissible to rebut the defense of consent, evidence of the prior acts should ‘establish a compelling pattern and remarkable similarity of [the] defendant's sexual misconduct.’” The CofA then listed the dissimilarities: extent of the injuries on J.R. vs. I.B; the amount of force used on K.U. and I.B. vs. J.R.; the CofA pointed out that a group assault I.B. but not K.U. or J.R.; Unlike K.U. and I.B., J.R. was not staying at a hotel. Further, the CofA discounted the similarities, “Most of these similarities—that the women were white and blonde, and were assaulted in the early morning hours after drinking—are common to many sexual assaults and not 'dissimilar from the methods generally used in such an offense.'" Moreover, the assailant in K.U. and J.R. held his hand over their mouths during the assault, but the CofA found this to be an insufficient basis to justify admission of the assault on K.U..
The Court reversed Mr. Jones' conviction and stated, “We also conclude that the district court's abuse of discretion in admitting evidence of the two alleged prior assaults was not harmless. The People presented their case over four days at trial. However, they introduced evidence about the alleged assault on J.R. only on the first day, and used the bulk of the remaining three days to present evidence about the other two alleged prior assaults. There were no witnesses to the alleged assault; indeed, there were no witnesses who even saw defendant and J.R. together. Moreover, the People's case depended on the alleged nonconsensual nature of the sexual intercourse but, as noted, the SANE nurse testified that J.R.'s only visible injury, the tear to her genitalia, was consistent with consensual intercourse. In these circumstances, we conclude that there was a reasonable probability that the Rule 404(b) evidence substantially influenced the verdict. See Yusem, 210 P.3d at 469–70; People v. Novitskiy, 81 P.3d 1070, 1072 (Colo.App.2003) (where the guilty verdict “depended in large part” on Rule 404(b) evidence that the district court improperly admitted to rebut the defendant's defense, the error in admitting the evidence was not harmless). Therefore, we reverse the judgment of conviction and remand the case for a new trial.”
(4) The evidence has probative value that is not substantially outweighed by the danger of unfair prejudice. Given the Court’s finding under the 3rd prong, the Court never got here.

Colorado Court of Appeals criminal law decision 8-18-11 People v. Thomeczek

People v. Thomeczek            Res Gestae / Harassment-VRO  and Lesser-includeds / Proportionality
Facts: According to the CofA, Mr. Thomeczek assaulted his ex-wife and pulled her hair in January. The CofA termed it the ‘January incident’ that led to a no contact protection order. Of course, the ex invited Mr. Thomeczek over while the protection order was still in place. The last time, supposedly Mr. Thomeczek went over to the ex’s uninvited. Upon arrival, Mr. Thomeczek entered, criticized the ex’s outfit, and “hit her hard on the buttocks.” (common folk language: he slapped her on the ass). Later, an argument ensued which prompted the ex call the police. When the police arrived, the ex claimed Mr. Thomeczek also hit her on the head with the phone. Unfortunately, Mr. Thomeczek hid in the garage of the ex, and the police found him. The jury convicted Mr. Thomeczek of burglary and the trial court sentenced him to 12 years.
Issue: Whether the ‘January incident’ constituted res gestae?
Held: Yes.
Reasoning: The CofA batted away any suggestion that this evidence fell under the procedural standards of 404(b), and reasoned:
"Evidence of the January incident and the parties' conduct thereafter was, indeed, necessary to a full understanding of why the victim and defendant may have behaved as they did in the charged incident, and was probative of defendant's intent with regard to the burglary and harassment charges. This evidence would have helped the fact finder to understand why the victim might have admitted defendant into the residence despite the protection order; what his intent was when he entered the residence; what his intent was when he hit the victim hard on the buttocks; and why he threw a telephone at her and told her to call the police."
Issue: Whether harassment is a lesser-included offense of violation of a restraining order?
Held: No.
Reasoning: Because the legislature defined harassment as a specific intent crime and violating a restraining order as a general intent crime, harassment is not a lesser-included offense (failed the same elements test). Thus, Mr. Thomeczek’s convictions for both harassment and violation of the restraining order did not violate the Double Jeopardy Clauses.
Issue: Whether 12 years on a burglary, which carries a presumptive range of 4-12, is disproportionate to the crime?
Held: No.
Reasoning: Because the trial court put cogent reasons on the record and sentenced Mr. Thomeczek within the presumptive range, the CofA found no abuse of discretion in the propriety of the sentence. Further, the CofA found no 8th Amendment violation because Colorado defines burglary as a ‘grave offense’, and the trial court sentenced Thomeczek within the presumptive range.

