Colorado Court of Appeals 10-13-11 Criminal Law Decision - People v. Ortega

People v. Ortega            35(c) / F3 Child Abuse / Extraordinary Risk Crimes / Crimes of Violence

Facts: Mr. Ortega pled to a class 3 felony child abuse, which normally carries a sentence of 10-32 years in prison with 5 years of parole. However, Mr. Ortega entered into a plea agreement with a stipulated range of 15 to 20 years in prison. The trial court sentenced Mr. Ortega to 19 years. Subsequently, Mr. Ortega filed a 35(c) claiming the trial court illegally sentenced him. The trial court summarily denied his motion, and Mr. Ortega filed a pro se appeal.

Issue: Whether the trial court imposed an illegal sentence upon Mr. Ortega?

Held: No.

Reasoning: With Judge Taubman as author and Judges Roman and Booras concurring, the Court of Appeals reasoned that because Mr. Ortega pled to an extraordinary risk crime that required a crime of violence sentencing range of 10-32 years, the trial court did not impose an illegal sentence. Further, the sentence of 19 years imposed by the trial court fell within the range agreed upon by Mr. Ortega. Finally, Mr. Ortega signed and initialed the plea agreement evincing that he voluntarily and knowing entered the plea. 

Colorado Court of Appeals 10-13-11 Criminal Law Decision - People v. Berry

People v. Berry             ‘Knowingly’ / Sufficiency of the Evidence / Retaliation Against a Judge

Facts: In the throes of alcohol infused depression and misery, Mr. Berry seeks out a friend to have him drive him to the emergency room. A mental health worker at the emergency room counsels Mr. Berry. The mental health worker did not tell Berry she would report threats to any targets. Nevertheless, the mental health worker told Mr. Berry’s ex, her lawyer, and his divorce case judge that Mr. Berry made threats to them. The mental health worker then committed Mr. Berry on an emergency basis. The police arrested Mr. Berry for allegedly retaliating against the judge. Further, the prosecution charged, the trial court allowed, and a jury convicted Mr. Berry of retaliating against a judge. Mr. Berry argued that he made idle threats and did not know the mental health worker would report any of the threats, including to the judge.

Issue: Whether the prosecution presented sufficient evidence that Mr. Berry retaliated against the judge?

Held: No.

Reasoning: The statute §18-8-615, reads:

“An individual commits retaliation against a judge by means of a credible threat ... if the individual knowingly makes the credible threat:

(I) Directly to the judge; or

(II) To another person:

(A) If the individual intended that the communication would be relayed to the judge; or

(B) If the other person is required by statute or ethical rule to report the communication to the judge.” (Quoting the opinion).

            With Judge Criswell writing the decision and Judges Furman and Richman concurring, the Court of Appeals reasoned because Mr. Berry did not know that the mental health worker had a mandatory duty to snitch him off, he did not knowingly retaliate against the judge. 

Colorado Court of Appeals 10-13-11 Criminal Law Decision - People v. Grassi

People v. Grassi            Probable Cause  & Blood Draws / Fellow Officer Rule

Facts: Previously, a jury convicted Mr. Grassi Vehicular Homicide, manslaughter, DUI and DUI – excessive alcohol. He appealed, and the Court of Appeals remanded the case to determine whether the police had probable cause to draw blood from the unconscious Mr. Grassi. On remand, the trial court held a hearing, and determined that the state patrol did possess enough facts to establish probable cause for the blood draw from Mr. Grassi.

Issue: Whether the state patrol had probable cause to draw blood samples from Mr. Grassi?

Held: Yes.

Reasoning: The Court of Appeals, in an opinion authored by Judge Terry, distinguished this case from People v. Reynolds, 895 P.2d 1059 (Colo.1995), and People v. Roybal, 655 P.2d 410 (Colo.1982). Here, the Court claimed more existed than merely an accident and an odor of alcohol. The Court pointed to the following: no yaw marks existed indicating Mr. Grassi did not apply the brakes; the car went some 200 ft. off of the roadway; the car had no damage or problem that caused the accident; the road was clear, dry, and nothing existed in the roadway to cause the accident; troopers opined that Mr. Grassi's car traveled along the “fog line” (white line) which, they continued, was indicative of someone driving under the influence; Mr. Grassi “still had a strong odor of alcohol three hours after the accident.”

