May 24, 2012

Colorado Court of Appeals - 4-12-12 - People v. M.C.

People v. M.C.          Willful Destruction of Wildlife
Facts: In Grand County, Colorado, where hunting remains king, a friend of M.C.’s killed a prong horned antelope while M.C., the shooter, and another kid went out to shoot at clay pigeons. Because all kids need a felony adjudication, prosecution filed willful destruction of wildlife against M.C., a class five felony. The prosecution summed up the facts of this case in its response to the bill of particulars order, “[M.C.] abandoned the wildlife when he left the original kill site with the person who killed the wildlife. He went with the person who killed the wildlife back to a [sic] juvenile's house. He then returned to the scene with the person who killed the wildlife. He helped move the carcass from the original kill spot to a different location. He and the others then abandoned the wildlife.” In a court trial, the judge found the youngster guilty (kids do not have a right to a jury trial.) In his appeal, M.C., unfortunately, did not raise sufficiency of the evidence, but only challenged the law as unconstitutional
Issue: Whether willful destruction of wildlife statute is unconstitutionally vague?
Held: No.
Reasoning: The legislators defined ‘take’ but instead ambiguously used of the term ‘taken’ in the destruction of wildlife statute. Nevertheless, the Court of Appeals found the statute as a whole easily understood by anyone of common intelligence. Further, the Court found the dictionary definition of abandon provided sufficient notice. Judge Furman agreed with M.C. in dissent, and argued that M.C. never acquired an interest in the antelope sufficient enough to ‘abandon’ the animal. Judge Webb with Judge Russel concurring wrote the decision. 
>Link to People v. M.C. here<

May 14, 2012

Colorado Court of Appeals - 4-12-12 - People v. Turecek

People v. Turecek     Restitution
Facts: Mr. Turecek torched his own home. Apparently, he did not own the home outright as the prosecution charged him with 1° arson and 4° arson. Mr. Turecek pled to 4° arson. On the day of sentencing, some representative from an insurance company told the trial court the insurer only had an estimate at the time but could “easily” get the trial court a definite amount within 90 days. The Court told the prosecution to follow up with definitive numbers on the restitution within ninety days. Further, the Court commented it needed an amended motion as the prosecution’s initial motion was inaccurate because the insurer was still investigating. The prosecution failed, and some nine months later filed a motion with Court to grant the original, inaccurate, incomplete motion for restitution. The trial court obliged.
Issue: Where the prosecution showed no good cause, whether the trial court abused its discretion by granting a restitution request well be beyond the 90-day statutory deadline?
Held: Yes.
Reasoning: In Colorado, the statute, C.R.S. §18–1.3–603(1)(b), allows the prosecution to seek up to ninety days to determine the restitution.  The statute also allows an enlargement of time beyond ninety days, if the prosecution shows good cause to the trial court. Here, the Court of Appeals determined the prosecution did neither, and reversed the restitution order. Of the litany of complaints the prosecution claimed for failing miserably at its job, two were significant – one, the error, if any, was harmless, and two, the U.S. Supreme Court the U.S. Supreme Court in Dolan v. United States, –––U.S. ––––, 130 S.Ct. 2533 (2010), allowed for an extension of time under similar circumstances. 
Regarding the harmless error, the prosecution claimed that Mr. Turecek knew restitution was coming and the trial court held a hearing on the restitution where he appeared and where counsel represented him.  The Court of Appeals held because the statute mandates 90-days for restitution and includes a good cause section to enlarge that time, the error cannot be considered harmless. The Court of Appeals seemed particularly irritated that the prosecution lazed around for some nine months, disregarded the trial court's order, and never filed an accurate motion to resolve the restitution.
Regarding U.S. Supreme Court in Dolan, the Court of Appeals quoted entirely from the dissent in that 5-4 decision, and came back around to the fact this is a state, not a federal statute. Whatever persuasive authority Dolan may be, the Court of Appeals held against the prosecution. Panel: Judge Gabriel wrote the opinion with Judges Roy and Terry concurring.
>Link to People v. Turecek here<

Colorado Supreme Court - 5-14-12 - People v. Angel

People v. Angel         Work Product
Facts: In El Paso County, Colorado, three police officers went to a motel to arrest someone on an arrest warrant. They claimed they saw the suspect sitting the backseat of a car with three other people. The cops surrounded the car which prompted the driver to put the car in gear. One of the cops claimed the car ran over his foot. So, of course, the cop shot the driver (the opinion did not disclose any details of any injury to the cop). However, the driver managed to then drive away, and drive long enough to get away. The driver ended up still in the car at a hospital some 3 hours later. The DAs supposedly investigated the case, and white washed the cop shooting the driver. However, they charged Ms. Angel with vehicular eluding and other charges (theory: she drove the car after the driver died). As part of the DAs white wash of the cop shooting, they compiled witness interview notes and created a power point presentation. Ms. Angel sought the notes and power point in the cop shooting. The trial court ordered disclosure of the notes and power point. The trial court reasoned that work product only includes the case in which the prosecution charged Ms. Angel, and work product does not encompass notes, impressions, etc. from other cases such as the cop shooting the unarmed driver.
Issue: Whether the trial court abused its discretion by ordering disclosure of work product in another criminal investigation/case?
Held: Yes.
Reasoning: The Colorado Supreme Court held work product covers any case or investigation.  The rule, Colorado Rules of Criminal Procedure, Rule 16(I)(e)(1), reads, “Disclosure shall not be required of legal research or of records, correspondence, reports, or memoranda to the extent that they contain the opinions, theories, or conclusions of the prosecuting attorney or members of his legal staff.”
            The Colorado Supreme Court repudiated the reasoning of the trial court, “The purpose of the work product doctrine is to protect the mental impressions and legal analysis of the attorney, so that she may properly analyze the merits of and prepare for the disposition of her client’s case.” Thus, “[T]he purpose of Crim. P. 16(I)(e)(1)… is to provide prosecutors with a degree of privacy in which they  may  candidly and thoroughly evaluate legal claims and strategies.  If we were to hold that Crim. P. 16(I)(e)(1), applies only to protect opinion work product created in anticipation of the case before the court, then a prosecutor, when investigating a criminal episode in the future, would have a substantial incentive to refrain from candidly and thoroughly evaluating a case for fear that her mental impressions, legal analysis, and trial strategies would be discoverable by defendants in future cases.” (citations omitted)

