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.

February 18, 2012

Colorado Court of Appeals - 2-16-12 criminal law decision - People v. Sexton


People v. Sexton            Medical Marijuana – Affirmative Defense & Waiver of Doctor/Patient Privilege
Facts: Mr. Sexton operated a legal marijuana growing operation. However, the prosecution charged Mr. Sexton with cultivation for growing plants in excess of the size limit and not keeping complete, legible records for whom he grew the marijuana. Mr. Sexton asserted the Medical Marijuana Amendment as a defense. During trial, the prosecution called Mr. Sexton’s doctor without a waiver from Mr. Sexton. The jury convicted Mr. Sexton possession of more than 8 ounces of marijuana.
Issue: Whether by asserting a defense under the Medical Marijuana Amendment, Mr. Sexton waived his doctor/patient privilege?
Held: Yes.
Reasoning: The Court of Appeals held, “Here, by raising the affirmative defense of medical use, defendant validly waived his privilege under section 13–90–107(1)(d). Thus, the physician's rebuttal testimony concerning his conversations with defendant was a lawful disclosure under section 13–90–107(1)(d), rather than an unlawful disclosure of defendant's confidential medical marijuana patient registry information. Accordingly, we conclude, as did the trial court, that the written waiver requirements of section 18–18–406.3(5) simply did not apply.”

Colorado Court of Appeals 2-2-12 People v. Watkins


People v. Watkins            Probation Conditions – Medical Marijuana – Definition of ‘Offense’
Facts: Mr. Watkins smokes marijuana legally under Colorado’s Medical Marijuana, voter initiated and approved, constitutional amendment. The trial court refused to bar Mr. Watkins from smoking dope with a license while on probation. The prosecution, of course, whined, complained, and appealed the allowance.
Issue: Whether medical marijuana constitutes an offense, and thus, disallowed under a probationary sentence?
Held: Yes.
Reasoning: The Court of Appeals simply reasoned that medical marijuana is a criminal offense under federal law. Thus, the trial court abused its discretion by allowing continued marijuana use while under a probationary sentence. What this case is really about - DA’s, many judges, and cops know legalization of marijuana reduces their power. Thus, like petulant children, each constantly tries to undermine the amendment passed by the citizens of Colorado. Whether people dig smoking dope or not, everyone should be concerned when courts, DAs, and police attempt to undermine Democracy. The Medical Marijuana Amendment does not infringe on anyone else’s rights, privileges, or well being - unlike the anti-Gay Amendments presented/passed in Colorado and the U.S., unlike any fictionally titled 'Victim's Rights Amendments' that cops and DAs hoodwinked the populace into passing in the late '80's, and unlike a multitude of other amendments passed or bandied about in the U.S. during the last half-century that limit rather than expand the rights of citizens.

