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) 

 >Link to People v. Douglas here<

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).

>Link to People v. Torrez here<

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 5^th 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).

>Link to People v. Bondurant here<

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.

>Link to People v. Brooks here< 

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

People v. Esparza            4^th 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?)

>Link to People v. Esparza here<

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. 

>Link to People v. Wilburn here<

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.

>Link to Rehberg v. Paulk here<

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.

>Link to Florence v. Board of Chosen Freeholders of County of Burlington here<