Sword to the Government's Throat - Criminal Case Law Updates

U.S. Supreme Court - 2-21-12 - Howes v. Fields

2012-02-21T14:07:00.000-07:00

Howes v. Fields Miranda - Prison Inmate – Definition of Custody

Facts: While serving a prison sentence, two deputies interrogated Mr. Fields about an allegation unrelated to his current incarceration. Mr. Fields neither invited nor received any prior notice of the interrogation. To get to the interview room, Mr. Fields walked through the secure prison, through doors, and down a floor. Although not handcuffed or chained, at no point did or could Mr. Fields walk ‘freely’ about the prison. At the beginning of the interrogation, the deputies used the magical language that all cops disingenuously use “you are not under arrest and you are free to go.” However, Mr. Fields could not leave un-escorted. When the interrogation finally ended, five to seven hours later, Mr. Fields waited 20 minutes prior to being let out of the interview room. During the interrogation, the doors closed and opened. Further, Mr. Fields got upset at the allegations, and the deputies cursed and ordered Mr. Fields to sit down at one point. Of course, the deputies extracted a supposed confession. Unfortunately, the 6th Circuit held that the U.S. Supreme Court categorically held that all prison interrogations constitute custody under Miranda, which prompted the U.S. Supreme Court to grant certiorari. Even the dissent conceded, no such prior rule existed for prison interrogations. Once dispensing with the reason they granted cert, the Court then addressed whether the deputies and the prison held Mr. Fields in 'custody' during the interrogation.

Issue: Whether the prison and the deputies held Mr. Fields in custody during the interrogation?

Held: No.

Reasoning: Lay folks hate lawyers and what we do precisely because of reasoning such as this incongruous holding. You can hear someone now, "How can someone in prison not be in 'custody'!? (Along with some choice expletives like, WTF!??). Undeterred by common sense, actual circumstance or real rationale, Justice Alito powered through, and minimized the actual custody which held Mr. Fields during the interrogation. Justice Alito focused on the disingenuous language “you are not under arrest and you are free to go at anytime”, the lack of restraints, and ignored the entire PRISON which held Mr. Fields during the entire interrogation. Hardly in prison voluntarily; not in his home; and not simply driving over to the cop shop for a talk. Instead, a prison held Mr. Fields. Justice Ginsberg, joined by Justices Breyer and Sotomayor, conceded the categorical rule of prison interrogations did not exist, but found under the facts of this case, law enforcement held Mr. Lewis in custody during the interrogation.

>Link to Howes v. Fields here<

Colorado Court of Appeals - 2-16-12 criminal law decision - People v. Sexton

2012-02-18T15:25:00.001-07:00

People v. Sexton Medical Marijuana – Affirmative Defense & Waiver of Doctor/Patient Privilege

Facts: Mr. Sexton operated a legal marijuana growing operation. However, the prosecution charged Mr. Sexton with cultivation for growing plants in excess of the size limit and not keeping complete, legible records for whom he grew the marijuana. Mr. Sexton asserted the Medical Marijuana Amendment as a defense. During trial, the prosecution called Mr. Sexton’s doctor without a waiver from Mr. Sexton. The jury convicted Mr. Sexton possession of more than 8 ounces of marijuana.

Issue: Whether by asserting a defense under the Medical Marijuana Amendment, Mr. Sexton waived his doctor/patient privilege?

Held: Yes.

Reasoning: The Court of Appeals held, “Here, by raising the affirmative defense of medical use, defendant validly waived his privilege under section 13–90–107(1)(d). Thus, the physician's rebuttal testimony concerning his conversations with defendant was a lawful disclosure under section 13–90–107(1)(d), rather than an unlawful disclosure of defendant's confidential medical marijuana patient registry information. Accordingly, we conclude, as did the trial court, that the written waiver requirements of section 18–18–406.3(5) simply did not apply.”

>Link to People v. Sexton here<

Colorado Court of Appeals 2-2-12 People v. Watkins

2012-02-18T13:45:00.001-07:00

People v. Watkins Probation Conditions – Medical Marijuana – Definition of ‘Offense’

Facts: Mr. Watkins smokes marijuana legally under Colorado’s Medical Marijuana, voter initiated and approved, constitutional amendment. The trial court refused to bar Mr. Watkins from smoking dope with a license while on probation. The prosecution, of course, whined, complained, and appealed the allowance.

Issue: Whether medical marijuana constitutes an offense, and thus, disallowed under a probationary sentence?

Held: Yes.

