Colorado Court of Appeals 2-4-10

People v. Everett        Sexual Assault / CRE Rule 404(b)

The eighteen year-old complaining witness against Mr. Everett claimed that as she was waiting for friends when she asked Mr. Everett for a cigarette as he passed by. Mr. Everett said he did not have one, but a friend might. So, they walked to the friends house, sat on the grass, and talked. After awhile, according to the complaining witness, Mr. Everett made unwanted advances toward her. She claimed then she wanted to leave, but Mr. Everett forced himself on her and sexually assaulted her. When he finished, he said his name was 'Eric', he apologized,and said he just got out of prison. Pennsylvania previously convicted Mr. Everett of sexual assault. In Pennsylvania, according to the CofA, the "defendant sneaked into an apartment where an eighteen-year-old woman, whom he had known for three days, was sleeping. The woman woke up in her bed with defendant lying next to her. Defendant climbed on top of her as she lay on her back, forcibly put her legs on his shoulders, and held her down with his weight. She resisted, and repeatedly told him to stop, but he removed her pants and penetrated her anally. When he finished attacking her, he shook her hand. Defendant had previously told this woman that his name was 'Dylan.' Initially, the prosecution offered up every reason in the rule as a basis for admitting the Pennsylvania case into evidence. The trial court denied the prosecution's motion. However, the trial court reserved ruling to admit the Pennsylvania case if Mr. Everett pursued a defense of consent (which he did because of a DNA match). The trial court then allowed the prosecution to admit the Pennsylvania case to refute consent. The CofA affirmed the trial court's ruling. The Court stated, "Further, the court recognized Colorado law, including section 16-10-301(3), C .R.S.2009, when it stated that the prior sexual assault (1) was relevant; and (2) had “significant probative value” because it directly addressed the issues presented by the defense theory of consent."

Rule: all prior sexual acts by the defendant are probative of consent or lack thereof, but all prior sexual acts by any complaining witness are not probative ever -  PIG! How dare you!!!

Colorado Supreme Court 2-1-10

People v. Minor        Consent to Search  / Scope of Search Pursuant to Consent

Facts:

            Mr. Minor drove the car that the police stopped, while the owner of the car rode shotgun with another passenger in the back. Police claim some minor traffic violation to justify the stop. Upon stopping the car, one cop talks to the driver, the second cop searches the car and starts talking to the passengers. Second cop claims to see some baggie on the floor. Based upon this, the cop sought consent to search. Although contested, the trial court found Mr. Minor voluntarily consented. Cops rifle through everything in the car, including the trunk and a backpack in the trunk.

Held:

The Colorado Supreme Court reversed the suppression order, and held:

1)      The driver, while not the owner, possesses the authority to consent to a search;

2)      If the consent is general, the scope of that consent extends to the trunk of the car

3)      If the consent is general, the scope of that consent extends to any personal effects in the trunk, in this case, a backpack (as long as nothing is destroyed during the search)

People v. Crippen     Search Warrants / Staleness

In an embezzlement / white-collar crime case, the trial court granted the suppression order because the warrant was both stale and lacked probable cause. The Colorado Supreme Court reversed. The Court held:

Although the affidavit in this case was hardly a model to be emulated, failing as it did to identify the person conducting the audit, specify the timing and circumstances of its commission or attach a copy of the audit in question, under the unique circumstances presented here, the reliability of the information contained in the affidavit was nevertheless discernible from its nature and detail alone.

Further, the Court held the two-year span between  the audit, which disclosed the alleged illegality, and the execution of the warrant did not render the warrant stale in an embezzlement case.