Colorado Court of Appeals 2-2-12 People v. Chirico


People v. Chirico  Self-Defense - Totality of the Circumstances - 'Citizen's Arrest' / Improper Instruction / Harmless Error
Facts:  Only in my town, Boulder, Colorado, would a jury convict Mr. Chirico of anything. Super Champ (the complaining witness), attending a kegger, thought he’d be a super hero. After he heard what he assumed was Mr. Chirico damaging the fence in front of the house holding the kegger, Super Champ, ‘somewhat intoxicated’, went out to confront Mr. Chirico. Super Champ called Mr. Chirico and three others with Mr. Chirico ‘babies’, ‘fucking pussies’, and threatened to ‘kick all their asses’ and ‘kill all of them’. Showing the patience of Zen Master, Mr. Chirico did not unleash a reasonable beat down on Mr. Keg-Party Hero, but instead walked away. Not content, Super Champ then got into Mr. Chirico’s face, talked ‘smack’ to Mr. Chirico, grabbed Mr. Chirico’s shirt collar, and pushed him. Finally, Young Kane err Grasshopper err Mr. Chirico exchanged punches with Super Champ; the two wrestled to the ground; and finally, Mr. Chirico put Super Champ in a headlock. While holding the headlock, Mr. Chirico landed a few well-earned punches and broke some bones in Super Champ’s face. Instead of celebrating Mr. Chirico for protecting himself from a bully, Boulder charges him with 2˚ assault. The prosecution ran the argument that because Super Champ was merely attempting to effectuate a citizen’s arrest, Mr. Chirico had no right to employ self-defense. To bolster the prosecution’s theory, the trial court’s instructions included this DA submitted gem, “Because every person is presumed to know the law, it is presumed that the defendant knew the person could employ lawful force against him if the defendant committed a crime in the person's presence.” Curiously, the prosecution never charged Mr. Chirico with criminal mischief for damaging the fence. The jury convicted Mr. Chirico of the lesser 3˚ assault. Mr. Chirico appealed.
Issue: Whether the idiotic and false instruction conjured up by the DA and submitted to the jury deprived Mr. Chirico of a fair trial by denying his right self-defense?
Held: Yes.
Reasoning: The Court of Appeals, timidly, reversed the conviction, and wrote “Thus, although the presumption instruction, in general, did not misstate the law, we conclude that it was error to give it to the jury in this case.” (Italics in the original). The District Court and Court of Appeals got caught up in the DA’s hyperventilating about ‘citizen’s arrest’ and the lawful use of force a citizen may use to effectuate an arrest. However, the Court of Appeals finally cut through the Boulder BS: no one in their right mind would ever believe Super Champ was looking to arrest someone, and anyone, in the shoes of Mr. Chirico would see Super Champ’s actions, demeanor, and words as a bully seeking retaliation. Further, the presumption language placed a false burden upon Mr. Cirico. The prosecution lifted this instruction from People v. Hayward, 55 P.3d 803, 806 (2002). However, as the Court of Appeals noted, Mr. Hayward sought to use self-defense as a trespasser against an occupant employing force under the Make My Day statute. Under Make My Day the occupant may unleash a coup de grace upon a trespasser. Here, the only consideration for the jury is the totality of the circumstances from Mr. Chirico's point of view. Mr. Chirico objected to the idiotic instruction during trial, and the Court of Appeals held that the error could not be harmless beyond a reasonable doubt. Steven Louth not only represented Mr. Chirico on appeal, but also tried the case. Nice work, Mr. Louth.

February 16, 2012

Colorado Court of Appeals 2-2-12 People v. Davis


People v. Davis            35(c)
Facts: Subsequent to a getting his parole revoked, Mr. Davis filed a 35(c) in the district court. Upon receipt of Mr. Davis’s motion, the trial court referred the motion to the Attorney General’s Office, but did not forward the same to the Public Defender. When Mr. Davis learned that the district court referred the matter to the Attorney General, he requested the district court appoint him a lawyer to represent him on the 35(c). The trial court denied Mr. Davis’ request for counsel. Further, after receiving an affidavit from DOC and a response from the Attorney General, the district court denied Mr. Davis’ motion without a hearing.
Issue: Whether the district court erred in referring the 35(c) motion to the prosecution but not the Public Defender?
Held: Yes.
Reasoning: The Court of Appeals reasoned the district court could have denied the 35(c) motion on its face. However, the Court of Appeals held that Rule 35(c) requires the court to send a copy to the Public Defender if the court seeks input from the prosecution.

Colorado Court of Appeals 2-2-12 People v. Herrera

People v. Herrera            Abuse of Discretion – In Camera Review of Social Service Records / Relevancy of First Communion Photos
Facts: The prosecution charged and a jury convicted Mr. Herrera of various counts of sexual assault on a child. The case involved his two cousins as complaining witnesses. Social services had previously filed a dependency and neglect case on one cousin. The DA in the case sought and obtained the social service records. Upon reviewing the records, the prosecution disclosed the records contain potentially exculpatory evidence, and sought an in camera review of the records. The trial court did not cede to the prosecution’s request. Instead the trial court threw the issue over to the defense to file a motion regarding records - records the defense attorney had never seen. The trial court then denied the defense motion for an in camera review of the records. Subsequently, the prosecution again sought for an in camera review of the records. The defense joined the motion. Again, the trial court denied the motion, and refused to conduct an in camera review of the records.
Issue: Whether the trial court abused its discretion in refusing to conduct an in camera review of the social service records?
Held: Yes.
Reasoning: The Court of Appeals held simply, “Where a prosecutor has requested the court's in camera review of confidential social services records based on a reasonable belief that they contain exculpatory, impeaching, or inculpatory information that would materially assist in preparing the defense,
we conclude that the defendant's burden to request disclosure has been satisfied.” The Court remanded the case to the trial court, and ordered the trial court to conduct an in camera review.
Issue: Whether the trial court erred in admitting photographs of each child at their first communion?
Held: No.
Reasoning: The defense claimed the pictures were neither relevant nor, if relevant, admissible under CRE Rule 403. The Court of Appeals found the photos relevant because each showed the child as the child appeared at the time of the offenses. The Court buried its collective head in the sand or somewhere else by denying the substantial prejudice. The Court wrote, “While the photographs of the children apparently praying may have evoked sympathy in the jury, we are not persuaded, however, that their admission was unfairly prejudicial so as to constitute an abuse of discretion.” Communion. Praying. Little kids at their first communion. What could possibly be more prejudicial and irrelevant in a sexual assault on a child? Horrible holding.
>Link to People v. Herrera here<