Reasoning: The Court of Appeals simply reasoned that medical marijuana is a criminal offense under federal law. Thus, the trial court abused its discretion by allowing continued marijuana use while under a probationary sentence. What this case is really about - DA’s, many judges, and cops know legalization of marijuana reduces their power. Thus, like petulant children, each constantly tries to undermine the amendment passed by the citizens of Colorado. Whether people dig smoking dope or not, everyone should be concerned when courts, DAs, and police attempt to undermine Democracy. The Medical Marijuana Amendment does not infringe on anyone else’s rights, privileges, or well being - unlike the anti-Gay Amendments presented/passed in Colorado and the U.S., unlike any fictionally titled 'Victim's Rights Amendments' that cops and DAs hoodwinked the populace into passing in the late '80's, and unlike a multitude of other amendments passed or bandied about in the U.S. during the last half-century that limit rather than expand the rights of citizens.

,>Link to People v. Watkins here<

Colorado Court of Appeals 2-2-12 People v. Chirico

2012-02-18T12:25:00.002-07:00

People v. Chirico Self-Defense - Totality of the Circumstances - 'Citizen's Arrest' / Improper Instruction / Harmless Error

Facts: Only in my town, Boulder, Colorado, would a jury convict Mr. Chirico of anything. Super Champ (the complaining witness), attending a kegger, thought he’d be a super hero. After he heard what he assumed was Mr. Chirico damaging the fence in front of the house holding the kegger, Super Champ, ‘somewhat intoxicated’, went out to confront Mr. Chirico. Super Champ called Mr. Chirico and three others with Mr. Chirico ‘babies’, ‘fucking pussies’, and threatened to ‘kick all their asses’ and ‘kill all of them’. Showing the patience of Zen Master, Mr. Chirico did not unleash a reasonable beat down on Mr. Keg-Party Hero, but instead walked away. Not content, Super Champ then got into Mr. Chirico’s face, talked ‘smack’ to Mr. Chirico, grabbed Mr. Chirico’s shirt collar, and pushed him. Finally, Young Kane err Grasshopper err Mr. Chirico exchanged punches with Super Champ; the two wrestled to the ground; and finally, Mr. Chirico put Super Champ in a headlock. While holding the headlock, Mr. Chirico landed a few well-earned punches and broke some bones in Super Champ’s face. Instead of celebrating Mr. Chirico for protecting himself from a bully, Boulder charges him with 2˚ assault. The prosecution ran the argument that because Super Champ was merely attempting to effectuate a citizen’s arrest, Mr. Chirico had no right to employ self-defense. To bolster the prosecution’s theory, the trial court’s instructions included this DA submitted gem, “Because every person is presumed to know the law, it is presumed that the defendant knew the person could employ lawful force against him if the defendant committed a crime in the person's presence.” Curiously, the prosecution never charged Mr. Chirico with criminal mischief for damaging the fence. The jury convicted Mr. Chirico of the lesser 3˚ assault. Mr. Chirico appealed.

Issue: Whether the idiotic and false instruction conjured up by the DA and submitted to the jury deprived Mr. Chirico of a fair trial by denying his right self-defense?

Held: Yes.

Reasoning: The Court of Appeals, timidly, reversed the conviction, and wrote “Thus, although the presumption instruction, in general, did not misstate the law, we conclude that it was error to give it to the jury in this case.” (Italics in the original). The District Court and Court of Appeals got caught up in the DA’s hyperventilating about ‘citizen’s arrest’ and the lawful use of force a citizen may use to effectuate an arrest. However, the Court of Appeals finally cut through the Boulder BS: no one in their right mind would ever believe Super Champ was looking to arrest someone, and anyone, in the shoes of Mr. Chirico would see Super Champ’s actions, demeanor, and words as a bully seeking retaliation. Further, the presumption language placed a false burden upon Mr. Cirico. The prosecution lifted this instruction from People v. Hayward, 55 P.3d 803, 806 (2002). However, as the Court of Appeals noted, Mr. Hayward sought to use self-defense as a trespasser against an occupant employing force under the Make My Day statute. Under Make My Day the occupant may unleash a coup de grace upon a trespasser. Here, the only consideration for the jury is the totality of the circumstances from Mr. Chirico's point of view. Mr. Chirico objected to the idiotic instruction during trial, and the Court of Appeals held that the error could not be harmless beyond a reasonable doubt. Steven Louth not only represented Mr. Chirico on appeal, but also tried the case. Nice work, Mr. Louth.

