The Tenth Circuit Court of Appeals published its opinion in United States v. Cartwright on Wednesday, May 23, 2012.

The Tenth Circuit affirmed the district court’s sentence. Petitioner was convicted of being a felon in possession of ammunition. “The probation office prepared a Presentence Investigation Report (PSR) that classified [Petitioner], based on three prior Oklahoma burglary convictions, as an armed career criminal subject to a 15-year minimum sentence under the ACCA. [Petitioner] objected to that classification, arguing two of the three identified crimes did not qualify as ‘burglary convictions’ within the meaning of § 924 [of the ACCA]. The district court overruled [Petitioner]’s objections to the PSR and sentenced him accordingly. [Petitioner] appealed, asking [the Tenth Circuit] to decide two questions: (1) whether an Oklahoma second-degree burglary conviction based on entry into a building by an instrument capable of completing the intended crime qualifies as a ‘burglary’ under the ACCA and, (2) whether a nolo contendere plea to another Oklahoma second-degree burglary conviction qualifies as a ‘conviction’ under the ACCA.”

The Court found that Petitioner’s illegal entry with a tool or instrument is encompassed by the definition of generic burglary under the ACCA. Additionally, Petitioner’s nolo contendere plea constitutes a predicate offense and the Government has met its burden of showing, by a preponderance of the evidence, that Petitioner’s prior conviction constitutes a “violent felony.” As such, because the Government has shown that Petitioner has three prior violent felony convictions for purposes of the ACCA, the decision of the district court was affirmed.

Governor Hickenlooper continues to sign bills that cross his desk. To date, he has signed over 200 bills into law.

Eight bills were signed by the governor on May 11, 2012. Three of them are summarized here.

• SB 12-123 – Concerning the Secretary of State’s On-Line Business Filing System, and, In Connection Therewith, Authorizing Enhancements to the System, the Designation of Commercial Registered Agents, and Changes to a Reporting Entity’s Anniversary Month and Making an Appropriation.
  Sponsored by Sen. Scott Renfroe and Rep. J. Paul Brown. The bill requires the Secretary of State to develop and implement changes to the online business filing system.
• HB 12-1114 – Concerning the Crime of Stalking.
  Sponsored by Rep. Millie Hamner and Sen. Gail Schwartz. The bill modifies the crime of stalking by requiring the issuance of a protection order at sentencing and requiring sentences including stalking charges to be served consecutively.
• HB 12-1140 – Concerning the Duties of the Department of Public Health and Environment as Coordinator for Suicide Prevention Programs Throughout the State.
  Sponsored by Rep. Matt Jones and Sen. Linda Newell. The bill allows but does not require the Department of Public Health to coordinate with hospitals in order to distribute resource materials to people who have attempted suicide.

On Tuesday, May 15, Governor Hickenlooper signed one bill into law, which bill is summarized here.

• HB 12-1086 – Concerning Implementation of Recommendations of the Committee on Legal Services in Connection with Legislative Review of Rules and Regulations of State Agencies.
  Sponsored by Rep. Bob Gardner and Sen. John Morse. The bill follows recommendations by the Committee on Legal Services regarding certain state agency rules and regulations.

Governor Hickenlooper signed five bills into law on Thursday, May 17, 2012, including HB 12-1238, the READ Act to promote early childhood literacy. This bill and two others are summarized below.

• HB 12-1238 - Concerning Literacy Education for Students Enrolled in Kindergarten Through Third Grade, and, In Connection Therewith, Creating the “Colorado Early Literacy Act” and Making and Reducing Appropriations.
  Sponsored by Reps. Tom Massey and Millie Hamner and Sens. Mike Johnston and Nancy Spence. The bill strives to ensure that children receive the education needed to ensure they are able to read and succeed in life.
• HB 12-1213 – Concerning the Penalty for a Person who Escapes from a Place of Confinement Other Than a County Jail or Correctional Facility.
  Sponsored by Rep. Rhonda Fields and Sen. Steve King. The bill exempts some felony escape charges from the designation of a habitual criminal.
• HB 12-1292 – Concerning Technical Modifications to Laws Relating to the Administration of Elections, and, In Connection Therewith, Harmonizing Current Laws with Federal Law, Altering the Time Periods Within Which Certain Actions Must Be Taken, Raising Certain Fees, and Deleting Obsolete References.
  Sponsored by Rep. Carole Murray and Sen. Rollie Heath. The bill makes various procedural and substantive changes to election laws.

Three more bills were signed into law on Friday, May 19, 2012. These are summarized here.