Colorado Court of Appeals 2-2-12 People v. Wartena


People v. Wartena   Lesser Non-Includeds – Re-Trial – Double Jeopardy / Burglary – intent to commit a crime therein
Facts: This unfortunate day for Mr. Wartena started when he and a friend stole a truck, a license plate, and items from another car. The thefts got the attention of the eye-witness in the case. The eye-witness called the police and followed the pair as they drove the stolen truck. At some point, Mr. Wartena shot at the eye-witness. Subsequently, the police chased the pair in the stolen truck. During the chase, Mr. Wartena’s co-defendant lost control of the truck, hit an SUV, and killed a passenger in the SUV. Mr. Wartena and the co-defendant escaped on foot, and took refuge in a barn. By the time they had gotten to the barn, Mr. Wartena lost his shoes. The prosecution claimed the boots Mr. Wartena wore when the police arrested him came from the barn.
The prosecution charged a slew of crimes with the most serious being 1˚ extreme indifference murder for the dead person in the SUV, and attempted murder for shooting at the eye-witness. The first trial ended in a hung jury on the most serious charges, but the jury convicted Mr. Wartena on lesser non-included offenses the defense submitted. Upon re-trial, the defense argued for a judgment of acquittal on the burglary because the prosecution failed to prove that Mr. Wartena formed the requisite intent to commit theft prior to entering the barn. The trial court denied the motion. Further, the trial court refused to submit the same lesser non-includeds the defense submitted and the jury convicted on in the first trial. The trial court reasoned that Double Jeopardy barred re-trial on those same charges. The jury hung again after the second trial, and the prosecution eventually dismissed the 1˚ murder charge against Mr. Wartena. However, the jury returned guilty verdicts on other charges, including burglary. Great work by the trial lawyers - Nancy Holton and Rex Hegyi.
Issue: Whether the requisite intent for burglary can be formed after entering the structure?
Held: Yes.
Reasoning: The Court of Appeals reversed centuries of law, and held that the intent  to commit the crime therein can be formed after entering the barn. The Court cited  the legislative change after the Colorado Supreme Court decided In Cooper v. People, 973 P.2d 1234, 1240 (Colo.1999)(where the Court held the requisite intent must be formed prior to entry of the structure). The Court of Appeals reasoned “the General Assembly amended the second degree burglary statute by adding the ‘after a lawful or unlawful entry’ language ... thus removing the requirement that intent to commit a crime exist at the time of entry.”  quoting People v. Larkins, 109 P.3d 1003, 1004 (Colo.App. 2004)(where the Larkins panel held intent may be formed after entry of the structure).
Issue: Whether the trial court may deny lesser non-included instructions on the basis a prior jury previously convicted the accused of the same charges?
Held: Yes.
Reasoning: The Court of Appeals held that if the instructions as a whole encapsulate the defense theory of the case, then the trial court may deny otherwise applicable lesser non-included instructions. On appeal the prosecution argued that the Double Jeopardy Clauses and issue preclusion barred the lesser non-includeds upon retrial. The Court of Appeals sidestepped the, Trujillo, to hold that even though the evidence supported the lesser non-included offense instructions, the trial court did not deny Mr. Wartena due process because the instructions as a whole encompassed his theory of defense.