August 11, 2011

People v. Brown - Colorado Court of Appeals decision 8-4-11

People v. Brown            Sexual Exploitation of a Child / Cop as Expert in Child Pornography / Sufficiency of the Evidence / Rule 403
Facts: During the execution of a search warrant, the police allegedly retrieved pictures from Mr. Brown’s computer. Although Mr. Brown disputed the authenticity, the prosecution claimed, and the jury unfortunately agreed, that the pictures indeed showed real children – not merely computer images.
Issue: Whether, under CRE Rule 403, the trial court erred in admitting the pictures?
Held: No.
Reasoning: The CofA simply held the pictures comprise proof of the alleged crime, and thus, the trial court did not err in admitting the photos. The CofA wrote, “Here, the images were direct proof of an essential element of the charged crimes, and the fact that the nature of the charges may be prejudicial to defendant does not justify exclusion of such relevant evidence.”
Issue: Whether the prosecution presented sufficient evidence that the pictures contained real children?
Held: Yes.
Reasoning: The CofA again disagreed the defesne, and said from viewing the pictures itself, the jury possessed sufficient evidence to convict.
Issue: Whether the trial court erred in allowing the Detective to testify as an “expert” in child pornography?
Held: Wait; is this a child porn case? Then, of course, NO!
Reasoning: Essentially, getting generic b.s. training as a cop, being a cop, and claiming ‘expertise’ from his one-week class, the trial court did not err in allowing the cop to testify as an expert in child porn. The CofA wrote, “Here, we cannot say that the court's qualification of the detective as an expert was manifestly unreasonable, arbitrary, or unfair, in light of the detective's (1) two years with the child abuse unit; (2) classes on investigating sexual exploitation of children cases; and (3) previous handling of approximately a dozen child pornography investigations.” The CofA drew this conclusion despite the fact that the prosecution sandbagged the defense. Here, the prosecution did not endorse cop-hack as an expert prior to trial, provided no expert report, did not disclose the CV of cop-hack, did not disclose the treatises relied upon (pretending there would be any), or prior testimony as an expert (of which there appears to be none).