• HB 12-1276 – Concerning Child Care Licensure Waivers for Materials Related to a Child Care Center’s Curriculum.
  Sponsored by Rep. Crisanta Duran and Sen. Linda Newell. The bill allows child care centers to use certain materials in their curricula that previously were not allowed to be used without parental approval.
• HB 12-1286 - Concerning Film Production Activities in Colorado, and, In Connection Therewith, Making an Appropriation.
  Sponsored by Reps. Tom Massey and Mark Ferrandino and Sens. Linda Newell and Jean White. The bill attempts to encourage the production of films in Colorado by offering certain incentives.
• HB 12-1108 – Concerning the Authority of the Colorado Department of Transportation to Have Signs Within Rights-of-Way on the Highway System.
  Sponsored by Rep. Daniel Kagan and Sen. Mark Scheffel. The bill repeals certain sign restrictions for the Colorado Department of Transportation.

On Saturday, May 19, 2012, Governor Hickenlooper signed three more bills into law as he traveled throughout the state. These bills are:

• HB 12-1345 – Concerning the Financing of Public Schools, and, In Connection Therewith, Making and Reducing Appropriations.
  Sponsored by Rep. Tom Massey and Sen. Bob Bacon. The bill changes funding for students in K-12 education in Colorado.
• HB 12-1080 – Concerning Changing the Name of Adams State College to Adams State University.
  Sponsored by Rep. Ed Vigil and Sen. Gail Schwartz. The bill changes the name of Adams State College to Adams State University, and allows the school to provide some graduate level programs.
• SB 12S-002 – Concerning the Funding of Colorado Water Conservation Board Projects, and, In Connection Therewith, Making Appropriations.
  Sponsored by Sen. Gail Schwartz and Rep. Jerry Sonnenberg. The bill appropriates funds from the Colorado Water Conservation Board for certain water-related projects.

Finally, five more bills were signed by the Governor as he journeyed to Glenwood Springs and Grand Junction on Monday, May 21. Two of these are summarized here.

• HB 12-1329 – Concerning the County Treasurer Becoming the Public Trustee in Certain Counties Where the Public Trustee is Currently Appointed by the Governor.
  Sponsored by Reps. Ray Scott and Dan Pabon and Sen. Jeanne Nicholson. The bill allows the Board of County Commissioners for certain counties to include the budget for the Office of the Public Trustee in its budget. It also specifies which counties will have appointed public trustees.
• HB 12-1042 – Concerning a State Income Tax Credit Related to the Portion of Colorado Estate Taxes Paid that are Attributable to Agricultural Land.
  Sponsored by Rep. Sal Pace and Sen. Gail Schwartz. The bill allows a state income tax credit for certain agricultural lands equal to the amount of an estate tax credit.

A complete list of Governor Hickenlooper’s legislative decisions is available here.

The Colorado Supreme Court issued its opinion in People v. Funez-Paiagua on May 21, 2012.

Fourth Amendment—Suppression of Evidence—Reasonable Suspicion—Investigatory Stop.

The Supreme Court reversed the trial court’s order suppressing evidence seized from defendant. The Court held that officers had reasonable suspicion to justify an investigatory stop of Adolph Funez-Paiagua. The facts and circumstances known to the officers at the time of the stop were: (1) it was 1:15 a.m.; (2) criminal activity recently had increased in the area; (3) Funez-Paiagua was standing on the private property of an auto body shop; (4) the shop was closed; (5) no other businesses in the area were open; (6) no other people were nearby; (7) the officer heard a loud crash; (8) Funez-Paiagua fled; and (9) Funez-Paiagua was carrying bags.

The Fourth Amendment to the U.S. and Colorado Constitutions holds that warrantless seizures generally must be supported by probable cause, but an investigatory stop based on reasonable suspicion is an exception to this general rule. The Court held that the facts of the case created reasonable suspicion to justify the investigatory stop.

Summary and full case available here.

The Colorado Supreme Court issued its opinion in In re People v. Angel on May 14, 2012.

Rules of Criminal Procedure—Discovery—Prosecutorial Work Product.

The Supreme Court determined that Crim.P. 16(I)(e)(1) protects against the disclosure of a prosecutor’s opinion work product, and made the rule absolute. The Court reversed the district court’s discovery order and held that the prosecutorial work product exception under Crim.P. 16(I)(e)(1) protects from compelled disclosure all opinion work product prepared by the prosecution in anticipation of any criminal prosecution. The Court remanded the case to the district court to determine, through an in camera, ex parte review, whether the contested materials contain protected prosecutorial opinion work product.

Summary and full case available here.