April 19, 2012

Colorado Court of Appeals 4-12-12 People v. Davis

People v. Davis            COCCA / Statute of Limitations           
Facts: Prosecutors in Denver conjured up racketeering garbage against supposed gang members in the Denver area, one being Mr. Davis. At the time of these charges, Colorado already incarcerated Mr. Davis on a lengthy prison sentence for aggravated robbery and 1˚ assault. Nevertheless, based upon a second degree assault while he was in prison, the prosecution charged various COCCA counts against him –  some within the 10 year time limit, other outside, and others outside the statute of limitations of 3 years.
Issue: Whether an offense may form the basis of COCCA racketeering charge when the statute of limitations for that offense expired?
Held: Yes.
Reasoning: The statute reads:
“Pattern of racketeering activity” is defined as “engaging in at least two acts of racketeering activity which are related to the conduct of the enterprise ... and if the last of such acts occurred within ten years (excluding any period of imprisonment) after a prior act of racketeering activity.” § 18–17–103(3), C.R.S.2011. 
Giving entirely too much power to the prosecution, the Court of Appeals, following federal law under RICO, held that if one predicate crime fell within the statute of imitations, no time limit applied to any other predicate offenses. (Panel: Judge Miller wrote the decision with Judges Roman and Richman concurring)
>Link to People v. Davis here<

Colorado Court of Appeals 4-12-12 People v. Douglas

People v. Douglas            Internet Luring / Complicity / Sufficiency / Enticement / Solicitation
Facts: Colorado prosecutors, not content with filling prisons with Coloradans, import crime from other states – here Pennsylvania where Mr. Douglas resided. In Fremont County, Colorado, a detective poses as a mom who whores out her daughter over the Internet - second decision in a month in a case involving this detective and this ruse. Unfortunately, Mr. Douglas ensnared himself in this idiotic trap. A jury convicted him of Internet luring, enticement of a child, and solicitation of sexual assault on a child in a position of trust.
Issue: Whether the prosecution presented sufficient evidence to convict Mr. Douglas of Internet luring, exploitation of a child and attempted sexual assault on a child in a position of trust?
Held: No on Internet luring; yes on both the enticement and the solicitation.
Reasoning: Because the detective did all the internet luring herself, the prosecution presented no evidence that Mr. Douglas lured the fake kid over the Internet. Instead, the prosecution presented evidence that Mr. Douglas was complicit with the detective pretending to be a mom who whored out her daughter over the internet. Essentially, because the detective – fake mom - committed no crime, Mr. Douglas could not be complicit in any crime.
            However the Court of Appeals found the prosecution did present sufficient evidence of enticement and solicitation. On the enticement, the Court of Appeals held that through six-degrees of separation, Mr. Douglas did entice the fake kid - in initial chats, he told the fake mom she could teach the kid how to 'suck', and he made plans to have a three-way with the "mom" and fake kid.
            On the solicitation charge, Mr. Douglas asked the "mom” to engage and assist him in engaging in sexual contact with the fake kid, and thus, the Court of Appeals held the prosecution presented sufficient evidence of solicitation of sexual assault on a child in a position of trust. (Panel: Judge Miller wrote the decision with Judges Roman and Richman concurring) 

April 15, 2012

Colorado Court of Appeals 3-29-12 People v. Torrez

People v. Torrez            Pre-Sentence Confinement Credit
Facts: Out of Denver, a jury found Ms. Torrez not guilty by reason of insanity in a murder case. The Denver court sent her to the state hospital. Subsequently, in Jefferson County, she pled, and the court sentenced Ms. Torrez to 10 years in prison, with 83 days pre-sentence confinement credit. Ms. Torrez sought an additional 1,493 days pre-sentence confinement credit for time Denver and the state hospital held her on the Jefferson County case.
Issue: Under the latest amendment in 2003 to C.R.S. §18-1.3-405, does the statute permit pre-sentence confinement credit on a sentence when another jurisdiction holds an accused?
Held: No.
Reasoning: The Court of Appeals all but begged the Colorado Supreme Court to reverse the holding here. The Court of Appeals reasoned despite the plain language statute, which dictates all the additional credit, it could not grant the credit due to Colorado Supreme Court precedent. However, the Court of Appeals found that precedent did not prohibit it from granting time to Ms. Torrez since the jury in Denver found her not guilty by reason of insanity.
            Previously, the Colorado Supreme Court came up with test not in the statute – ‘substantial nexus’. The Court then promptly ignored its manufactured test, and denied credit whenever the jail in a specific jurisdiction did not hold the accused on the offense in that jurisdiction. People v. Massey, 736 P.2d 19 (Colo. 1987); People v. Freeman, 735 P.2d 879 (Colo. 1987). For parolees, the Court whimsically held that credit only goes to the parole period and not the new offense. People v. Norton, 63 P.3d 339 (Colo. 2003). Again, nary a word in the statute limiting credit for parolees. Unthwarted these strict-constructionalist justices (Justices Eid, Rice, and Coates) marched on unhinged from the confines of actual statutory language. Since these decisions, the legislature again amended the statute to make it crystal clear that credit, wherever served, under whatever conditions, and despite judicial handwringing, must be granted. The statute reads simply enough: “A person who is confined for an offense prior to the imposition of sentence for said offense is entitled to credit against the term of his or her sentence for the entire period of such confinement.” (panel: Judge Hawthorne wrote the opinion, and Judges Lichtenstein and Booras concurred).