Issue: Whether the “fellow officer rule” applies when the officer taking the blood draw did not speak with the officer who may have information to establish probable cause?

Held: Sure.

Reasoning: If someone, at some time, who is employed by the law enforcement agency possesses sufficient information to establish probable cause, that knowledge, the Court of Appeals theory goes, may be imputed throughout the entire law enforcement agency. Further, now, according to the Court, you can add all the bits of information from each officer to establish, as a whole, the agency possessed probable cause.  The Court quoted People v. Arias, 159 P.3d 134 (Colo. 2007), “The fellow officer rule provides that a law enforcement officer who does not personally possess a sufficient basis to make an arrest nevertheless may do so if (1) he acts at the direction or as a result of communications with another officer, and (2) the police as a whole possess a sufficient basis to make the arrest.” Arias, 159 P.3d at 139. Hence, the officer who ordered the draw of Mr. Grassi’s blood had no clue what the accident reconstructionist would find at the time he ordered a third officer to go to the hospital to draw Mr. Grassi’s blood. Nevertheless, taken as a whole, according to the Court, the state patrol possessed probable cause to order a blood draw.

Colorado Court of Appeals 10-13-11 Criminal Law Decision - People v. Harmon

People v. Harmon            Juror Impartiality

Facts: The prosecution charged and a jury convicted Mr. Harmon of F3 reckless/knowing child abuse resulting in serious bodily injury. During opening statement, the defense hinted that at most negligence occurred, and in closing argued for acquittal of both the charged crime and the lesser negligent child abuse. During the first day of trial, a juror sent out a note which read, “I wish to ask why it is necessary to spend all this time calling witnesses and going round & round on points and facts that both sides agreed to in their opening remarks. It would seem that the disagreement is only over what level of guilt is indicated. Can not  [sic] the rest be stipulated? Can we not focus on the distinctions of motive and actions?” Instead of dismissing the juror or declaring a mistrial, as the defense requested, the trial court did nothing.

Issue: Was the trial court under some duty to correct the misapprehension of the juror regarding the guilt of Mr. Harmon prior to jury deliberations?

Held: Yes.

Reasoning: The Court of Appeals held that when the trial court did absolutely nothing to correct the juror, the trial court deprived Mr. Harmon of his right to due process and a fair trial. Thus, the Court of Appeals reversed Mr. Harmon’s conviction, and remanded the case for re-trial. The Court of Appeals gave a non-exhaustive list of actions the trial court might have taken:

Without intending to provide an exhaustive list

as to what corrective action the trial court might

have taken here, we note that the court might have

(1) spoken to the jurors, (2) advised them that it

had received a note suggesting possible confusion

regarding Harmon's opening statement, (3) reminded

them that Harmon had asserted that he was not

guilty, that he must be presumed innocent, and that

the burden of proof remained on the prosecution,

and (4) inquired as to whether any of them would

have difficulty affording Harmon, until the end of

trial, the presumption of innocence and requiring

the prosecution to prove Harmon's guilt beyond a

reasonable doubt. The court also could have reminded

the jurors that the opening statements of counsel are

not evidence. See CJI–Crim. 1:03 (1983). And the

court could have reiterated its direction to the jury that

it must consider all of the evidence produced during

the trial and determine the facts based on that evidence.

Alternatively, the court could have identified and

dismissed the juror who sent the note and substituted

one of the two alternate jurors. In the circumstances

presented here, we conclude that the failure to take any

such corrective action was error.