People v. Palomo - Court of Appeals criminal law decision 8-4-11

People v. Palomo – Costs of Prosecution / Challenge for Cause / Duress
Facts: Essentially, Mr. Palomo and a passenger got into a bar fight with another group of men. The bar fight continued outside, where the passenger told Mr. Palomo to stop his car. After stopping, the passenger got out of the car, and fired three rounds at the other group – grazing one person in the group in the head. The other group then jumped into their car, and chased Mr. Palomo’s car – at some point ramming Mr. Palomo’s car. The police then attempted to stop and contact Mr. Palomo, but after initially stopping, Mr. Palomo kept driving. Hence the prosecution charged him with: F2- Attempted 1˚ Murder; F4 – 2˚ Assault; F5 – Vehicular Eluding; and the sentence enhancer Crime of Violence.
During voir dire a juror, TJ, stated at no point would he take into consideration the mental state of anyone accused of using a weapon during the commission of a crime. The trial court then claimed to have rehabilitated the juror, and denied the defense challenge for cause.  Nevertheless, the jury only convicted Mr. Palomo of vehicular eluding and the lesser non-included, eluding a police officer – a traffic offense.
At sentencing and after the defense made its argument, the prosecution sought and the court granted a motion for costs of prosecution. According to the Court of Appeals, the prosecution incurred almost all of the costs prosecuting the attempted murder and 2˚ assault counts.
Issue: Whether the trial court erred in imposing the costs of prosecution?
Held: Yes.
Reasoning: Finally, an appellate court has balls to reign in these ridiculous motions for costs of prosecution. Here, the Court reasoned that the jury did not buy any of the voluminous testimony the prosecution presented in an attempt to pin the attempted 1˚ murder and 2˚ assault on Mr. Palomo. Thus, the trial court did not have the discretion or authority to impose costs of prosecution on acquitted counts. Hallelujah!
Issue: Whether the trial court abused its discretion in denying the defense’s challenge for cause on juror TJ, who stated bluntly, he would not take into consideration any evidence of mental state or lack there of?
Held: No – through the magic of buying B.S. answers and disregarding the emphatic honesty.
Reasoning: During jury selection, the following colloquy occurred between defense counsel and a juror:
TJ: My position is that it is when you put your hand on the weapon, you take full responsibility for what happens with that weapon. I believe in personal responsibility.
D: Okay. And would that position that you have, and you feel very strongly about, I can see by the way you are talking about it, that you absolutely believe
this would put you in a position where you are not going to make the Prosecution prove a person's mental state, you know what their mental state is?
TJ: No, ma‘am. I don't believe mental state, okay? I believe that the case for mental state is over used.
D: Okay.
TJ: Okay. Mental state doesn't matter. I was mad as hell and pointed a gun to scare somebody off. When I pointed at someone and pulled the trigger, you have to infer, in my opinion, that [I] intended to inflict harm.
The trial court then followed up with the same juror:
C: ... However, the culpable mental state, under the law, is as much an element and a part of the act of the crime as the act itself. Do you understand that, sir?
TJ: Uh-huh.
C: And, you know, I think there has been some issue raised in the questioning regarding mental state. This is not a case in which—in which there is an
assertion of insanity or impaired mental condition, but culpable mental state is as much an element of the offense as any other element of the offense as a matter of law. Would you follow that law or would you disregard the culpable mental state component
of the instruction?
TJ: No. I would follow the law.
The Court of Appeals, like the trial court, turned a blind eye to the obvious, “In our view, TJ's conversation with defense counsel was in the nature of an abstract discussion about personal responsibility and his conversation with the trial court was about the elements of an offense and the obligation of the jurors to follow the trial court's instructions. It is the latter subject that should be the focus of the trial court in its consideration of a challenge to a prospective juror for cause. Although TJ stated that ‘the case for mental state is over used,’ and that ‘mental state doesn't matter,’ when questioned by the court he unequivocally stated that he would both follow the law and not disregard the culpable mental state element of an offense when instructed that it needed to be proved.
Issue: Whether the trial court erred in by not instructing the jury on the affirmative defense of duress?
Held: No.
Reasoning: Bad combo here: 1) Mr. Palomo talked to the police, and 2) talked his way out of any possible chance of asserting the defense of duress. According to the Court of Appeals, “During that interrogation, defendant told police he drove away at his friend's instruction because he wanted an opportunity to dispose of the firearm. Defendant also said: ‘I got kind of scared and I just like panicked, because I was drunk, and then I just took off.’ Defendant did not say that his friend pointed the firearm at him or threatened him with it.” Thus, the CofA reasoned that the trial court committed no error in denying the defense of duress: 1) these two were friends, 2) no dispute between the two; 3) the passenger handed the gun to Mr. Palomo; 4) Mr. Palomo gave the gun back to the passenger – the very person allegedly causing him to act under duress. 