April 12, 2012

Colorado Court of Appeals 3-29-11 People v. Bondurant

People v. Bondurant            Mental Condition Negating Mens Rea
Facts: A jury convicted Mr. Bondurant of two counts of first-degree murder, second-degree murder, and a slew of other charges. Mr. Bondurant sought to introduce evidence of his anxiety, depression, and panic attacks to negate the mens rea of the alleged crimes. However, Mr. Bondurant objected to the court appointed evaluation required by statute.
Issue: Whether the statutes C.R.S. §16–8–107(3)(b), and relevant portions of §16–8–103.6 and §16–8–106, requiring a state mental evaluation violates the separation of powers doctrine, a defendant's privilege against self-incrimination, the right to present a defense, the right to effective assistance of counsel, or is unconstitutionally vague both on its face and as applied?
Held: No.
Reasoning: Separation of Powers: The Court of Appeals ignored the argument that the statute set an additional condition precedent that the judiciary's own rule did not impose. Mr. Bondurant argued that this usurped the judiciary’s authority to set procedure. The Court of Appeals simply disagreed.
Right to present a defense: The Court held the statute did not prohibit any defense, but merely set procedure to pursue a defense.
Privilege against self-incrimination: The Court found, “Here, this statutory scheme evinces the General Assembly's intent that information obtained in compulsory mental examinations be admissible only on the issue of mental condition.” Hence, according to the Court, the statute does not violate the 5th Amendment.
Effective assistance of counsel: The Court held, “Having concluded, consistently with Roadcap, that the statutory scheme does not preclude a defense involving the defendant's mental condition, it necessarily follows that the statutory scheme does not violate a defendant's right to effective assistance of counsel.” (Citing People v. Roadcap, 78 P.3d 1108 (Colo. App. 2003))
Unconstitutionally vague on its face or as applied:  The Court found the statute is not incomprehensible in all its applications. Further, the term ‘cooperate’, the Court reasoned, did not require folks of common intelligence to guess at its meaning.
(panel: Judge Taubman wrote the decision and Judges Dailey and Fox concurred).

Colorado Court of Appeals 3-29-12 People v. Brooks

People v. Brooks            Sex Offender Registration / Out of State Convictions
Facts: Texas previously convicted Mr. Brooks of “indecency with a child by exposure”. After dutifully registering every quarter for about two years in El Paso County, Colorado, a detective sought to confirm Mr. Brooks' address. The cop complained Mr. Brooks moved, did not unregister the old address, and did not re-register his new address. The prosecution charged Mr. Brooks with two felony counts under the sex offender registration statute. Mr. Brooks’ lawyers argued at a court trial that Colorado did not require registration for the offense under which Texas convicted Mr. Brooks. The trial court ignored the defense and convicted Mr. Brooks of misdemeanor offenses for failing to register.
Issue: Whether the Texas conviction for “indecency with a child by exposure” requires a person to register as a sex offender in Colorado?
Held: No.
Reasoning: The Court of Appeals (panel: author Judge Graham and Judges Carparelli and Booras concurring) compared the elements of the indecent exposure statute in Colorado with the statute under which Texas convicted Mr. Brooks. The Court found that Colorado required an additional element, “under circumstances in which such conduct is likely to cause affront or alarm to another person.” Hence, the Court of Appeals held the offense under which Texas convicted Mr. Brooks did not amount to indecent exposure in Colorado, contrary to what the prosecution argued. Thus, Mr. Brooks never needed to register as a sex offender. Therefore, the Court of Appeals reversed Mr. Brooks' convictions. A colleague, Deputy Public Defender Rory Taylor, wrote the brief and argued the case on appeal after co-PD Kelly Moss raised, argued, tried the case in District Court. Nice work all around.

Colorado Supreme Court 3-26-12 People v. Esparza

People v. Esparza            4th Amendment / Definition of ‘Search’ / Dog Sniff
Facts: In Craig, Colorado, bored police stopped Ms. Esparza for a traffic violation. The police subsequently arrested her driving under suspension. After arresting her, the police brought in a supposed drug-sniffing dog to snoop around Ms. Esparza’s truck. Of course, the police claim the dog ‘hit’ on something. On later date, the same cop saw Ms. Esparza driving the truck. The cop, suspecting that Ms. Esparza’s license was still under suspension, stopped her, confirmed the suspension, and arrested her. Again, after the arrest the police brought out the drug-sniffing dog to snoop around the truck. Again, the police claim the dog ‘hit’ on something. The something the dog hit on? A pipe supposedly used to smoke meth – nothing else, no baggies, no usable quantities, not anything - just burnt residue.
Issue: Whether the dog sniff constituted a search?
Held: No.
Reasoning: Justice Coates, writing for the majority, confuses the right to be free from unreasonable searches with the illegality of meth. He wrote, “We now hold that an interest in possessing contraband cannot be deemed legitimate under the state constitution any more than under the federal constitution, and that official conduct failing to compromise any legitimate interest in privacy cannot be deemed a search under the state constitution any more than under the federal constitution.” To Justice Coates and the rest of the majority, the ends justify the means. Because no one possesses any legitimate privacy interest in something illegal, police conduct to recover the contraband cannot be unconstitutional. It’s tautological, of course.
            Deputy Public Defender Emily Wickham, the lawyer who defended Ms. Esparza and argued the case on interlocutory appeal, understood the tautology. Ms. Wickham smartly couched her entire argument under the state constitution because in Illinois v. Caballes, 543 U.S. 405, 409 (2005), the U.S. Supreme Court espoused the same tautology, and found a similar dog sniff constitutional under the U.S. Constitution
(The super sniffing dog ‘hit’ on burnt residue in a pipe? People believe this?)