Colorado Court of Appeals 10-13-11 Criminal Law Decision - People v. Mendoza

People v. Mendoza            Sexually Violent Predator            

Facts: The prosecution charged Mr. Mendoza with an F4 sexual assault on a child, five counts of F3 sexual assault on a child by a person in a position of trust, and an F3 sexual assault on a child as part of a pattern. Mr. Mendoza had a good defense lawyer who got the prosecution to offer and him to take the F5 - attempted sexual assault on a child. Subsequent to the plea, Mr. Mendoza completed a presentence investigation and sex offender evaluation. The evaluation came back designating Mr. Mendoza a sexually violent predator. Mr. Mendoza challenged the SVP statute under various constitutional grounds.

Issue: Whether the SVP statute violates Equal Protection or Due Process?

Held: No.

Reasoning: Essentially, because the Court of Appeals bought the fiction that sex offenses get under reported, the SORS score, which accounted for the fictional under reporting, did not violate Mr. Mendoza’s rights  (fiction because the “research”,based upon political agendas and prosecutorial fantasies, claims to know what is unknowable, that SEX CRIMES GET UNDERREPORTED!!! the capitalization and exclamation make it so!).  Essentially, the Court of Appeals adopted the HANDBOOK:

Because violent crimes are almost twice as likely to

be reported to law enforcement compared to sexual

crimes, and because research has found that only

43 percent of reported sex crimes against adults

result in an arrest, and fewer still in prosecution

and conviction, the [Division's Office of Research

and Statistics] uses violent arrest as the recidivism

measure in sex offender studies. The use of violent

crime as an outcome measure is a reasonable proxy,

as these crimes have a significant impact on public

safety and, in the case of sex offenders, may have a

sexual component or motivation.

Due Process: The Court of Appeals did not care to actually look at how unfair, inaccurate, suspect, and wildly subjective the SVP designation was in Colorado, and thus, the Court of Appeals denied Mr. Mendoza’s procedural due process claim. Accordingly, the Court of Appeals affirmed the trial court’s finding Mr. Mendoza as a sexually violent offender.

Colorado Court of Appeals 10-13-11 Criminal Law Decision - People v. Cordova

People v. Cordova            Harmless Error vs. Abuse of Discretion review

Facts: A jury convicted Mr. Cordova of attempted murder. The assailant cut the complaining witnesses during a fight outside a bar between Mr. Cordova along with his friend and the two complaining witnesses. An arrest warrant issued, and some eleven days later, the police stop Mr. Cordova, search him, and search his SUV.  During the searches of Mr. Cordova and his SUV, the police recovered some knives. Later, at a motions hearing, the defense conceded the police did not violate the Fourth Amendment in either search. However, defense counsel then moved to exclude the knives. The defense argued because the prosecution conducted no forensic testing on the knives to discern whether any of the seized knives cut either of the complaining witnesses, admission of the knives represented irrelevant, prejudicial, inadmissible character evidence. However, according to the Court of Appeals, the motion upon which raised the issue did not specifically cite “due process”. During trial, Mr. Cordova pinned the knife cutting on his friend. He lost, and on appeal, the defense argued admission of the knives violated Mr. Cordova’s due process because the admission denied him a fair trial.

Issue: Whether harmless error or abuse of discretion is the appropriate review standard?

Held: Abuse of discretion.

Reasoning: On appeal, the defense couched the issued under due process requiring the more exacting constitutional harmless error analysis. However, the Court of Appeals reasoned that because the defense could neither point to where in the record Mr. Cordova raised the issue under due process nor did the defense motion cite due process, the Court could only analyze the issue under the more lenient abuse of discretion standard applied to all evidentiary rulings.  Of course, then, the Court of Appeals reasoned that the trial court did not abuse its discretion because a knife on Mr. Cordova's person and a boatload of knives in his truck provided all the relevance the Court of Appeals needed.

Colorado Court of Appeals 10-13-11 Criminal Law Decision - People v. Holt

People v. Holt            C.R.E. Rule 606(b) / Extraneous Information and Jury Verdicts           

Facts: An idiotic juror opined during deliberations that anyone who gets convicted of vehicular eluding gets a “slap on the wrist”, and that he/she/it knew this from personal experience. Further, during deliberations, several jurors either read or someone told them about the dictionary definition of  “elude”. The trial court held a hearing pursuant to Rule 606(b), and vacated the conviction. Carol Chambers, the DA in Arapahoe, appealed.