August 9, 2011

Colorado Court of Appeals criminal law decision 7-21-11 People v. Gregg

People v. Gregg            Consolidation / Aggravated Robbery / Sufficiency of the Evidence
Facts: A jury convicted Mr. Gregg of three counts of aggravated robbery. The robberies allegedly occurred over a few months. The prosecution moved to consolidate the three cases. The trial court granted the motion. During the trial the evidence showed on the 2nd and 3rd robberies that the assailant passed a note threatening to kill the teller. The assailant did not possess or pretend to possess a gun, knife or bomb. Instead, the assailant simply kept a hand in his pocket during each episode.
Issue: Whether the trial court abused its discretion when it granted the prosecution’s motion to consolidate the cases?
Held: No.
Reasoning: Colorado Criminal Procedure Rule 13 and 14 allow for joinder and severance. However, prior to granting a motion to join, “the trial court was required to first determine whether the evidence of the aggravated robberies would be admissible in separate trials.” The Court of Appeals then made its own findings: the robberies occurred within months of each other, each involved death threats, in each the assailant passed a handwritten folded note threatening the teller and demanding money. Based upon these findings, the CofA held that the evidence of each robbery would be admissible in the separate cases, and thus, the trial court did not err in joining the cases. The CofA rejected defense arguments that a) the trial court committed reversible error in not making specific factual findings in support of its order to join the cases, and b) that the evidence of guilt on the 2nd robbery tainted the other two robberies because the evidence on the 2nd robbery was much stronger.
Issue: Whether the evidence was sufficient to support aggravated robbery?
Held: Yes.
Reasoning: The Court of Appeals reasoned, “Both tellers testified that after reading defendant's notes, they believed that their lives were in danger. The teller in the second robbery testified that defendant had his right hand in his pocket when he said, ‘I will shoot you.’ The teller in the third robbery testified that defendant approached the counter with both hands in his pockets and kept his left hand in his pocket during the robbery.”

Colorado Court of Appeals criminal law decision 7-21-11 People v. Chavez

People v. Chavez             Challenge for Cause
Facts: A jury convicted Mr. Chavez of various sexual assault on a child counts.  During voir dire defense counsel disclosed the evidence will show that Mr. Chavez also shot someone other than the complaining witness. Defense counsel then followed up with the jurors about whether that evidence would shift the burden to the defense. The CofA recited the following colloquies:
JUROR P.: To answer quite honestly, I feel lack of judgment shown in the shooting would color my opinion. I'd have a hard time getting past it. I'd have to hear evidence, of course, but the lack of judgment is a big thing.... I feel I probably would just tie those together.
DEFENSE COUNSEL: Same question to you I've been asking everyone.
JUROR P.: [Defendant] only had [a] couple points to start with, yeah, to be honest.
DEFENSE COUNSEL: [It would] give [the prosecution] a little advantage, improving the allegations in this case, in your mind?
JUROR P.: Yeah ... I'm really anti-violent, just the ability to pull a trigger to shoot someone, that shows a lot of character. To me it's a big thing.
DEFENSE COUNSEL: So more likely you would think that he is then guilty of sex assault?
JUROR P.: Hard to say without hearing the evidence. Definitely, I would be coloring in that direction.
DEFENSE COUNSEL: Starting off, starting from the beginning?
JUROR P.: I feel that way. After this exchange, one more prospective juror stated he could hold the prosecution to its burden.

The [trial] court then asked, “Anyone [we] haven't spoken to ... that feel you would not be able to—?” JUROR M raised his hand, and then said:
I definitely feel ... it could come down to he said she said. And I agree with the gentleman over here, violent shooting, shooting is a violent act and therefore it would dictate a character trait or behavior or pattern that you know I would essentially be kind of somebody else [sic] a tipping point if it was at that level.

Juror R. also raised his hand and said, “I think you're telling a story here [and] you're leaving one chapter out. To me it's all—that's the book of who the person is.” Defense counsel asked him if “[the prosecution's] burden gets a little bit less because of the shooting,” and Juror R. said, “Yes.”
(Emphasis added)
Issue: Whether the trial court abused its discretion in denying defense counsel’s challenges to Jurors P, R, and M.
Held: Yes.
Reasoning: The CofA did not address the issues related to Juror M because the Court reversed Mr. Chavez’s convictions based upon the bias both Juror P and R evinced against Mr. Chavez.
            The Court emphasized in its ruling that the jurors stated such bias after a “strong statements” of other jurors stating they would be able to follow the Court’s instruction not to use the shooting incident as proof Mr. Chavez committed a sexual assault. Further, the Court highlighted how many times the trial court and defense counsel told the jurors of the prosecution’s burden prior to the above colloquies. Thus, the Court concluded, “These two jurors must have been aware that their views diverged significantly from those of nearly all the other jurors who spoke before they did, and yet they persisted in their pronouncements of bias, thus demonstrating ‘an unwillingness to accept and apply those principles that form the bedrock of a fair trial.’”