April 9, 2012

Colorado Supreme Court 3-26-12 People v. Wilburn

People v. Wilburn            Mens rea / Mistake of Fact / Expert Opinion / Insanity
Facts: Mr. Wilburn missed a court date on the morning of Monday, May 16. However, after being contacted by his attorney, Mr. Wilburn arrived at 1:30PM on the 16th. Essentially, Mr. Wilburn arrived about 5 hours late for court. Never an office to miss an opportunity to be petty, the District Attorney’s Office added a charge of violating a condition of bond. In his defense, Mr. Wilburn asserted he suffers from a severe learning disorder where he transposes numbers – here a 6 for a 9. Thus, Mr. Wilburn believed the trial court set his hearing date for the 19th instead of the 16th. Prior to trial, Mr. Wilburn’s attorney gave notice to the court and the prosecution that Mr. Wilburn intended to introduce evidence of his learning disorder to negate the mens rea element of knowingly violating the bond condition – a mistake of fact under C.R.S. §18-1-504(1)(a). Both the prosecution and the trial court believed the issue of the learning disability was the type that required a plea of insanity or impaired mental condition. Thus, the prosecution sought an extensive, 45-day, inpatient evaluation of Mr. Wilburn by the state hospital, and the trial court, believing it had no discretion, ordered the same. The defense argued, under C.R.S. §16-8-107(b), the trial court does have the authority to set the time and place of the evaluation. The defense argued the statute carves out a section for situations like Mr. Wilburn's. Thus, the statute, under that specific section, only requires an expert evaluation of the condition. 
Issue: Whether the trial court abused its discretion when it found Mr. Wilburn must plead not guilty by reason of insanity or impaired mental condition, requiring an extensive, 45-day, inpatient evaluation by the state hospital?
Held: Yes.
Reasoning: The unanimous Colorado Supreme Court reasoned under C.R.S. §16-8-107(b), the defense could present expert testimony on the issue of Mr. Wilburn’s learning disability without a entering a plea of insanity or impaired mental condition. The Court found the evidence of the learning disability relevant to negate the mens rea element. Further, the Court found that a court-appointed, expert-evaluation of the learning disability should be ordered by the trial court instead of 45-day, inpatient, insanity evaluation at the state hospital. The Court laid out, in baby steps, what defense lawyers and trial courts in the future need to do to assert or present this type of evidence. Lastly, the Colorado Supreme Court, through People v. Van Rees, 125 P.3d 403 (Colo. 2005), People v. Flippo, 159 P.3d 100 (Colo. 2007), and here, in People v. Wilburn, sufficiently defined what may be introduced as evidence to negate the mens rea element without the necessity of pleading not guilty by reason of insanity. 

April 2, 2012

U.S. Supreme Court 4-2-12 Rehberg v. Paulk

Rehberg v. Paulk            Immunity            
Facts: After a court dismissed three separate indictments all alleging the same facts, Mr. Rehberg filed a lawsuit against the pissant that is Mr. Paulk. Mr. Paulk worked as the Chief Investigator for some small rathole District Attorney's Office in Albany, Georgia. Seems Mr. Rehberg was none too pleased with the hospital in Albany, and let the hospital, a Dr. James Holtz, and everyone else know about it via fax and other methods. The hospital and Dr. Holtz worked themselves into a tizzy, contacted Mr. Paulk, and as a favor, Sir Pissant Paulk launched a criminal investigation of Mr. Rehberg. Three separate times Mr. Paulk testified to a grand jury, and three separate times he successfully convinced a grand jury to indict Mr. Rehberg on burglary and assault. Three separate times, Mr. Rehberg successfully got the indictments dismissed for lack of sufficiency. After the third dismissal, Mr. Rehberg filed a lawsuit against the vindictive Mr. Paulk.
Issue: Whether the witness immunity protects law enforcement witnesses who testify during a grand jury?
Held: Yes.
Reasoning: Turning a blind-eye to the abuse of power here, the Court simply held that witnesses in grand jury settings should be afforded all the same protections as witnesses who testify in jury trials. Lawsuit dismissed.

U.S. Supreme Court 4-2-12 Florence v. Board of Chosen Freeholders of County of Burlington

Florence v. Board of Chosen Freeholders of County of Burlington Fourth Amendment – Strip Searches
Facts: From an old case, Mr. Florence owed a fine in Essex County, New Jersey. At the time the court imposed the fine, Mr. Florence set up a payment plan. He fell behind on the payment plan, and the court issued a warrant. After the warrant issued, Mr. Florence paid off the remaining amount owed. However, the warrant still showed up on New Jersey State Patrol’s statewide database. Later, in a routine traffic stop on a minor traffic infraction, the warrant showed up, and the state patrol arrested Mr. Florence. As part of a standard procedure, jail personnel strip-searched all new inmates/detainees. After being released, Mr. Florence filed a civil rights suit. The District Court granted summary judgment in favor of Mr. Florence. The U.S. Supreme Court summarized the District Court’s reasoning, “It concluded that any policy of  ‘strip searching’ nonindictable offenders without reasonable suspicion violated the Fourth Amendment.”
Issue: Whether a suspicionless strip-search on an arrestee who will be admitted into a jail’s general population violates the Fourth Amendment?
Held: No.
Reasoning: The Supreme Court, with Justice Kennedy writing for the majority, reasoned that prevention of weapons, drugs, and violence permitted warrantless and suspicionless strip searches on anyone who will be admitted into a jail’s general population. However, in concurring opinions, both Chief Justice Roberts and Justice Alito pointed out the possible limitations and/or exceptions to the rule announced today by the court. Justice Alito wrote, “It is important to note, however, that the Court does not hold that it is always reasonable to conduct a full strip search of an arrestee whose detention has not been reviewed by a judicial officer and who could be held in available facilities apart from the general population.  Most of those arrested for minor offenses are not dangerous, and most are released from custody prior to or at the time of their initial appearance before a magistrate. In some cases, the charges are dropped.  In others, arrestees are released either on their own recognizance or on minimal bail. In the end, few are sentenced to incarceration.  For these persons, admission to  the general jail population, with the concomitant humiliation of a strip search, may not be reasonable, particularly if an alternative procedure is feasible.
            Justice Breyer, joined by Justices Ginsberg, Sotomayor and Kagan, dissented. The dissent argued any suspicionless search on minor offenses violated the Fourth Amendment. In the end, the majority, the concurrences and the dissent highlighted the indignity and humiliation of strip searches. All the justices, except Justices Scalia and Thomas, seemed to agree that minor offenders who will not be admitted into the general population should not be strip searched without at least a showing of reasonable suspicion.

