November 25, 2011

Colorado Court of Appeals - 11-23-11 criminal decision - People v. Mosely

People v. Mosley                        Speedy Trial
Facts: A jury convicted Mr. Mosely of multiple counts of sexual assault on a child. A panel of the Court of Appeals reversed the conviction, and sent the case back to the trial court for a re-trial. When the trial court re-set the case for trial, the trail court set it beyond the six-month deadline from the mandate required by C.R.S. § 18-1-405(2). The trial court received the mandate on September 19, 2007, and thus, according to subsection 2, the trial must commence by March 19, 2007. However, the trial court continued the case for appearance of counsel to October 22 and 25, 2007. On October 29, 2077, Mr. Mosley waived his right to speedy trial. Based upon the waiver, the trial court determined that speedy ended on April 29, 2008, and re-set the trial on April 8, 2008. On March 31, 2008, the prosecution moved to continue the trial. Over the objection of the defense, the trial court granted the continuance, and moved the re-trial to June 17, 2008. The Court of Appeals noted over and over that defense counsel acquiesced to the application of the time exclusions found in C.R.S. § 18-1-405(6), even though the plain language of C.R.S. § 18-1-405(2) does not allow any exclusions of time from the six-month speedy trial period. Subsequent to the mistrial, defense counsel argued the explicit language of C.R.S. § 18-1-405(2) mandates dismissal – the first time defense counsel argued subsection 2 according to the Court of Appeals. The trial court agreed, and dismissed the case.
Issue: Whether the plain language of C.R.S. § 18-1-405(2) - “If trial results in conviction which is reversed on appeal, any new trial must be commenced within six months after the date of the receipt by the trial court of the mandate from the appellate court.” - is ambiguous?
Held: Inexplicitly, yes.
Reasoning: The Court found the language to be ambiguous because C.R.S. § 18-1-405(2) left the accused without a remedy if the trial court exceeded the six-month period required by statute. Thus, the Court claimed it needed to give meaning to the subsection, and in doing so, read all the exclusions of time found in C.R.S. § 18-1-405(6) into C.R.S. § 18-1-405(2). Thus, the Court of Appeals reversed the trial court's ruling, and reinstated the charges against Mr. Mosely. The Court completely avoided the jurisdiction issue – that the legislature did not use ambiguous language because the trial court loses jurisdiction if it does not hold the re-trial within six months. Instead, the Court re-wrote C.R.S. § 18-1-405(2) to be complicated and weaselly, and hence, identical to C.R.S. § 18-1-405(1). 

C.R.S. § 18-1-405(1) reads, “Except as otherwise provided in this section, if a defendant is not brought to trial on the issues raised by the complaint, information, or indictment within six months from the date of the entry of a plea of not guilty, he shall be discharged from custody if he has not been admitted to bail, and, whether in custody or on bail, the pending charges shall be dismissed, and the defendant shall not again be indicted, informed against, or committed for the same offense, or for another offense based upon the same act or series of acts arising out of the same criminal episode.” Thus, C.R.S. § 18-1-405(1) explicitly contains all the exclusions of time in C.R.S. § 18-1-405(6), which reads:
In computing the time within which a defendant shall be brought to trial as provided in subsection (1) of this
section, the following periods of time shall be excluded:

(a) Any period during which the defendant is incompetent to stand trial, or is unable to appear by reason of illness or physical disability, or is under observation or examination at any time after the issue of the defendant's mental condition, insanity, incompetency, or impaired mental condition is raised;
(b) The period of delay caused by an interlocutory appeal whether commenced by the defendant or by the prosecution;
(c) A reasonable period of delay when the defendant is joined for trial with a codefendant as to whom the time for trial has not run and there is good cause for not granting a severance;
(d) The period of delay resulting from the voluntary absence or unavailability of the defendant; however, a defendant shall be considered unavailable whenever his whereabouts are known but his presence for trial cannot be obtained, or he resists being returned to the state for trial;
(e) The period of delay caused by any mistrial, not to exceed three months for each mistrial;
(f) The period of any delay caused at the instance of the defendant;
(g) The period of delay not exceeding six months resulting from a continuance granted at the request of the prosecuting attorney, without the consent of the defendant, if:
(I) The continuance is granted because of the unavailability of evidence material to the state's case, when the prosecuting attorney has exercised due diligence to obtain such evidence and there are reasonable grounds to believe that this evidence will be available at the later date; or
(II) The continuance is granted to allow the prosecuting attorney additional time in felony cases to prepare the state's case and additional time is justified because of exceptional circumstances of the case and the court enters specific findings with respect to the justification;
(h) The period of delay between the new date set for trial following the expiration of the time periods excluded by paragraphs (a), (b), (c), (d), and (f) of this subsection (6), not to exceed three months;
(i) The period of delay between the filing of a motion pursuant to section 18-1-202(11) and any decision by the court regarding such motion, and if such decision by the court transfers the case to another county, the period of delay until the first appearance of all the parties in a court of appropriate jurisdiction in the county to which the case has been transferred, and in such event the provisions of subsection (7) of this section shall apply.