August 8, 2011

Colorado Court of Appeals criminal law decision 7-21-11 People v. Esparza-Treto

People v. Esparza-Treto           1˚ Assault - Extreme Indifference / 2˚ & 3˚ Assault and Definition of Deadly Weapon / Merger (Reckless Driving and Vehicular Eluding)
Facts: Mr. Esparza-Treto attempted to flee the state patrol, crashed into another car, and unfortunately, injured both the passenger in his car and the driver of the other car. A jury convicted Mr. Esparza-Treto of 1˚ assault (under extreme indifference), 2˚ assault, 3˚ assault, two counts of vehicular assault, vehicular eluding, and reckless driving, speeding, and violation of a traffic control device.
Issue: Whether the prosecution provided sufficient evidence to convict Mr. Esparza-Treto of 2˚, or 3˚ assault?
Held: No.
Reasoning: The Court formulated a rule as to whether an object may be found to be a deadly weapon. The Court stated, “Thus, the fact that an object is capable of causing serious bodily injury is not alone enough. That an object was capable of producing serious bodily injury ‘would be irrelevant for purposes of section 18–1–901(3)(e) had [the object] not been deployed as a weapon. The defendant need not intend to cause serious bodily injury; he must merely use as a weapon an object or instrument that is capable of causing such injury.’” Here, The CofA reversed the 2˚ assault and 3˚ assault convictions because the Court found Mr. Esparza-Treto did not use his car as a deadly weapon. 
Issue: Whether there was sufficient evidence for a jury to convict Mr. Esparza-Treto of 1˚ degree assault – extreme indifference?
Held: Yes.
Reasoning: The CofA regales us with the Colorado State Trooper tale of chasing Mr. Esparza-Treto through the streets of Grand Junction, Colorado. Further, nothing the CofA cited made this case anymore aggravated than any normal vehicular eluding with injury – dude drove; dude drove fast to get away from the police; dude hit someone. The CofA did not do any thorough analysis of why this situation is any different than those under a vehicular eluding with injury. Lastly, the CofA simply glosses over the fact that Mr. Esparza-Treto attempted to avoid the very car in which he collided. (Thus, Mr. Esparza-Treto did not act with extreme indifference to the sanctity of human life – he tried to avoid hurting anyone. However, this argument did not carry the day). Unfortunately, Mr. Esparza-Treto pulled this stunt in Grand Junction, a community hostile to anyone of Hispanic origin, and that jury convicted him.
Prior to this case, most of the case law under extreme indifference comes from cases where the goal of the assailant is to harm or kill – but the intended target may not always be apparent. See People v. Lee, 914 P.2d 441 (Colo. App. 1995)(firing into a car); People v. Ellis, 30 P.3d 774 (Colo.App. 2001)(shooting into a house); People v. Castro, (657 P.2d 932 (Colo. 1983)(shooting into a bar); People v. Candelaria, 148 P.3d 178 (Colo. 2006)(shooting into a car); People v. Meyer, 952 P.2d 774 (Colo.App. 1997)(torching an apartment building). 
However, the prosecutors in Colorado seemingly all went to the same training, and that stellar brain trust theorized they could start charging vehicular homicides and vehicular eluding with injury cases under a theory of extreme indifference. The judiciary readily avoided the actually problem with this theory. See People v. Reynolds, 252 P.3d 1128 (Colo.App. 2010)(supposed road rage ends in a death sufficient evidence under extreme indifference 1˚ murder).
Issue: Whether reckless driving and vehicular eluding merge?
Held: Yes.
Reasoning: An element of vehicular eluding requires the accused to operate the car in a reckless manner, which is, of course reckless driving. Thus, the convictions for reckless driving and vehicular eluding merge.

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