>Link People v. Chirico here<

Colorado Court of Appeals 2-2-12 People v. Davis

2012-02-16T16:52:00.000-07:00

People v. Davis 35(c)

Facts: Subsequent to a getting his parole revoked, Mr. Davis filed a 35(c) in the district court. Upon receipt of Mr. Davis’s motion, the trial court referred the motion to the Attorney General’s Office, but did not forward the same to the Public Defender. When Mr. Davis learned that the district court referred the matter to the Attorney General, he requested the district court appoint him a lawyer to represent him on the 35(c). The trial court denied Mr. Davis’ request for counsel. Further, after receiving an affidavit from DOC and a response from the Attorney General, the district court denied Mr. Davis’ motion without a hearing.

Issue: Whether the district court erred in referring the 35(c) motion to the prosecution but not the Public Defender?

Held: Yes.

Reasoning: The Court of Appeals reasoned the district court could have denied the 35(c) motion on its face. However, the Court of Appeals held that Rule 35(c) requires the court to send a copy to the Public Defender if the court seeks input from the prosecution.

>Link to People v. Davis here<

Colorado Court of Appeals 2-2-12 People v. Herrera

2012-02-16T16:22:00.001-07:00

People v. Herrera Abuse of Discretion – In Camera Review of Social Service Records / Relevancy of First Communion Photos

Facts: The prosecution charged and a jury convicted Mr. Herrera of various counts of sexual assault on a child. The case involved his two cousins as complaining witnesses. Social services had previously filed a dependency and neglect case on one cousin. The DA in the case sought and obtained the social service records. Upon reviewing the records, the prosecution disclosed the records contain potentially exculpatory evidence, and sought an in camera review of the records. The trial court did not cede to the prosecution’s request. Instead the trial court threw the issue over to the defense to file a motion regarding records - records the defense attorney had never seen. The trial court then denied the defense motion for an in camera review of the records. Subsequently, the prosecution again sought for an in camera review of the records. The defense joined the motion. Again, the trial court denied the motion, and refused to conduct an in camera review of the records.

Issue: Whether the trial court abused its discretion in refusing to conduct an in camera review of the social service records?

Held: Yes.

Reasoning: The Court of Appeals held simply, “Where a prosecutor has requested the court's in camera review of confidential social services records based on a reasonable belief that they contain exculpatory, impeaching, or inculpatory information that would materially assist in preparing the defense,

we conclude that the defendant's burden to request disclosure has been satisfied.” The Court remanded the case to the trial court, and ordered the trial court to conduct an in camera review.

Issue: Whether the trial court erred in admitting photographs of each child at their first communion?

Held: No.

Reasoning: The defense claimed the pictures were neither relevant nor, if relevant, admissible under CRE Rule 403. The Court of Appeals found the photos relevant because each showed the child as the child appeared at the time of the offenses. The Court buried its collective head in the sand or somewhere else by denying the substantial prejudice. The Court wrote, “While the photographs of the children apparently praying may have evoked sympathy in the jury, we are not persuaded, however, that their admission was unfairly prejudicial so as to constitute an abuse of discretion.” Communion. Praying. Little kids at their first communion. What could possibly be more prejudicial and irrelevant in a sexual assault on a child? Horrible holding.

>Link to People v. Herrera here<

Colorado Court of Appeals 2-2-12 People v. Wartena

2012-02-16T15:05:00.002-07:00

People v. Wartena Lesser Non-Includeds – Re-Trial – Double Jeopardy / Burglary – intent to commit a crime therein

Facts: This unfortunate day for Mr. Wartena started when he and a friend stole a truck, a license plate, and items from another car. The thefts got the attention of the eye-witness in the case. The eye-witness called the police and followed the pair as they drove the stolen truck. At some point, Mr. Wartena shot at the eye-witness. Subsequently, the police chased the pair in the stolen truck. During the chase, Mr. Wartena’s co-defendant lost control of the truck, hit an SUV, and killed a passenger in the SUV. Mr. Wartena and the co-defendant escaped on foot, and took refuge in a barn. By the time they had gotten to the barn, Mr. Wartena lost his shoes. The prosecution claimed the boots Mr. Wartena wore when the police arrested him came from the barn.

The prosecution charged a slew of crimes with the most serious being 1˚ extreme indifference murder for the dead person in the SUV, and attempted murder for shooting at the eye-witness. The first trial ended in a hung jury on the most serious charges, but the jury convicted Mr. Wartena on lesser non-included offenses the defense submitted. Upon re-trial, the defense argued for a judgment of acquittal on the burglary because the prosecution failed to prove that Mr. Wartena formed the requisite intent to commit theft prior to entering the barn. The trial court denied the motion. Further, the trial court refused to submit the same lesser non-includeds the defense submitted and the jury convicted on in the first trial. The trial court reasoned that Double Jeopardy barred re-trial on those same charges. The jury hung again after the second trial, and the prosecution eventually dismissed the 1˚ murder charge against Mr. Wartena. However, the jury returned guilty verdicts on other charges, including burglary. Great work by the trial lawyers - Nancy Holton and Rex Hegyi.

