U.S. Supreme Court decision 2-28-11

Michigan v. Bryant            Confrontation Clause – Parameters of an “on-going emergency”

Sometimes Justice Scalia is just too much fun, especially when he is on your side. Justice Scalia wrote in dissent, “Today's tale-a story of five officers conducting successive examinations of a dying man with the primary purpose, not of obtaining and preserving his testimony regarding his killer, but of protecting him, them, and others from a murderer somewhere on the loose-is so transparently false that professing to believe it demeans this institution. But reaching a patently incorrect conclusion on the facts is a relatively benign judicial mischief; it affects, after all, only the case at hand. In its vain attempt to make the incredible plausible, however or perhaps as an intended second goal-today's opinion distorts our Confrontation Clause jurisprudence and leaves it in a shambles. Instead of clarifying the law, the Court makes itself the obfuscator of last resort. Because I continue to adhere to the Confrontation Clause that the People adopted, as described in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), I dissent."

Facts: The deceased drove himself to a gas station after someone shot him. The police (5 officers at different intervals according to Scalia) continually questioned the deceased about the identity and location of the shooter. The deceased, well, dies a couple hours later. Nevertheless, the deceased claimed Mr. Bryant shot him at Mr. Bryant’s home. The Michigan Supreme Court found no “on-going emergency” and thus, held the statements were inadmissible testimonial statements.

Issue: Whether statements made to police constituted non-testimonial statements made to help resolve an “on-going emergency”?

Held: Yes.

Reasoning: Essentially, the Court held that if the statements were given to assist in an “on-going emergency” then those statements are non-testimonial in nature, and thus, can be admitted without violating the Confrontation Clause – nothing significantly different from Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224. However, this decision is a complete bastardization of the phrase “on-going emergency.” In Davis, the Court held statements made during a 911 call about the whereabouts of an assailant during the crime constituted non-testimonial statements. The Court found so because the primary purpose of the police interrogation was to provide assistance during an emergency not primarily with investigating a crime. However, here in Bryant, the Court, gives wide latitude to the police if they simply claim “on-going emergency.” Over a couple of hours both at the gas station and at the hospital, numerous officers interviewed the deceased. No officer testified, according to the opinion, that their intentions were to track down “a murderer on the loose,” as Scalia coined. According to the opinion, the purpose of the interrogation determines whether the statements can be classified as testimonial or non-testimonial – whether the police truly want to resolve an “on-going emergency” or simply want to investigate an alleged crime. Odd, given the Court’s greater and greater disdain for any 4^th or 5^th Amendment litigation where the intentions of the officers have almost become irrelevant and inadmissible, that the Court would then direct lower courts to start examining the officer’s intentions during the interrogation.

Colorado Supreme Court decision 2-22-11

In Re: People v. Vlassis            Rule 16 and Witness Statements – Mandatory vs. Discretionary Disclosure

Synopsis: An Arapahoe District Court ordered the prosecution to disclose all witness statements contained in any prosecution notes and emails. The trial court made the ruling under the mandatory provisions of Rule 16, Part I(a)(1)(I) – not the discretionary provisions of Rule 16. The prosecution sought a Rule 21 ruling from the Colorado Supreme Court to prohibit the disclosure.

Issue: Does Rule 16, Part I(a)(1)(I), mandate all witness statements contained in notes and emails?

Held: No.

Reasoning: The rule the Court came up with:

Rule: notes and emails created by the prosecution or its staff amount to “nondiscoverable work product.”

Exception: Rule 16, Part I(a)(2) mandates disclosure if the notes or emails contain exculpatory information;

Exception:  Rule 16, Part I(d)(1), if the defense shows the request is reasonable by showing:
(1)  The information is relevant “to the conduct of the defense,” and,
(2)  The defense cannot obtain the statements from any other source. 

Colorado Court of Appeals decisions 2-17-11

People v. LePage            Plain Error – Wrong Jury Verdict Form / “soft transition” vs “hard transition” jurisdiction / Challenge for Cause

Facts: A jury convicted Mr. LePage of 2^nd Degree Assault. The defense submitted a lesser of Obstruction of a Peace Officer. Seems the state previously incarcerated Mr. LePage for life, and this skirmish with a guard occurred up in Sterling Correctional. The trial court correctly instructed the jury on the elements of Obstruction. However, the trial court gave the jury a verdict form for the lesser of 3^rd Degree Assault – not Obstruction. Neither defense counsel nor the prosecution objected.

Issue: Whether trial court’s failure to give the proper verdict form for the lesser offense amounted to plain error?

Held: No.

Reasoning: The CofA defined Colorado as a “soft transition” jurisdiction based upon People v. Richardson, 184 P.3d 755 (Colo.2008). Thus, a jury can decide the lesser offenses prior to deciding the greater offenses. “In accordance with

the ‘soft transition’ approach, when there is a rational basis for the jury to convict the defendant on a lesser included offense, the trial court's failure to instruct on that offense constitutes reversible error.” People v. Pena, 962 P.2d 285, 287 (Colo.App.1997). Mr. LePage argued that the trial court’s failure to give the proper verdict form amounted to a refusal to permit the jury to decide the issue of Obstruction. The CofA disagreed, and affirmed the conviction.