Issues: Whether the extraneous information prejudiced Mr. Holt and compromised the verdict?

Held: No.

Reasoning: Under Rule 606(b) the trial court’s inquiry into the validity of the jury verdict is limited to three situations:

(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.

            Moreover, the rule states, “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 Court of Appeals first dealt with the juror “slap on the wrist” opinion. The Court found the juror’s statement did not amount to extraneous information because it was within the juror’s personal experience. The Court ignores the fact that most jurors would have no such knowledge, that the juror was factually wrong, and that this “personal knowledge” dealt with sentencing, which is wholly irrelevant as to whether Mr. Holt committed a crime. Further, its not hard to figure how this went – the juror made the statement because someone else was holding out for either a lesser or a not guilty. Thus, the juror reached to this inaccurate statement to persuade another juror or jurors to convict. Nevertheless, the Court of Appeals, closes its eyes to reason, and finds this information is not extraneous, and thus not prejudicial.  

            Secondly, the Court of Appeals held that reading or hearing the dictionary definition of elude also did not amount to extraneous prejudicial information.  The prosecution conceded the information qualified as extraneous, but that the dictionary definition did not prejudice Mr. Holt. The Court of Appeals reasoned because the defense did not provide the definition given to the jurors during deliberations, the defense did not carry its burden to prove prejudice. Thus, the Court of Appeals re-instated Mr. Holt’s convictions.

            The seminal case regarding Rule 606(b) is probably now People v. Harlan 109 P.3d 616 (2005). In Harlan, during the penalty phase of a death penalty case, a juror brought a bible into the deliberation room. Further, the juror possibly influenced other jurors. Specifically, the juror sought guidance from the bible in deciding whether to impose a life or death sentence for Mr. Harlan, and told at least one other juror that the Bible commands death. The trial court and subsequently, the Colorado Supreme Court held that extraneous information prejudiced Mr. Harlan, and compromised the verdict. The Colorado Supreme Court vacated the death sentence.

Colorado Supreme Court decision 10-24-11 People v. Gabriesheski

People v. Gabriesheski            Attorney-Client Privilege / Social Worker Privilege

Facts: Typical scenario: teenage girl accuses step-dad of sexual assault; Mom thinks her daughter made up the false allegations to get back at herself and the step-dad for their attempts to raise the kid. Social Services got involved, and filed a D&N with Mom as respondent. During the pendency of the cases, the Mother and the teenager argue about the lies the teenager’s told. During this argument, the teenager confesses that she lied about the allegations. As we can never let go of a good, juicy, false accusation, the DA wanted the GAL and social worker to testify to show that Mom coerced and pressured the teenager to recant. (An argument hardly presents the hallmarks of ‘coercion’).

The defense filed two motions in limine – one barring introduction of the teenager’s statements to the GAL from the D&N under both Rule 1.6 of the Professional Rules of conduct and C.R.S. § 13-90-107 - Who May Not Testify Without Consent. The second motion in limine sought to bar the mother’s statements to the social worker under C.R.S. § 19-3-207 - Inadmissibility of Certain Evidence. A ballsy District Court granted both motions. The DA then claimed they could not proceed, and the Court dismissed the case. The DA then sought appeal of the Court’s orders barring introduction of the aforementioned statements. The Court of Appeals, with equal courage, affirmed the trial court. Moreover, regarding the statements to the social worker, the Court of Appeals went one better, and found the Social Worker Privilege under §13-90-107(1)(g), also supported the trial court’s ruling.

Issue: Whether Attorney/Client privilege or Rule 1.6 (confidentiality) barred the GAL from testifying about the teenager’s statements in the step-dad’s criminal case?

Held: No.

Reasoning: While admitting that the only people who can qualify to be GALs are licensed attorneys and that those GALs must perform typical duties of a lawyer in the role of GAL (e.g. examination of witnesses), the Court held the attorney/client privilege does not exist with a GAL. Simply put, the GAL is not sought to advise or counsel the client, but according to the Court, stands to present the best interests of the child. Justice Coats, unsurprisingly, authored the decision, and Justice Martinez dissented with Chief Justice Bender joining the dissent.