The Tenth Circuit Court of Appeals published its opinion in United States v. Handley on Tuesday, May 15, 2012.

The Tenth Circuit affirmed the district court’s sentence. Petitioner appeals his sentence, following revocation of his supervised release for drug use and “imposition of a new term of incarceration of twelve months and supervised release of four years, on grounds his supervised release exceeds the amount allowed by law.” The Court determined that “because the maximum allowable term of supervised release is life . . . , the district court could impose a four-year term of supervised release following [Petitioner]’s incarceration. Moreover, the district court’s imposition of four years of supervised release in this case is both ‘reasoned and reasonable’ given [Petitioner]’s failure to deal with his drug issues, obvious need for mental health and substance abuse treatment, and multiple violations of the conditions of his prior terms of supervised release.”

The Colorado Court of Appeals issued its opinion in People v. Krueger on May 10, 2012.

First-Degree Murder—Substitute Counsel—Advisory Counsel—Search Warrant—Prosecutorial Misconduct—Evidence—Felony Convictions—Mistrial.

Defendant Ryan Krueger appealed the judgment of conviction entered on jury verdicts finding him guilty of first-degree murder and conspiracy to commit first-degree murder. The Court of Appeals affirmed the judgment of the district court.

Defendant contended that the district court erred by declining to appoint substitute counsel because he had a conflict with the assigned public defenders, thus making his waiver of his right to counsel ineffective. However, a criminal defendant does not have either a right to review all discovery materials obtained by his counsel or a constitutional right to testify at a pretrial suppression hearing where his counsel decides not to call him as a witness. The Court therefore determined that the district court did not err in finding that defendant had failed to establish good cause warranting substitution of counsel on this basis.

Defendant also contended that the district court erred by (1) declining to continue the first trial and appoint advisory counsel to represent him; and (2) failing to advise him that it could appoint advisory counsel to represent him in the second trial. Both contentions, however, are premised on his assertion that his waiver of the right to counsel was ineffective. Because his waiver was effective, these arguments were rejected.

Defendant further argued that the district court erred by admitting wiretapped phone conversations and cell phone records because the search warrants were based primarily on stale information. The search warrants, however, were not for tangible evidence that could have been destroyed or removed since the murder. Therefore, the affidavits alleged sufficient facts that a person of reasonable caution would believe that communications about the murder would soon take place on the phones for which records and wiretaps were being sought.

Defendant also argued that the district court abused its discretion by allowing prosecutorial misconduct. The Court determined that the district court did not abuse its discretion by allowing the prosecutor’s remarks that they could not subpoena a witness to testify and that a question is not evidence, regardless of whether an attorney or a pro se defendant asks it.

Defendant claimed the district court abused its discretion by allowing the prosecution to introduce evidence of his felony convictions to impeach his statements introduced through cross-examination of another witness. However, because defendant got his own exculpatory statements into evidence through another witness, he opened the door to introduction of his felony convictions.

Defendant next contended that the district court abused its discretion by denying his motions for a mistrial after (1) his wife testified that she had met him in jail before trial, and (2) two witnesses implied that he had been tried previously for the murder. The prosecutor asked whether (not where) defendant’s wife had met with defendant on the specified dates. Additionally, neither witness testified that defendant previously had been tried for the charges then at issue. Thus, the drastic remedy of a mistrial was not warranted.

Summary and full case available here.

The Colorado Court of Appeals issued its opinion in People v. Garcia on May 10, 2012.

Sexual Assault—Prosecutorial Misconduct—Closing Argument—Motion to Sever—Insufficient Evidence—Sentence Enhancer—Jury Instructions.

Defendant Jamie Garcia appealed the judgments and sentences entered on jury verdicts convicting him of three counts of sexual assault (victim incapable of appraising); three counts of sexual assault (victim physically helpless); second-degree burglary; and third-degree assault. The Court of Appeals affirmed the judgment in part and vacated it in part, and remanded the case for resentencing and correction of the two mittimuses.

Between October 2002 and January 2004, five women alleged that Garcia committed sexual misconduct against them while they were intoxicated or drugged. The joinder of cases and the consolidation of offenses against separate victims in a single trial were a basis for this appeal.

Garcia contended that the prosecutor committed misconduct twice during closing argument. Although a prosecutor may not argue that a defendant in a sexual assault case unfairly seeks to bolster his case by using his female attorney to blame the female victims for the defendant’s conduct, such argument was not reversible error in this case. Additionally, although the prosecutor implied that the jury could consider Garcia’s propensity for committing sexual misconduct based on the other acts evidence, any error was harmless, because the court properly instructed the jury not to consider the evidence of one charge as propensity evidence for the other charges.