Issue: Whether “I think I would” is sufficient grounds to challenge a juror for cause?

Held: No

Reasoning: The juror said, “I'd like to hear from the defendant, his side of the story.” LePage’s lawyer asked the juror, “Would you hold that against Mr. LePage just even a little bit?” The juror answered, “I think I would.”

The prosecution then easily rehabbed the juror:

The prosecutor asked Juror M., “[D]o you feel that you could render a fair and impartial verdict?” and Juror M. answered, “Yeah, I think I could.” The prosecutor then asked, “You are not going to try and assume something simply based on silence?” and Juror M. responded, “I would go with the evidence, you know, what's going to be presented.” Finally, the trial court informed Juror M., “LePage doesn't have to present any evidence at all. Do you understand that?” and “Do you feel you could follow that instruction?” to which Juror M. twice answered, “Yes.” When asked, “[S]o if [LePage] didn't testify, you would not hold that against him?” Juror M. answered, “No.”

Moral of the story? Follow Ann Roan’s flow chart for challenges for cause. This lawyer stopped at the slightest hint of unfairness, which is never sufficient (truth be told, I know I have committed the same error). The lawyer did not open it up for all the reasons the juror felt the way he/she did about testifying. The lawyer did not then lead the juror through the same with leading questions. The lawyer did not then give the law as an out and close the cave. The trial lawyer believed he/she established enough when clearly even without the rehab she/he did not.

People v. Hicks            Statute of Limitations / Ex Post Facto

Facts: Mr. Hicks pled to sexual assault when a COLD! CASE! Unit ran the DNA from some old ’92 rape case. The offense occurred in ’92 and the prosecution charged him in ’06. Mr. Hicks’ lawyer filed a motion to dismiss based upon the statute of limitations (10 years in ’92), but the trial court never ruled on the motion. Instead, Mr. Hicks pled.

Issue: Whether the 10-year statute of limitations applied depriving the trial court of jurisdiction?

Held: No.

Reasoning: The CofA reasoned the 10-year statute of limitations did not apply. Because the legislature modified the statute to indefinite in ’01 before the original statute of limitations ran out on this offense, Ex Post Facto did not prohibit the state from prosecuting Mr. Hicks. “It is well established that ‘a law enacted after expiration of a previously applicable limitations period violates the Ex Post Facto Clause when it is applied to revive a previously time-barred prosecution.’ Stogner v. California, 539 U.S. 607, 632-33 (2003)…”

People v. Walker            Speedy Trial

Facts: On October 6, 2008, Mr. Walker pled not guilty to first-degree assault, second-degree assault, and domestic violence charges. The trial court set trial for March 30 2009. On March 30, 2009, the day of trial, the prosecution told the trial court it could not proceed because the complaining witness did not show on the subpoena. The trial court dismissed the charges against Mr. Walker, and issued a warrant for the complaining witness. On November 9, 2009, the police arrested the complaining witness, and the prosecution re-filed the charges against Mr. Walker. Mr. Walker filed and the trial court granted the motion to dismiss for violation of Mr. Walker’s statutory speedy trial rights.

Issue: Does dismissing and then re-filing charges outside the original speedy trial period violate a person’s statutory right to speedy trial?

Held: No.

Reasoning: The CofA reasoned dismissal sufficiently protected Mr. Walker’s rights under the speedy trial statute, and the re-filing of the exact same charges based upon the exact same evidence did not violate those rights. The CofA mentioned the trial court said “without prejudice” - words I’ve always thought had absolutely no meaning but made retards feel like they knew what they were talking about. Further, the CofA mentioned that defense counsel did not object to the “without prejudice” language. Most importantly, the CofA held there is really no such thing as an “anticipatory speedy trial violation.” Thus, perhaps if defense counsel would have objected, and asked that the trial be reset on the last day or at least within the remaining speedy trial period (all of 6 days), then maybe counsel could have preserved the right and established a violation of speedy trial. Idiotic, because the original trial judge put on the record it was impossible to re-set the case in the next 6 days. Good God. The lengths we go to incarcerate people. Too bad Courts are not that forgiving when it comes to defense motions or the Constitution. 

Colorado Court of Appeals decision 1-20-11

People v. Fuentes            Burglary / Double Jeopardy

Synopsis: A jury convicted Mr. Fuentes of two counts of 1˚ Burglary despite the fact that Mr. Fuentes only broke into one home (Jeffco does this all the time, morons).  During a party, Mr. Fuentes, the prosecution claimed, unlawfully entered the home and assaulted two people – one outside the home after Mr. Fuentes entered the home.

Issue: Without violating the Double Jeopardy Clauses, can a person be convicted of two counts of burglary when the prosecution alleges only one home?

Held: No

Reasoning: Person crimes: robbery, assault, murder, harassment, etc. - all protect people.

Property crimes: theft, criminal mischief, and burglary - all protect property. Derrr…. I think they taught this simple concept the first day of criminal law. Yet, the Court of Appeals spends a lot of energy refuting every spurious argument from the Attorney General. Thus, when the trial court sentenced Mr. Fuentes separately for each burglary conviction, the trial court violated Mr. Fuentes’ rights against Double Jeopardy.  The CofA then vacated one burglary conviction, and let the sentence stand on the other burglary conviction.