March 29, 2012

Colorado Supreme Court 3-19-12 People v. Salazar

People v. Salazar                        Rule 403 / Rape Shield / Alternate Suspect
Facts: The prosecution charged Mr. Salazar with a slew of charges relating to the alleged sexual abuse of his wife’s eight year-old niece. The niece cannot see without glasses, likely did not wear her glasses at the time of the assaults, and she lived with her grandfather during all the alleged incidents. Mr. Salazar sought to admit into trial, as alternate suspect evidence, the sexual abuse suffered by his wife at the hands of her father, who is the niece’s grandfather. Moreover, the wife testified that she was the same age as niece when her father abused her. After a hearing where the wife testified about the abuse inflicted upon her by her father, the trial court granted the defense’s motion to admit the testimony. The trial court found it relevant, not barred by the Rape Shield Statute, and not prohibited by Rule 403. The prosecution took the issue up as a Rule 21 with the Colorado Supreme Court.
Issue: Whether the trial court abused its discretion by allowing evidence of the sexual assault upon a separate victim by an alternate suspect?
Held: Yes
Reasoning: The reasoning of the majority amounts to inane, blind rationalization. Chief Justice Bender wrote a lone dissent:
“In my view, the alternate suspect evidence has significant probative value not substantially outweighed by the danger of unfair prejudice. It has ‘a tendency to prove the proposition for which it is offered’—that is, that the grandfather, not the defendant, committed the assault in this case ‘If judicial self-restraint is ever desirable, it is when a Rule 403 analysis of a trial court is reviewed by an appellate tribunal.’ We do not look to see if we agree with the trial court, but, rather whether the trial court's decision fell within the range of reasonable options. I would not, as an appellate judge, insert my judgment for that of the trial court's and therefore I would affirm the trial court's ruling. Hence, I respectfully dissent.” (citations omitted).
Only when the state whines would the Court find an abuse of discretion regarding a rule of evidence. To illustrate the ridiculousness of the holding, read Masters v. People, 58 P.3d 979 (Colo. 2002). In Masters, this same Court refused to find an abuse of discretion where some psychologist opined doodles done by Mr. Masters evinced the mind of a man who killed a woman. The prosecution had no other evidence linking Mr. Masters to the unsolved crime, and the jury convicted him of 1˚ murder. Thankfully, since this dreadful decision, David Wymore and Maria Liu successfully freed Mr. Masters, and won settlements in lawsuits over the false and wrongful conviction.
>Link to People v. Salazar here<

March 27, 2012

Colorado Court of Appeals 3-15-12 People v. Estes

People v. Estes            Judicial Misconduct / Prosecutorial Misconduct
Facts: Mr. Estes's cousin, a kid, got hit in the back either intentionally or accidentally by a neighbor kid. At 11:30 pm, Mr. Estes went to the home of the alleged assailant, banged on the door, and made demands. Eventually, he starts to leave, claims another person hit him with the door of the car that pulled up. Mr. Estes punched one person and pointed a gun at the entire group of people from the home. A jury convicted him of menacing and third degree assault. During voir dire, Adams County District Court Judge Wasserman tells the jury that, “This defendant did something. I'm going to tell you that right now, he did something. We didn't just walk out to the bus stop this morning and find [defendant] sitting there waiting for a bus and say: Guess what ... this is your lucky day. Okay? Obviously, he did something.”
            Further, during closing the prosecutor argued, “[W]hen [this trial] started, you were told that you have the presumption of innocence. That presumption of innocence, after the evidence has come in, that cloak, the presumption of innocence is now gone.... You have the evidence. You have all that you need and ... you should have to find the defendant guilty.”
Issue: Whether the trial court lessened the prosecution’s burden of proof with the ‘defendant did something’ comment during voir dire?
Held: No.
Reasoning: The Court of Appeals went through a number of unpublished cases where the Court disapproved of Judge Wasserman’s explanation that the ‘defendant did something’ to get here (See, e .g., People v. Bonilla–Barrera, (Colo.App. No. 09CA0462, Mar. 1, 2012)(not published pursuant to C.A.R. 35(f)) (“We do not condone the trial court's statement that defendant ‘did something.’ ”); People v. Williams, (Colo.App. No. 09CA0906, Jan. 12, 2012) (not published pursuant to C.A.R. 35(f)) (similar); People v. Cruz–Avila, (Colo.App. No. 09CA1957, Dec. 8, 2011) (not published pursuant to C.A.R. 35(f)) (similar); People v. Harris, (Colo.App. No. 09CA1626, Nov. 3, 2011)(not published pursuant to C.A.R. 35(f)) (similar);People v. Edwards, (Colo.App. No. 08CA1764, Aug.12, 2010) (not published pursuant to C.A.R. 35(f))(similar).)
However, while frowning on the comments, again, the Court of Appeals refused to do anything about it. The Court found no substantial prejudice to Mr. Estes.
Issue: Whether the prosecutor’s legally wrong argument regarding the presumption of innocence amounted substantial prejudice?
Held: No.
Reasoning: The Court of Appeals found the comments by the prosecutor legally wrong, the error obvious, but refused to find any substantial prejudice.
          The Court of Appeals pointed out that trial counsel did not object to either the trial court's comments during voir dire or to the prosecutor’s comments during closing argument. Thus, the Court of Appeals reviewed the errors under the plain error analysis. Chief Judge Davidson wrote the opinion with Judge Vogt concurring; Judge Rothenberg wrote a dissent where he found both the trial court and the prosecutor committed plain error.

Colorado Court of Appeals 3-15-12 People v. Nelson

People v. Nelson             Fourth Amendment – Warrantless Search – Exigent Circumstances
Facts: Based upon a snitch, the police go to an apartment where Mr. Nelson resided. At the apartment, the police knocked, lied about their identity, and claimed they saw a pot pipe in the apartment. When the police see another man ‘run’ out the back door, the police barge into the apartment, take Mr. Nelson down with force, and chase the other man. Subsequently, the police search the apartment.
Issue: Whether the police had exigent circumstances to enter the home?
Held: Yes.
Reasoning: The Court of Appeals reasoned the snitch’s tip along with the pot pipe and running occupant justified the officers entry into the home. Further, although not ‘condoning’ police lies and ruses, the Court of Appeals did just that. The Court of Appeals, like so many other courts, ignores that the police lied to create their own exigency, if one actually existed. Judge Taubman wrote the opinion with Judges Fox and Dailey concurring.