Issue: Whether §19-3-207 or §13-90-107(1)(g) barred the social worker from testifying about the Mother’s statements in the step-dad’s criminal case?

Held: No.

Reasoning: The Court reversed the Court of Appeals, and found the trial court did not make sufficient findings to support exclusion of the testimony under either §19-3-207 or §13-90-107(1)(g). Under §19-3-207, the Court stated that to justify exclusion, the trial court must find that the respondent made statements in compliance with court treatment orders.  Under §13-90-107, the Court punted and reversed the Court of Appeals because the trial court never addressed exclusion of the testimony under this statute.

SIDE COMMENT: The DA claimed she could not proceed without these statements from the GAL and social worker. However, at most, these statements represent rebuttal evidence, bolstering evidence, or extraneous evidence about a recanting witness. Nothing barred the prosecution in its case-in-chief from going forth, and impeaching the teenager with her original accusations - should the teen actually recant on the stand. Further, nothing prevented the DA from being a good trial lawyer and examining the teenager and the mother about the circumstances surrounding the supposed coercion or pressure to recant. Yet, the Colorado Supreme Court reached down to rule upon seemingly innocuous, extraneous issue in a weak case to protect and save an incompetent DA who obviously cannot litigate a simple speeding case. However, no one complains about this kind of judicial activism.

Colorado Supreme Court decisions 9-12-11 People v. Lewis

People v. Lewis            2˚ Kidnapping with Sexual Assault and Sexual Assault  / Double Jeopardy and Multiple Punishments

Facts: A jury convicted Mr. Lewis of three counts of kidnapping and three counts of sexual assault for three separate complaining witnesses. The sexual assault convictions for each kidnapping conviction upped the kidnapping conviction from a class four felony to a class two felony. To be clear, the DA alleged only one sexual assault on each kidnapping victim. The trial court sentenced Mr. Lewis separately on each sexual assault and kidnapping charge, and ran each kidnapping conviction consecutive to the sexual assault conviction – despite that the facts for the sexual assault and the sexual assault in the kidnapping were exactly the same set of facts.

Issue:  Whether the separate convictions and sentences for sexual assault and kidnapping violate the Double Jeopardy Clauses?

Held: No.

Reasoning: The Colorado Supreme Court held that because the statute and elements defining kidnapping did not include all the elements of the sexual assault of which the jury convicted Mr. Lewis, the trial court did not err in imposing separate sentences. Simply stated, Colorado uses the simple elements test to determine whether an offense can be classified as lesser-included; thus, if the greater offense contains every element of the lesser offense, then the lesser offense is classified as lesser-included. Further, the Court reasoned only lesser-included offenses merge for sentencing purposes under the Double Jeopardy Clauses.

The Court spent some time discussing other jurisdictions treatment of lesser-included offenses. One approach, the same facts approach, does not compare the elements by rote, but holds that the offenses would merge if the same facts proven at trial established the offenses simultaneously. The Court, with Justice Coates – former DA - writing for the majority, found the analysis under the same-facts approach too taxing, and declined to adopt it in Colorado.

Therefore, in Mr. Lewis’s case, because the kidnapping statute did not delimitate a specific sexual assault, but included any sexual assault, the sexual assault and kidnapping did not merge. Thus, the trial court did not violate the Double Jeopardy Clauses by sentencing Mr. Lewis separately on each offense.

Colorado Supreme Court decisions 9-12-11 People v. Pickering

People v. Pickering                   Self-Defense and Reckless Manslaughter

Facts: A jury found Mr. Pickering not guilty of second-degree murder, but found him guilty of manslaughter. Mr. Pickering ran self-defense at trial. The Court of Appeals reversed, and held the trial court shifted the burden when it instructed the jury on how self-defense and the manslaughter charge related to each other.

Issue: Whether the trial court shifted the burden to the defense when it gave the following instruction to the jury, “the people do not bear the burden of proving beyond a reasonable doubt that the defendant did not act in self-defense with respect to the reckless manslaughter charge.”