Issue: Does flight under the 1˚ Burglary statute encompass an assault outside the home of the alleged burglary?

Held: Yes.

Reasoning: Facts specific analysis according to the CofA – the Court reasoned that the assault took place outside the home as Mr. Fuentes and his comrades got into a waiting van. Therefore, the CofA reasoned the jury could have found that Mr. Fuentes in flight from the scene.  Further, despite what the defense called a break after the alleged assault, ‘flight’ encompasses momentary breaks in the action.

Issue: Whether any error occurred when the trial court granted the prosecution’s motion to continue without Mr. Fuentes being present at the hearing?

Held: No.

Reasoning: Because the trial court re-set the trial within the speedy trial period and because Mr. Fuentes could state no basis for the court granting his objection had he been present, the CofA reasoned no error occurred “let alone constitutional error, that substantially influenced the verdict or affected the fairness of the trial proceedings.”

People v. Cardenas Restitution – Post Judgment Interest

Synopsis: Mr. Cardenas pled to two counts of 1˚ Criminal Trespass. The trial court sentenced him to prison, and imposed post-judgment interest at 12% per year.

Issue: Whether the imposition of post-judgment interest on a person sent to prison violates the excessive fine clause of the 8^th Amendment of the U.S. Constitution and/or Article II, section 20 of the Colorado Constitution?

Held: No.

Reasoning: Mr. Cardenas raised the issue due to his circumstances in prison, and thus, unable to be gainfully employed to pay the restitution. The CofA interpreted this as an as applied attack on the statute. To bolster his argument, Mr. Cardenas cited People v. Fichtner, (1994), where the Colorado Supreme Court held, “The court's duty to fix the amount of restitution is not confined to sentences to probation but applies equally to sentences to imprisonment. People v. Johnson, 780 P.2d 504 (Colo.1989). However, if a sentence of incarceration is ordered, a court does not also order the defendant to pay restitution during the period of incarceration. Instead, at the time of sentencing, the court sets the amount of restitution for later consideration by the parole board. See People v. Powell, 748 P.2d 1355 (Colo.App.1987).”

            The CofA essential ignores this quote from Fichtner, claims the change in the statutory language from “fix” to “impose” substantially changed the meaning of when restitution. Therefore interest can be imposed.

The CofA never addressed that a reasonable reading of the interest section of the restitution statute would be to postpone any accrual of interest until after the Parole Board released Mr. Cardenas.

People v. Roldan            Challenge for Cause

Synopsis: Essentially a cop-loving, marrying juror could not unequivocally state she would not be biased against the defense. The juror’s quotes: “I think I probably can,” “Of course, I would listen to the evidence and make a decision on it, put an opinion on it, but-yeah,” and she stated she could not be fair because she knows all the dirty tricks defense lawyers play. The trial court denied the challenge for cause. Mr. Roland then kicked the juror with a peremptory, and exhausted all his remaining peremptories.

Issue: Whether the trial court abused its discretion in denying the defense’s challenge for cause?

Held: Yes.

Reasoning: The CofA reversed the conviction, but starts its reasoning with, “If the trial court erroneously denies a challenge for cause, and the defendant removes the juror with a peremptory challenge and exhausts all available peremptory challenges, the judgment of conviction must be reversed and the case remanded for a new trial.” The CofA held because the juror could not unequivocally state should would not be biased, that Mr. Roldan deserves a new trial. Further the trial court solidified its holding by citing a combination of factors to justify the defense’s challenge of the prospective juror.

Directly from the case:

As a prospective juror, Juror R. informed the court in her questionnaire that her husband, brother, and cousin were police officers. In response to a question on her questionnaire asking if there was any reason she believed she could not  be fair, she wrote “yes” and explained, “I am very aware of some of the tricks attorn[eys] (especially defense) try to do[,] I would be biased.”

During voir dire, she further stated, “I've worked for construction companies that have had things stolen and pawned, and so I think I might be a little biased.”

Concerning her relatives in law enforcement she explained, “I love my husband and cops.... I got a lot of friends that are.” When asked, “[D]o you think you can be fair and impartial in setting those personal experiences behind?” Juror R. responded, “I think I probably can.” Regarding the credibility of a person with a criminal history, Juror R. stated, “[W]ith the job that my husband and my brother do[ ], that I would be skeptical.” She explained, “[M]aybe I'm a little biased in that area, just because of my background like that.” When asked, “If somebody walks in in uniform, are they going to start out as more truthful for you?” stated, “[Y]ou just want me to say yes. Yes.”

Juror R. also expressed concern for defense attorney “tricks” and for evidence that is “held out of cases just for, you know, various reasons.” She stated that she might be concerned that there was other evidence that was not being introduced, which might affect her decision when deliberating. When asked if she could make a fair and rational decision based on all of the evidence and its context, Juror R. responded, “Of course, I would listen to the evidence and make a decision on it, put an opinion on it, but-yeah.”