Colorado Court of Appeals 3-15-12 People v. Ujaama

People v. Ujaama            Confrontation – Closed Circuit TV
Facts: A jury convicted Mr. Ujaama of 1˚ murder and auto theft. During trial, the prosecution sought and the trial court allowed the step-daughter to testify by closed circuit TV. The prosecution filed a motion alleging that the girl would suffer emotional distress if forced to testify in front of Mr. Ujaama.
Issue: Whether the trial court abused its discretion in allowing the daughter to testify by closed circuit TV?
Held: No.
Reasoning: Relying on Maryland v. Craig, 497 U.S. 836 (1990), the Court of Appeals held that allowing the testimony by TV did not violate Mr. Ujaama’s right to confront witnesses. In Craig, the U.S. Supreme Court held, “So long as a trial court makes ... a case specific finding of necessity, the Confrontation Clause does not prohibit ... using a one-way closed circuit television procedure for the receipt of testimony by a child witness.” (quoting the Court of Appeals recitation of the holding in Craig) Opinion by Judge Bailey with Judges Taubman and Fox concurring.

Colorado Court of Appeals 3-15-12 People v. Finney

People v. Finney                        Deferred – Revocation
Facts: Mr. Finney pled to sexual assault, a class-four felony, and a 3˚ assault, a class one misdemeanor. The trial court deferred the sexual assault conviction, and imposed concurrent probation on the third degree assault conviction. At the revocation hearing, Mr. Finney’s attorney waived his right to be advised of the potential penalties.
Issue: Whether the Due Process Clauses require a court to advise of the possible penalties not withstanding counsel’s waiver?
Held: No.
Reasoning: The Court of Appeals went through the presentence report, the plea paperwork, and all the failed plea colloquies where the presiding judge correctly advised Mr. Finney of the potential prison sentence, and found that Mr. Finney received an adequate advisement of the potential prison sentence. Further, the Court found Mr. Finney’s attorney waived advisement, and such an advisement is not required to revoke someone’s deferred sentence. The Court wrote, “Thus, looking to the record as a whole, we conclude that defendant's admission that he violated the terms of the deferred judgment agreement was valid and did not offend the Due Process Clause even though he was not readvised of the potential penalties.” Opinion by Judge Bernard, Russel, J., concurs; Hawthorne, J., dissent

March 21, 2012

Colorado Court of Appeals - 3-15-12 - People v. Casias

People v. Casias            1˚ Murder - Child Abuse / 404(b) – Knowing and Reckless Crimes           
Facts: A jury convicted Mr. Casias of 1˚ murder of his seven-week old child, J.C. Under C.R.E. Rule 404(b), the trial court allowed evidence that Mr. Casias slapped, shook, and spanked his three year-old daughter, although none of those acts caused serious bodily injury.
Issue: Whether the trial court abused its discretion in allowing the introduction of the acts allegedly committed on A.C., Mr. Casias's daughter?
Held: Yes.
Reasoning: “Other bad acts evidence is admissible to prove a defendant's knowledge or reckless mental state, see 1 Edward J. Imwinkelried, Uncharged Misconduct Evidence § 5:24, at 65–66 & § 5:39, at 115–16 (2009), when, during the course of the bad act(s), (1) the defendant revealed guilty knowledge of a circumstance or risk; (2) the defendant gained direct knowledge of a fact or risk relevant to charged offense; or (3) the defendant learned something which circumstantially provides evidence of knowledge (or recklessness) at the time of the crime; or when (4) other bad act(s) tend to prove the requisite knowledge by virtue of the doctrine of chances. Id. §§ 5:25 to 5:28.” (footnotes omitted) 
The Court of Appeals found only the fourth method, the doctrine of chances, applied. However, the Court of Appeals found the evidence inadmissible even under the doctrine of chances because the resulting injuries to A.C, the three year-old, and J.C., did not prove knowledge or recklessness. Simply put, A.C. did not suffer any serious bodily injury as a result of Mr. Casias’s actions. Thus, how could Mr. Casias know or consciously disregard a substantial risk (recklessly) from those prior acts to A.C. that his conduct here with J.C. would cause the resulting injuries to J.C.? He can’t. Conviction reversed.
>Link to People v. Casias here<

Colorado Court of Appeals - 3-15-12 - People v. Vecellio

People v. Vecellio            Conspiracy / Sexual Assault On A Child / Adult Chat Rooms
Facts: A cop in Fremont County pretended to be a mom who whores out her daughter. On the Adult Friend Finder website, the cop and Mr. Vecellio made contact. The cop claimed to have an incestuous relationship with her daughter, and set up a three way with Mr. Vecellio. Upon attempting to meet the fake mom and daughter, the police arrested Mr. Vecellio. The prosecution charged Mr. Vecellio with conspiracy to commit sexual assault on a child by one in a position of trust, solicitation to commit sexual assault on a child, attempted sexual assault on a child, and enticement of a child.
Issue: Whether, under the conspiracy statute, Colorado follows a unilateral approach or a bilateral approach?
Held: Unilateral.
Reasoning: The Court of Appeals found the issue to be one of first impression, and defined the differences: unilateral only requires one ‘true co-conspirator’; whereas bilateral requires at least two ‘true co-conspirators’. The Court of Appeals followed the unilateral approach.
Issue: Whether the trial court abused its discretion in allowing the prosecution cross-examine Mr. Vecellio about his sexual appetite for three-ways and other non-child, legal sex acts?
Held: Did it help demonize and convict Mr. Vecellio? Then no, no abuse of discretion.
Reasoning: Apparently none of the rape shield analysis applies to anyone accused of a crime. Thus, the more you can soil an accused with his sexual appetites and practices the better. Whereas, under rape shield, you cannot even mention the complaining witness so much as kissed someone without sending the Court, victims advocates, and the shills for the state into a downward spiral of hysteria.
Issue: Whether, with a fake kid, the prosecution provided sufficient evidence to convict Mr. Vecellio of enticement of a child?
Held: Yes.
Reasoning: Ignoring the fact that the legislature accounts for fake kids in other statutes to assign criminal liability and did not under the enticement statute, the Court of Appeals found the evidence to be sufficient. The Court of Appeals hinged its holding on the fact that the child need not perceive the acts, but only that the accused commit such acts to attempt to entice a child.