Held:  No.

Reasoning:  Justice Rice wrote the majority opinion, and really did nothing more than state the following in her reasoning:

“The General Assembly addressed the issues raised in Fink by enacting section 18–1–704(4). 4 The first clause of section 18–1–704(4) codifies Fink in part, requiring trial courts, in accordance with the United States Supreme Court's holding in Martin v. Ohio, 480 U.S. 228, 233–34, 107 S.Ct. 1098, 94 L.Ed.2d 267 (1987), to permit defendants accused of crimes to which self-defense is not an affirmative defense—i.e., those involving recklessness, extreme indifference, or criminal negligence—to nevertheless present evidence of self-defense. The second and third clauses abrogate Fink to a limited extent by requiring trial courts to instruct the jury in such cases regarding the law of self-defense and to explain to the jury that it may consider evidence of self-defense in determining whether a defendant acted recklessly or with extreme indifference or with criminal negligence. Finally, the fourth clause, at issue here, clarifies that the self-defense law instruction required in such cases is not an affirmative defense instruction and that the prosecution does not bear the burden of disproving

self-defense.”

Justice Martinez, with Bender and Hobbs dissented. In Justice Martinez’s view, the instruction shifted the burden and misled the jury. Justice Martinez wrote:

The majority does not require that trial courts give this instruction, and neither does the statute. Section 18–1–704(4) requires trial courts to: (1) allow defendants to present evidence of self-defense; (2) give a “self-defense law instruction” where evidence of self-defense is presented; and (3) inform the jury that it may consider self-defense evidence “in determining whether the defendant acted recklessly, with extreme indifference, or in a criminally negligent manner.” In contrast, although the statute states the prosecution has no burden to disprove self-defense, it does not require that juries be so informed: “[T]he self-defense law instruction shall not be an affirmative defense instruction and the prosecution attorney shall not have the burden of disproving self-defense.”

(citations omitted).

Colorado Court of Appeals 9-15-11 Criminal Law Decision

People v. Gibbons           Modified Allen Instruction /  Time Fuse Instruction

Facts: The jury came back and said it was deadlocked. The trial court read the modified Allen instruction to the jury and told them to deliberate for another hour. The trial court stated in an hour it would check and see where the jury was at at that time. The jury then convicted Mr. Gibbons of theft by receiving and second-degree perjury.

Issue: Whether the hour time check stated by the trial court amounted to an impermissible ‘time-fuse’ instruction?
Held: No.

Reasoning: The Court of Appeals reasoned that by telling the jurors that it would check back with them in an hour, the trial court did not coerce the jury into its verdict. Unlike Allen v. People (where the trial court told the jury 15 more minutes and it was going to declare a mistrial), that the trial court did not give the jury a coercive time fuse instruction.

Colorado Court of Appeals 9-15-11 Criminal Law Decisions

People v. DeWitt            Right To Bear Arms / Affirmative Defenses / Possession of a Weapon by a Previous Offender

Facts: The prosecution charged Mr. DeWitt with possession of a weapon by a previous offender. The trial court in gun toting, military loving, red-neck hugging Colorado Springs denied Mr. Dewitt an instruction on the Right to Bear Arms as an affirmative defense. Mr. DeWitt testified that he carried the guns for self-defense.

Issue: Whether the trial court erred in denying Mr. DeWitt an instruction on the Right to Bear Arms as an affirmative defense to possession of a weapon by a previous offender?

Held: Yes.

Reasoning: A) The Court of Appeals found that the Right to Bear Arms under the Constitution is indeed a defense; B) Mr. DeWitt’s testimony provided more than the scintilla of evidence needed to justify instructing the jury on the Constitutional affirmative defense of Right to Bear Arms; C) This holding is completely consistent with People v. Barger, 732 P.2d 1225, 1226 (Colo.App.1986). In Barger, the Court held the offer of proof insufficient to justify the instruction. Here, Mr. DeWitt testified. Nice work trial attorney, whomever you may be.