February 13, 2012

Colorado Supreme Court 2-13-12 criminal law decision - Lucero v. People


Lucero v. People             1˚ Burglary / Various Counts of Theft vs. Theft in a Series
Facts: A jury convicted Mr. Lucero of three counts of theft and 1˚ burglary. The thefts all took place during a six-month period, and Mr. Lucero never used or intended to use a deadly weapon during the burglary. Instead, the evidence only showed that Mr. Lucero stole some guns during a burglary.
Issue: Whether simply stealing guns amounts to using a deadly weapon during burglary?
Held: No.
Reasoning: Prior to 1981, such a factual scenario of simply stealing guns would get someone convicted of 1˚ burglary, a class 3 felony, rather than a less serious 2˚ burglary, a class 4 felony. However, in 1981 the legislature changed the statute removing any possible 'per se deadly weapon' reading, and thus excluded scenarios of simply stealing guns during a burglary. Here, in Mr. Lucero’s case, the Colorado Supreme Court held the statutory change specifically excluded scenarios where someone simply steals guns but does not use or intends to use the guns. (see identical holding in Montez v. People decided 2-13-12)
Issue: Whether three thefts in a six-month period must be merged into one count of theft under the theft-series statute?
Held: Yes.
Reasoning: In Roberts v. People, 203 P.3d 513 (Colo. 2009), the Supreme Court held that a series of thefts within a six-month period must be brought under a single theft count (statute since overruled the 2009 Roberts decision). Here, the jury found Mr. Lucero committed numerous thefts from different homes and automobiles between August 22, 2000, and September 18, 2000. Thus, the Supreme Court held that Mr. Lucero could only be convicted of one count of theft under the statute in place at the time the crimes occurred. The Court wrote, “On the first certiorari issue, we hold that Lucero cannot be punished for all three alleged thefts.  As in Roberts, the statute in effect at the time of Lucero’s acts provided that multiple thefts within a six month period must be merged into a single theft conviction, in this case theft in the aggregate value of $15,000.00 or more.”

Colorado Supreme Court 2-13-12 criminal law decision - Montez v. People

Montez v. People       1˚ Burglary / Deadly Weapon – ‘used or intended to be used’
Facts:   Phelicia Kossie and I tried Mr. Montez's case together – escape, burglary, and habitual offender counts (4 x the maximum presumptive range). The jury walked Mr. Montez on the escape (ISP Parole case - he cut off his bracelet; cops arrested him in Lakewood; and the jury found that Mr. Montez never left the area of his extended confinement - the Denver Metro Area). However, the jury convicted Mr. Montez of 1˚ degree burglary and the habitual counts. Mr. Montez, according to the evidence, broke into a home and stole a gun case with two guns in the case. Quickly after the break-in, police arrested the hapless Mr. Montez as he walked down the street with the gun case in tow. Mr. Montez never used or threatened to use the guns, and the prosecution never alleged such.
Issue:   Whether simply stealing guns amounts to using a deadly weapon during burglary?
Held:   No.
Reasoning:   Prior to 1981, Colorado Supreme Court precedent held that a firearm qualifies as a ‘per se deadly weapon’. Thus, under this prior precedent, simply stealing guns in a burglary would bump the burglary up from a 2˚ burglary, a class 4 felony, to 1˚ burglary, a class 3 felony. However, in 1981 the legislature changed the statute. The legislature wrote the statute to remove any possible reading of ‘per se deadly weapon’. The statutory change essentially overruled the Colorado Supreme Court’s prior precedent. Under the current statute to qualify as using a deadly weapon during the commission of the burglary, the accused must use or intended to use the firearm – not simply possess or steal.  Thus, here in Mr. Montez’s case, the Colorado Supreme Court held the statutory change back in 1981 specifically excluded scenarios where someone simply stole guns during a burglary. Elizabeth Griffin in the Appellate Division of the Colorado Public Defender’s Office did a helluva job, both in the Court of Appeals and the Colorado Supreme Court. Instead of dying in prison, Ms. Griffin gave Mr. Montez a chance of seeing daylight.
>Link to Montez v. People<

February 2, 2012

United States Supreme Court decision - Reynolds v. United States - Sex Offender Registration

Reynolds v. United States            Federal Sex Offender Registration
Facts:            Mr. Reynolds served prison time for a sex offense in Missouri from 2001. After Missouri released him, he moved to Pennsylvania. The Government claimed he did not give notice to Missouri of his change in residence, a violation of federal statute. Subsequent to his conviction, Congress passed its latest version of the sex offender registration statute. Never one to miss a chance at being petty, the government indicted Mr. Reynolds for not telling Missouri where he moved.
Issue: Whether the latest version of the federal sex offender registration statute applied people convicted prior to the statute’s enactment?
Held: No.
Reasoning: The Court reasoned that the Act does not apply to anyone convicted prior to its enactment until the Attorney General so specifies. At the time, the Attorney General had yet to specify the statute applied to folks like Mr. Reynolds. 
Link to Reynolds v. United States here