Issue: Whether the requisite intent for burglary can be formed after entering the structure?

Held: Yes.

Reasoning: The Court of Appeals reversed centuries of law, and held that the intent to commit the crime therein can be formed after entering the barn. The Court cited the legislative change after the Colorado Supreme Court decided In Cooper v. People, 973 P.2d 1234, 1240 (Colo.1999)(where the Court held the requisite intent must be formed prior to entry of the structure). The Court of Appeals reasoned “the General Assembly amended the second degree burglary statute by adding the ‘after a lawful or unlawful entry’ language ... thus removing the requirement that intent to commit a crime exist at the time of entry.” quoting People v. Larkins, 109 P.3d 1003, 1004 (Colo.App. 2004)(where the Larkins panel held intent may be formed after entry of the structure).

Issue: Whether the trial court may deny lesser non-included instructions on the basis a prior jury previously convicted the accused of the same charges?

Held: Yes.

Reasoning: The Court of Appeals held that if the instructions as a whole encapsulate the defense theory of the case, then the trial court may deny otherwise applicable lesser non-included instructions. On appeal the prosecution argued that the Double Jeopardy Clauses and issue preclusion barred the lesser non-includeds upon retrial. The Court of Appeals sidestepped the, Trujillo, to hold that even though the evidence supported the lesser non-included offense instructions, the trial court did not deny Mr. Wartena due process because the instructions as a whole encompassed his theory of defense.

>Link to People v. Wartena here<

Colorado Supreme Court 2-13-12 criminal law decision - Lucero v. People

2012-02-13T15:37:00.000-07:00

Lucero v. People 1˚ Burglary / Various Counts of Theft vs. Theft in a Series

Facts: A jury convicted Mr. Lucero of three counts of theft and 1˚ burglary. The thefts all took place during a six-month period, and Mr. Lucero never used or intended to use a deadly weapon during the burglary. Instead, the evidence only showed that Mr. Lucero stole some guns during a burglary.

Issue: Whether simply stealing guns amounts to using a deadly weapon during burglary?

Held: No.

Reasoning: Prior to 1981, such a factual scenario of simply stealing guns would get someone convicted of 1˚ burglary, a class 3 felony, rather than a less serious 2˚ burglary, a class 4 felony. However, in 1981 the legislature changed the statute removing any possible 'per se deadly weapon' reading, and thus excluded scenarios of simply stealing guns during a burglary. Here, in Mr. Lucero’s case, the Colorado Supreme Court held the statutory change specifically excluded scenarios where someone simply steals guns but does not use or intends to use the guns. (see identical holding in Montez v. People decided 2-13-12)

Issue: Whether three thefts in a six-month period must be merged into one count of theft under the theft-series statute?

Held: Yes.

Reasoning: In Roberts v. People, 203 P.3d 513 (Colo. 2009), the Supreme Court held that a series of thefts within a six-month period must be brought under a single theft count (statute since overruled the 2009 Roberts decision). Here, the jury found Mr. Lucero committed numerous thefts from different homes and automobiles between August 22, 2000, and September 18, 2000. Thus, the Supreme Court held that Mr. Lucero could only be convicted of one count of theft under the statute in place at the time the crimes occurred. The Court wrote, “On the first certiorari issue, we hold that Lucero cannot be punished for all three alleged thefts. As in Roberts, the statute in effect at the time of Lucero’s acts provided that multiple thefts within a six month period must be merged into a single theft conviction, in this case theft in the aggregate value of $15,000.00 or more.”

>Link to Lucero v. People<

Colorado Supreme Court 2-13-12 criminal law decision - Montez v. People

2012-02-13T14:09:00.000-07:00

Montez v. People 1˚ Burglary / Deadly Weapon – ‘used or intended to be used’

Facts: Phelicia Kossie and I tried Mr. Montez's case together – escape, burglary, and habitual offender counts (4 x the maximum presumptive range). The jury walked Mr. Montez on the escape (ISP Parole case - he cut off his bracelet; cops arrested him in Lakewood; and the jury found that Mr. Montez never left the area of his extended confinement - the Denver Metro Area). However, the jury convicted Mr. Montez of 1˚ degree burglary and the habitual counts. Mr. Montez, according to the evidence, broke into a home and stole a gun case with two guns in the case. Quickly after the break-in, police arrested the hapless Mr. Montez as he walked down the street with the gun case in tow. Mr. Montez never used or threatened to use the guns, and the prosecution never alleged such.