March 20, 2012

Colorado Court of Appeals - 3-15-12 - People v. Welliver

People v. Welliver            Restitution           
Facts: The prosecution claimed Mr. Welliver committed some fraud on his unemployment application, and as a result the state complained that it overpaid some seven thousand some odd dollars in unemployment. Mr. Welliver pled to a reduced charge and agreed to pay back the money. The District Court Judge, Judge Melonakis out in Adams County, did one better for the prosecution and the unemployment investigators - he imposed a 50% surcharge on top of the restitution. Judge Melonakis reasoned the statute, C.R.S § 8-81-101, called for the 50% surcharge. However, the prosecution did not charge Mr. Welliver under this specific statute. Instead, the prosecution charged Mr. Welliver under the general theft statute.
Issue: Whether the District Court abused its discretion in finding a 50% surcharge on the overpaid unemployment benefits applied?
Held: Yes.
Reasoning: The Court of Appeals looked at the definition of restitution under C.R.S. § 18-1.3-602(3)(a), and determined the 50% surcharge was neither a cost to recover an out of pocket expense nor was Mr. Welliver the proximate cause for such a surcharge. The District Court opined that the 50% surcharge amounted to part of the compensatory costs of recouping the funds. However, the Court of Appeals held the District Court abused its discretion. The Court of Appeals reversed the 50% surcharge portions of the restitution order. The Court of Appeals pointed out the state and prosecution, in all of their worldly wisdom, chose not to prosecute Mr. Welliver under the specific statute, C.R.S § 8-81-101, which allowed a 50% surcharge on the overpaid amount . Thus, the District Court did not have the authority or discretion to impose the 50% surcharge as part of the restitution order (side note: the unemployment compensation statute does not mandate criminal charges for fraudulent acts; the state could sue or pursue the loss through administrative law instead of hanging a felony on an indigent man).
>Link to People v. Welliver here<

March 15, 2012

Colorado Court of Appeals - 3-1-12 - People v. Ray

People v. Ray             Supplementing the Record on Appeal
Issues: Mr. Ray sought to supplement the record on appeal with off-the-record happenings – bench conferences, interactions of court staff with the jury, etc. Why the Court of Appeals chose to publish this decision at all cannot be discerned. It reads more like directions for appellate lawyers; a how-to or something like “Here’s How You Properly Supplement The Record – 101.” Given how the Court of Appeals buries reversals of convictions by not publishing those decisions, why now choose to publish this five-page how-to on amending the record on appeal?
Court of Appeals tip: No matter how annoyed the Court, the prosecutor, or the reporter get, do everything on the record – including the instructions conference, all bench conferences, and all directions given to the jury by the trial court. According to the opinion, defense counsel did not request that bench conferences be on the record. The trial court with the help of the defense and prosecution recreated the bench conferences. Mr. Ray then sought clarification of the recreated record. The Court of Appeals declined the request, “Ray now seeks clarification of the trial court's order. We deny that request and further decline to supplement the record with any reconstructed bench conference. The transcripts show that trial counsel could have had any bench conference recorded upon request. Under these circumstances, we cannot conclude that the unrecorded conferences were “omitted from the record by error or accident,” within the meaning of C.A.R. 10(e).”

March 14, 2012

Colorado Court of Appeals - 3-1-12 - People v. Delgadillo

People v. Delgadillo            Conflict of Interest
Facts: Twilight Zone: From allegations that allegedly occurred in 1995, the prosecution charged Mr. Delgadillo with sexual assault, burglary, and other charges. Mr. Delgadillo emigrated from Mexico, spoke little English, and needed the services of an interpreter. During trial, Mr. Delgadillo’s attorney put him on the stand to testify. During his testimony, Mr. Delgadillo addressed the potential sentence, and testified that he was looking at 25 to 30 years. The prosecution whined that the sentence was irrelevant.  The Court obligingly struck the testimony. After Mr. Delgadillo testified, the Court held an in camera hearing at the request of the prosecutor. The prosecution sought and the Court allowed Mr. Delgadillo’s attorney to testify to the advice the attorney gave regarding the sentence. The prosecutor, who convinced the trial court to strike the sentence testimony given by Mr. Delgadillo, stated her reason for calling for the attorney’s testimony was that she intended to impeach the client with the lawyer’s correct advice regarding the sentence. The Court simply told Mr. Delgadillo, “this in no way waives your attorney/client privilege.” Mr. Delgadillo’s attorney did not object, but instead testified to advising Mr. Delgadillo’s of the same sentence. The prosecution got all flummoxed, and told the Court she assumed the lawyer advised Mr. Delgadillo correctly (the Court of Appeals noted the lawyer did advise the client correctly as the 25-30 range could be achieved through consecutive sentences under pre-1998 law). The prosecutor also claimed to be ‘concerned’ about effective assistance of counsel. Mr. Delgadillo’s attorney told the court it should not concern itself with the ineffectiveness claim by the prosecution because, if it is an issue, it is one better left to a 35(c).
Issues: Whether Mr. Degadillo’s attorney’s testimony caused a conflict? If so, did that conflict harm Mr. Degadillo?
Held: Yes and yes.
Reasoning: The Court of Appeals held that only the client may waive the attorney/client privilege - not the prosecutor, the trial court, or counsel. Further, attorney/client privilege includes all statements the client made to the attorney, but also includes all statements and advice the attorney gave to the client. Simple rule derived from the case - a lawyer testifying against his or her client creates a conflict. The Court of Appeals stated, “At no point during the in camera proceeding was there a clear demarcation of when defense counsel had ceased testifying, and when, if at all, he was supposed to have transitioned back into the role of advocate. The record reflects defense counsel's inherent conflict in trying to simultaneously respond to questioning from the court and the prosecutor, justify his earlier advice to defendant, and remain a zealous advocate. See Maples v. Thomas, ––– U.S. ––––, –––– n. 8 (No. 10–63, Jan. 18, 2012) (noting law firm's conflict of interest in continuing to represent the defendant in post-conviction proceedings where, to protect the firm's interest in its own reputation, the firm failed to assert the strongest argument in his favor, namely, its abandonment of him). While laboring under these divergent pressures, defense counsel's ability to represent his client was materially limited.”.
>Link to People v. Delgadillo here<