United States Supreme Court - Ryburn v. Huff - 4th Amendment - Unreasonable Searches - Police/Cop Qualified Immunity

Ryburn v. Huff    4th Amendment - Unreasonable Searches  - Police/Cop Qualified Immunity        
Facts: A principle at a high school gets word of some threat. According to students, the threat came from Vincent Huff, a student often bullied at school (of course the police claim this fit the ‘profile’ of a school shooter). The Burbank, CA police arrive to investigate, but Vincent Huff was absent. The police go to Vincent’s home. Vincent’s mother refused to allow the cops entry into their home. The police beg, and again she refuses. The opinion claims the police asked Ms. Huff if there are any guns in the home. In response, the police claimed that Ms. Huff turned and ran into the house. The police, of course, followed Ms. Huff into her home uninvited. Upon entering the home, Vincent Huff’s dad confronted the police and questioned their authority to be in his home. The police claimed they left 10 minutes later. At no time during this investigation did the police seek or possess a warrant authorizing entry or a search the Huff home. The lower courts denied immunity to the police. 
Issue: Whether qualified immunity protects the police? 
Held: Yes.
Reasoning:   No Justice put his or her name to the decision; the Court issued it Per Curium. Nevertheless, the Court goes through a litany of reasons why Ms. Huff raised officer suspicions, but none discloses any criminal conduct (further, no mention that parent involvement also fit the profile of school shooters). For example: Ms. Huff refuses to speak to the police when they call; Ms. Huff declined to discuss anything with the police when they arrived; Ms. Huff refused the police entry into her home. Thus, instead of exhibiting criminal behaviour, Ms. Huff, uniquely and unambiguously exercised her constitutional rights. Unfortunately the Court disagreed, found qualified immunity, and recited the testimony of one of the cops, “Ryburn’s experience as a juvenile bureau sergeant, it was ‘extremely unusual’ for a parent to decline an officer’s request to interview a juvenile inside.” Somehow all this equates to reasonable officer conduct, and thus, immune from any civil suit. The Court essentially bought the line of exigent circumstance - despite it being an exigency of the police officers' own imagination and creation, that is officer safety. 
Link to Ryburn v. Huff  here

United States Supreme Court - U.S. v. Jones - 4th Amendment - Warrantless Search - GPS Tracker

United States v. Jones            Warrantless Search – GPS Tracker
Facts: The Government obtained a warrant to put a GPS tracker on a suspected drug trafficker’s car. The trial court granted the motion, but directed the Government to put the tracker on the car within 10 days of the order. The Government affixed the GPS tracker to Mr. Jones' car on the 11th day – outside the time limit for the warrant.
Issue: Whether tracking people with a GPS tracker amounts to a search or seizure under the Fourth Amendment?
Held: Yes.
Reasoning: Justice Scalia wrote the majority opinion. Although no Justice dissented, the Court produced three opinions, the majority and two concurring opinions.
            The Government hinged its case on Katz v. United States, 389 U.S. 347 (1967), where, in concurrence, Justice Harlan formulated the definition of a search, “My understanding of the rule that has emerged from prior decisions is that there is a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as ‘reasonable.’” (citations omittedThus, the Government, hereclaimed because all of the vehicle's movements could be viewed in the open by anyone, Mr. Jones had no reasonable expectation of privacy.
Justice Scalia reached back past Katz, to when Supreme Court jurisprudence only defined searches to be some trespass onto property. However, Justice Scalia reasoned, “As Justice Brennan explained in his concurrence in Knotts, Katz did not erode the principle ‘that, when the Government does engage in physical intrusion of a constitutionally protected area in order to obtain information, that intrusion may constitute a violation of the Fourth Amendment.’ We have embodied that preservation of past rights in our very definition of ‘reasonable expectation of privacy’ which we have said to be an expectation ‘that has a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.’”
Justice Alito quarreled with the Court’s ‘reviving’ of old trespass tort law to decide the case. Justice Alito, with Justices, Kagan, Ginsberg, and Breyer joining, wrote a concurring opinion that would have simply decided the case in favor of Mr. Jones under the reasoning of Katz.
Nevertheless,  every Justice agreed that tracking people in the United States without a warrant or in excess of a warrant (as was done here) amounts to unconstitutional conduct by the Government.
Link to United States v. Jones here

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