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.

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