March 9, 2012

Colorado Court of Appeals - 3-1-12 decision - People v. Carbajal

People v. Carbajal            Possession of a Weapon by a Previous Offender – Constitutional Defense
Facts: The police searched Mr. Carbajal’s home, and claim they found three handguns. Mr. Carbajal previously suffered a felony conviction, and thus, the prosecution charged him with three counts of possession of a weapon by a previous offender (POWPO). The prosecution hung its whole case on a modification of the stock affirmative defense instruction. The stock instruction comes from the Right to Bear Arms in the Colorado Constitution. Colo. Const. Art. II, § 13. Section 13 of Article II reads, “The right of no person to keep and bear arms in defense of his home, person and property, or in aid of the civil power when thereto legally summoned, shall be called in question….” The stock instruction reads, “It is an affirmative defense to the charge of [POWPO] that the defendant possessed a firearm for the purpose of defending himself, home, or property.” However, the prosecution asked and the trial court gladly added, “…from what he reasonably believed to be a threat of imminent harm,” to the stock instruction.
Issue: Whether the modification to the stock affirmative defense instruction which was based upon a substantive constitutional right violated Mr. Carbajal’s right to due process and fair trial?
Held: Yes.
Reasoning: The Court of Appeals highlighted the prosecutor’s cross-examination and closing argument - both of which the prosecutor wove around the faulty modification of the stock affirmative defense instruction. Further, the Court held despite the sky-will-be-falling and felons-everywhere-will-soon-possess-firearms hysterics by the State, that the prosecutor could make all the same arguments under the stock instruction. Moreover, the stock instruction does not impair the prosecutor’s cross-examination or limit the questions. Lastly, the Court held that the “modification to the instruction impacted (Mr. Carbajal’s) substantive rights, and therefore, was not harmless error.”

Colorado Supreme Court - criminal law decision - People v. Laeke

People v. Laeke            Insanity / Right to Jury Trial
Facts: While in the psychiatric ward of Denver General, Mr. Laeke supposedly exposed himself and attempted to commit a sexual assault. At the arraignment, over his objection, Mr. Laeke’s attorney pled not guilty by reason of insanity.  The prosecution stipulated to the plea, and the trial court then sent Mr. Laeke to the State Hospital. However, Mr. Laeke appealed. The Court of Appeals held that Mr. Laeke had both a statutory and constitutional right to jury trial on the issue of insanity. 
Issue: Whether a person still possesses a right to a jury trial when, over their objection, defense counsel pleads NGRI and the prosecution stipulates to insanity?
Held:  No.
Reasoning: Simply the Court held at no point did the legislature create a substantive right to a jury trial when the prosecution does not contest insanity. Further, the Court held no constitutional violation occurred because the statute allowed an NGRI plea over the objection of the accused.

February 21, 2012

U.S. Supreme Court - 2-21-12 - Howes v. Fields

Howes v. Fields            Miranda - Prison Inmate – Definition of Custody
Facts: While serving a prison sentence, two deputies interrogated Mr. Fields about an allegation unrelated to his current incarceration. Mr. Fields neither invited nor received any prior notice of the interrogation.  To get to the interview room, Mr. Fields walked through the secure prison, through doors, and down a floor. Although not handcuffed or chained, at no point did or could Mr. Fields walk ‘freely’ about the prison. At the beginning of the interrogation, the deputies used the magical language that all cops disingenuously use “you are not under arrest and you are free to go.” However, Mr. Fields could not leave un-escorted. When the interrogation finally ended, five to seven hours later, Mr. Fields waited 20 minutes prior to being let out of the interview room. During the interrogation, the doors closed and opened. Further, Mr. Fields got upset at the allegations, and the deputies cursed and ordered Mr. Fields to sit down at one point. Of course, the deputies extracted a supposed confession. Unfortunately, the 6th Circuit held that the U.S. Supreme Court categorically held that all prison interrogations constitute custody under Miranda, which prompted the U.S. Supreme Court  to grant certiorari. Even the dissent conceded, no such prior rule existed for prison interrogations. Once dispensing with the reason they granted cert, the Court then addressed whether the deputies and the prison held Mr. Fields in 'custody' during the interrogation.
Issue: Whether the prison and the deputies held Mr. Fields in custody during the interrogation?
Held: No.
Reasoning: Lay folks hate lawyers and what we do precisely because of reasoning such as this incongruous holding. You can hear someone now, "How can someone in prison not be in 'custody'!? (Along with some choice expletives like, WTF!??). Undeterred by common sense, actual circumstance or real rationale,  Justice Alito powered through, and minimized the actual custody which held Mr. Fields during the interrogation. Justice Alito focused on the disingenuous language “you are not under arrest and you are free to go at anytime”, the lack of restraints, and ignored the entire PRISON which held Mr. Fields during the entire interrogation. Hardly in prison voluntarily; not in his home; and not simply driving over to the cop shop for a talk. Instead, a prison held Mr. Fields. Justice Ginsberg, joined by Justices Breyer and Sotomayor, conceded the categorical rule of prison interrogations did not exist, but found under the facts of this case, law enforcement held Mr. Lewis in custody during the interrogation.

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