November 23, 2011

Colorado Court of Appeals 10-27-11- criminal decision - People v. Warrick

People v. Warrick     Police Booking Reports and Mittimus - Hearsay, Authentication and Confrontation Clause / Cops as Experts
Facts: Real simple: the trial court admitted the mittimus and booking reports in a possession of a weapon by a previous offender, and the cop testified to an arguable opinion.
Issue: Whether the trial court abused its discretion when it found that the public records to be sufficiently authenticated?
Held: No.
Reasoning:  CRE Rule 901 governs authentication. As the Court of Appeals stated, “Whether a proper foundation for authenticity has been established is a
matter within the sound discretion of the trial court, whose decision will not be disturbed absent an abuse of discretion. Accordingly, a trial court should allow physical evidence to be presented to the jury if a reasonable jury could decide the evidence is what its proponent claims it to be.” People v. Crespi, 155 P.3d 570, 573-74 (Colo.App.2006). First, the Court of Appeals, with conclusory reasoning, held that the booking reports qualify as public records under CRE Rule 902. Moreover, according to the Court of Appeals, to admit public records the proponent need only provide authentication. The certification from the records custodian on the booking reports provided all the authentication the Court of Appeals needed. Under CRE Rule 104(a), the trial court itself is not bound by the rules of evidence to determine authenticity. Thus, the trial court may rely on the certification on the documents despite the fact that the certification is clearly hearsay.
Issue: Whether the trial court abused its discretion when it admitted the mittimus of a prior conviction to be admitted despite the lack of attestation by the signer?
Held: No.
Reasoning: Under CRE Rule 902(1), if the mittimus bears the seal and a signature of attestation, the record qualifies as self-authenticating. Here, the mittimus bore the seal, signature, and certification according to the Court of Appeals. Thus, the trial court did not abuse its discretion in admitting the mittimus.
Issue: Whether the trial court abused its discretion in admitting booking reports and mittimus under CRE Rule 803(8)?
Held: No.
Reasoning: Under CRE Rule 803(8)(A), the mittimus and booking records a) raise no trustworthiness issues and b) each sets forth activities of the District Court and the Sheriff’s Department respectively. Thus, under Rule 803(8)(A), the trial court did not abuse its discretion. Further, Rule 803(8)(B), specifically prohibits admission of police records. However, the Court of Appeals followed the federal courts, and reasoned the booking records to be admissible because police routinely prepare the ‘non-adversarial’ booking reports.
Issue: Whether admission of the booking reports and mitt violated the Confrontation Clause?
Held: No.
Reasoning: Simply put, the Court of Appeals held that the mittimus and booking reports did not amount to ‘testimonial’ evidence under Crawford v. Washington, 541 U.S. 36 (2004).
Issue: Whether the cop testified as an expert?
Held: No.
Reasoning: The Court assumed what the cop offered qualified as an opinion, but then found that opinion admissible under CRE Rule 701 – Lay Witness Opinion. 

Colorado Court of Appeals 10-27-11 - criminal decision - People v. King

People v. King            Strip Searches and Search Warrants / No Knock Execution of a Warrant
Facts: Police claim Mr. King dealt drugs, and the judge signed a warrant. SWAT Team douche bags broke into Mr. King’s room unannounced to execute a warrant. The warrant did not expressly authorize a no-knock execution. Nevertheless, the subsequent search turned up no evidence of drug dealing. The police found only paraphernalia – two pipes, a box of baggies, and a copper scrubber. As part of the warrant, the SWAT Team conducted a strip search of Mr. King. Unfortunately for Mr. King, he had a baggie in his rectum that contained 20 smaller baggies of cocaine.
Issue: Whether exigent circumstances existed to justify the no-knock execution of the warrant?
Held: Yes.
Reasoning: The Court of Appeals reasoned exigent circumstances existed because Mr. King dealt drugs before, drugs could be easily destroyed, and the motel room had a bathroom in which drugs could be easily disposed.
Issue:  Whether ordering Mr. King, who stated was not wearing any underwear, to drop his trousers amounted to a strip search?
Held:  Yes.
Reasoning: The Court of Appeals looked to a Colorado statute to determine whether the police subjected Mr. King to a strip search. The Court stated, “Colorado criminal statutes define a strip search as 'having an arrested person remove or arrange some or all of his or her clothing so as to permit a visual inspection of the genitals, buttocks, anus, or female breasts of such person.' " C.R.S. § 16-3-405(2). The Court of Appeals reasoned the search became a strip search when the police forced Mr. King to drop his trousers after he informed them he was not wearing underwear.
Issue: Whether the strip search of Mr. King’s person went beyond the scope of the search warrant?
Held: Yes.
Reasoning: The Court of Appeals found this issue, whether search warrants include strip searches, to be one of first impression in Colorado. Nevertheless, the Court of Appeals reasoned, “A search of a person may range from a pat-down to a full search of the person to a more intrusive strip search. Strip searches are different in nature, quality, and intrusiveness from full searches of a person's body. Safford Unified School Dist. No. 1 v. Redding, ––– U.S. ––––, ––––, 129 S.Ct. 2633, 2641, 174 L.Ed.2d 354 (2009).”  Thus, the Court of Appeals held that a search warrant does NOT include a strip search. Further, according to the Court's holding, in order to justify a strip search, the police must possess “specific facts to support a reasonable suspicion that a particular person has secreted contraband beneath his or her clothes or in a body cavity.” Quoting People v. Mothersell, 14 N.Y.3d 358, 900 N.Y.S.2d 715, 926 N.E.2d 1219, 1226 (N.Y.2010).

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