Garcia claimed that the trial court abused its discretion in denying his motion to sever the charges into separate trials under Crim.P. 14. He did not show, however, that he was prejudiced by the trial court’s refusal to sever charges.

Garcia also claimed that insufficient evidence supported the jury’s finding that he was guilty of a sentence enhancer for his conviction of assault against J.M. However, based on J.M.’s testimony, there was sufficient evidence for the jury to find that J.M. did not know or expect that taking the pill defendant gave her would render her unconscious and disoriented.

Garcia contended that the trial court committed plain error in instructing the jury on the charges of sexual assault. The Court determined that the instruction closely tracked the language of the statute and mirrored the pattern jury instruction; therefore, the trial court did not commit plain error.

Garcia further contended that the trial court erred in sentencing him because (1) the mittimus incorrectly reflected that he was convicted of the CRS § 18-3-402(4)(d) sentence enhancer; and (2) his two sexual assault convictions for the victims V.J., B.J.W., and J.M. were based on identical acts and offenses and should have merged. Garcia’s convictions of sexual assault (victim incapable) against V.J. and B.J.W. were vacated because they were not based on distinct acts and therefore merge with his convictions for sexual assault (victim physically helpless), class 3 felonies. In contrast, the record established that Garcia sexually penetrated J.M. on two occasions while she was nearly unconscious. Because the record supported two distinct acts against J.M., the Court affirmed Garcia’s two related convictions of sexual assault.

Summary and full case available here.

The Tenth Circuit Court of Appeals published its opinion in United States v. Diaz on Tuesday, May 8, 2012.

The Tenth Circuit affirmed the district court’s decision. Petitioner was convicted of knowingly leaving the scene of a car accident where she hit and killed a pedestrian. The accident occurred on the Pojoajue Pueblo Indian reservation. She was charged with committing a crime in Indian Country. On appeal, among other issues, Petitioner contended that the federal court lacked jurisdiction over the crime because the government failed to prove that the victim was not an Indian, a jurisdictional requirement.

The Court concluded that the government met its burden of proof. The testimony of the victim’s father provided enough evidence for a jury to conclude the victim was not an Indian for purposes of the statute. The Court also concluded that the district court did not err in its rulings on various other evidentiary and trial issues.

The Tenth Circuit Court of Appeals published its opinion in United States v. Huitron-Guizar on Monday, May 7, 2012.

The Tenth Circuit affirmed the district court’s sentence. Petitioner entered a conditional guilty plea to being an illegal alien in possession of firearms transported or shipped in interstate commerce and was sentenced to 18 months’ imprisonment. Petitioner is to be delivered upon release to an immigration official for deportation. On appeal, he argues that the statute under which he was convicted is unconstitutional and that the district court committed various sentencing errors in applying the Sentencing Guidelines.

The Court disagreed. “[C]ourts must defer to Congress as it lawfully exercises its constitutional power to distinguish between citizens and non-citizens, or between lawful and unlawful aliens, and to ensure safety and order. On this record, § 922(g)(5) withstands [Petitioner]’s Second Amendment and Equal Protection challenges.” Additionally, the district court did not abuse its discretion when it did not apply variances to Petitioner’s sentence.

The Tenth Circuit Court of Appeals published its opinion in United States v. Cope on Tuesday, May 1, 2012.

The Tenth Circuit affirmed the district court’s conviction. Petitioner was convicted of one count of operating a common carrier—a commercial airplane—under the influence of alcohol. He now challenges his conviction based on improper venue, insufficiency of the evidence, and improper reliance on federal regulations.

Petitioner argues that there is no evidence that he was under the influence of alcohol in Colorado and thus venue in the District of Colorado was improper. The Court disagreed, finding that because he was operating a common carrier in interstate commerce, it is immaterial whether he was “under the influence of alcohol” in Colorado. “Venue is proper in any district through which Mr. Cope traveled on the flight, including the District of Colorado.”

Petitioner also argues that the district court put improper weight on the breathalyzer tests, which he contends are invalid, and that there was insufficient evidence that he was “under the influence of alcohol.” The Court found that the district court was entitled to weigh competing testimony about the tests. Additionally, his “high BAC combined with the evidence that [Petitioner] drank a significant amount of alcohol the night before the flight, implicitly admitted that he would fail a breathalyzer test, smelled of alcohol, and had red eyes and a puffy face before the flight, is sufficient evidence for a reasonable fact-finder to find that [Petitioner] was ‘under the influence of alcohol.’”