Colorado Court of Appeals criminal law decision 7-7-11

People v. Hopper             Search Incident to Arrest and Automobile Searches (Pre Arizona v. Gant) / Mens Rea and Special Offender / Newly Discovered Evidence

Facts: Mr. Hopper and two other men jumped into his car, drove, and then some devious cops stopped the car to execute arrest warrants on the two men riding as passengers. The case went to trial before Arizona v. Gant (no more “search incident” to arrest to justify rummaging through a car – well sort of).  Thus, claiming search incident to arrest, the police ransacked Mr. Hopper’s car, and claimed to have found drugs under the driver’s seat (where Mr. Hopper sat), a rifle on the back seat, a sawed-off shotgun on the front passenger floorboard, and a pistol on the rear floorboard. As a result, the prosecution charged all three men. Unfortunately, a jury convicted Mr. Hopper of a class 4 felony possession with a special offender enhancer. However, in seemingly contradictory verdicts, the jury did not convict Mr. Hopper of either possession of a weapon by a previous offender or of possession of a dangerous weapon. The District Court, in fear laden Delta County Colorado, sentenced Mr. Hopper to 16 years with 5 years of parole. Mr. Hopper filed a motion for new trial based upon newly discovered evidence. Mr. Hopper brought in two witnesses, each unknown prior to trial, who both could have impeached one of the co-defendants, testified about who actually owned the guns and drugs, and testify as to the the intent of one co-defendant to pin the case on Mr. Hopper. The CofA affirmed Mr. Hopper's convictions, but threw him a bone by remanding the case to the trial court to impose 3 not 5 years of parole on a class 4 felony (derr...)

Issue: Whether the evidence seized from the car should be suppressed under Arizona v. Gant?

Held: No.

Reasoning: Pretty simple, in Davis v. United States -- U.S. -- (decided 6-16-11), the U.S. Supreme Court limited the reach of Gant to cases after its decision in Gant. (Justice Alito, in full-bitter prose, authored Davis, laments his loss in Gant, and tried to save search incident automobile searches with Davis). Thus, Justice Alito scored a victory here in Colorado because the CofA fell all over itself following Davis. The CofA simply concluded that because this case went to trial prior to Gant, the police acted in good faith by following the search incident rule prior to Gant. Hahahaa.... never mind the fact that the police waited specifically until the two wanted suspects got into Mr. Hopper's car to execute the arrest warrant, and thus, hoped to acquire evidence pursuant to a search incident to arrest. 

Issue: Does “special offender” require proof any mens rea?

Held: No.

Reasoning: Mr. Hopper claimed he did not know about any weapons or drugs in his car. However, the CofA could care less if that claim were to be true or not, and followed unfortunate precedent in Whitaker v. People, 48 P.3d 555, 560 (Colo.2002) and People v. Ramirez, 997 P.2d 1200, 1205, 1208 (Colo.App.1999). Here is how the court simply folded its hands, “Such a result may be harsh. However, given the well-known potential for danger that exists whenever drugs and deadly weapons are present, the General Assembly could well have concluded that a person possessing drugs is obliged to ensure that guns are not available for use or risk increased punishment otherwise.” (Now, its all A-OK to convict people for acts they did not commit – here, not frisking and searching two guys armed to the hilt and being sought by the police. Who doesn’t love this country?)

Issue: Whether two inmates’ testimonies contradicting a co-defendant qualify as newly discovered evidence?

Held: No.

Reasoning: “To succeed on a motion for new trial based on newly discovered evidence, a defendant must show that (1) the evidence was discovered after the trial; (2) the defendant and his counsel exercised diligence to discover all possible evidence favorable to the defendant prior to and during the trial; (3) the newly discovered evidence is material to the issues involved, and not merely cumulative or impeaching; and (4) on retrial the newly discovered evidence would probably produce an acquittal. People v. McNeely, 222 P.3d 370, 376 (Colo.App.2009).” The CofA reasoned Mr. Hopper did indeed meet the first two prongs, but not the last two because the testimony of each witness was cumulative of testimony given at trial, and the issue was possession not ownership of the guns and drugs.

Colorado Supreme Court 6-27-11 - criminal law - People v. Santana

People v. Santana            Burden Shifting

Facts: Mr. Santana did not understand the target demographic for his product, and chose poorly. Thus, Mr. Santana called out to an undercover cop whether he wanted any ‘dope’ - crack. The undercover cop, of course, said sure, and Mr. Santana sold the cop some dope. No one conducted definitive tests on the substance. The prosecution only called the undercover cop and submitted a lab report that claimed the substance to be crack. No lab analyst for the state testified to the contents of the actual report (an error not addressed in the appeal. See Bullcoming v. New Mexico) Nevertheless, a jury convicted Mr. Santana, but the Court of Appeals reversed his conviction. The CofA held that the prosecutor in questioning the defense expert and in closing argument shifted the burden to the defense. The defense expert testified about the drugs – crack. On cross-examination of the defense expert, the prosecution asked the expert if he had the capability to do independent testing on the crack. Answer: yes. The prosecution asked him if given the opportunity whether the expert would have tested the drugs? Answer: yes. Finally, the prosecution asked the expert if he had tested the substance, whether his tests would definitively conclude whether the substance was indeed crack. Answer: yes. According to the Court the prosecution argument went accordingly, “In his closing argument, the prosecutor told the jury that they should not consider closing arguments as evidence, and then proceeded to discuss the evidence in the case, including the defense’s expert witness’s testimony. The prosecutor compared the evidence offered by the prosecution with the evidence offered by the defense’s expert, stating that all the expert did in this case was to review two documents and say that the substance ‘wasn’t absolutely cocaine.’ The expert ‘didn’t tell you about any analysis he did. He didn’t tell you about whether he spoke to’ the undercover officer or chemist who ran the tests.”

Issue: Whether the prosecution through cross-examination of the defense expert and in closing argument improperly shifted the burden?

Held: No.

Reasoning: The Court unanimously held the prosecution did not shift the burden. Justice Martinez wrote the decision. The Court came up with a three-part test to determine if the prosecution improperly shifted the burden. The Court wrote:

When assessing the strength of the prosecution’s burden-shifting actions and whether they have shifted the burden of proof, courts mainly consider the degree to which:

(1) the prosecutor specifically argued or intended to establish that the defendant carried the burden of proof;

(2) the prosecutor’s actions constituted a fair response to the questioning and comments of defense counsel; and

(3) the jury is informed by counsel and the court about the defendant’s presumption of innocence and the prosecution’s burden of proof.

The Court simply reasoned that based upon the totality of the record, the prosecution rebutted the defense implication, and never explicitly argued that the defense had any burden of proof. The Court wrote:

“Indeed, close examination of the entire record shows that the prosecutor’s questions and comments were likely not designed to imply that the defendant bore the burden of proof, but were instead aimed at: (1) clarifying the defense’s expert witness’s testimony; (2) rebutting the implications -- raised by the defense -- that the prosecution failed to offer conclusive test results because those results would exonerate the defendant; and (3) highlighting the strength of the prosecution’s case.”