Issue: Whether simply stealing guns amounts to using a deadly weapon during burglary?

Held: No.

Reasoning: Prior to 1981, Colorado Supreme Court precedent held that a firearm qualifies as a ‘per se deadly weapon’. Thus, under this prior precedent, simply stealing guns in a burglary would bump the burglary up from a 2˚ burglary, a class 4 felony, to 1˚ burglary, a class 3 felony. However, in 1981 the legislature changed the statute. The legislature wrote the statute to remove any possible reading of ‘per se deadly weapon’. The statutory change essentially overruled the Colorado Supreme Court’s prior precedent. Under the current statute to qualify as using a deadly weapon during the commission of the burglary, the accused must use or intended to use the firearm – not simply possess or steal. Thus, here in Mr. Montez’s case, the Colorado Supreme Court held the statutory change back in 1981 specifically excluded scenarios where someone simply stole guns during a burglary. Elizabeth Griffin in the Appellate Division of the Colorado Public Defender’s Office did a helluva job, both in the Court of Appeals and the Colorado Supreme Court. Instead of dying in prison, Ms. Griffin gave Mr. Montez a chance of seeing daylight.

>Link to Montez v. People<

United States Supreme Court decision - Reynolds v. United States - Sex Offender Registration

2012-02-02T21:08:00.000-07:00

Reynolds v. United States Federal Sex Offender Registration

Facts: Mr. Reynolds served prison time for a sex offense in Missouri from 2001. After Missouri released him, he moved to Pennsylvania. The Government claimed he did not give notice to Missouri of his change in residence, a violation of federal statute. Subsequent to his conviction, Congress passed its latest version of the sex offender registration statute. Never one to miss a chance at being petty, the government indicted Mr. Reynolds for not telling Missouri where he moved.

Issue: Whether the latest version of the federal sex offender registration statute applied people convicted prior to the statute’s enactment?

Held: No.

Reasoning: The Court reasoned that the Act does not apply to anyone convicted prior to its enactment until the Attorney General so specifies. At the time, the Attorney General had yet to specify the statute applied to folks like Mr. Reynolds.
Link to Reynolds v. United States here

United States Supreme Court - Ryburn v. Huff - 4th Amendment - Unreasonable Searches - Police/Cop Qualified Immunity

2012-02-02T16:45:00.002-07:00

Ryburn v. Huff 4^th Amendment - Unreasonable Searches - Police/Cop Qualified Immunity

Facts: A principle at a high school gets word of some threat. According to students, the threat came from Vincent Huff, a student often bullied at school (of course the police claim this fit the ‘profile’ of a school shooter). The Burbank, CA police arrive to investigate, but Vincent Huff was absent. The police go to Vincent’s home. Vincent’s mother refused to allow the cops entry into their home. The police beg, and again she refuses. The opinion claims the police asked Ms. Huff if there are any guns in the home. In response, the police claimed that Ms. Huff turned and ran into the house. The police, of course, followed Ms. Huff into her home uninvited. Upon entering the home, Vincent Huff’s dad confronted the police and questioned their authority to be in his home. The police claimed they left 10 minutes later. At no time during this investigation did the police seek or possess a warrant authorizing entry or a search the Huff home. The lower courts denied immunity to the police.
Issue: Whether qualified immunity protects the police?

Held: Yes.

Reasoning: No Justice put his or her name to the decision; the Court issued it Per Curium. Nevertheless, the Court goes through a litany of reasons why Ms. Huff raised officer suspicions, but none discloses any criminal conduct (further, no mention that parent involvement also fit the profile of school shooters). For example: Ms. Huff refuses to speak to the police when they call; Ms. Huff declined to discuss anything with the police when they arrived; Ms. Huff refused the police entry into her home. Thus, instead of exhibiting criminal behaviour, Ms. Huff, uniquely and unambiguously exercised her constitutional rights. Unfortunately the Court disagreed, found qualified immunity, and recited the testimony of one of the cops, “Ryburn’s experience as a juvenile bureau sergeant, it was ‘extremely unusual’ for a parent to decline an officer’s request to interview a juvenile inside.” Somehow all this equates to reasonable officer conduct, and thus, immune from any civil suit. The Court essentially bought the line of exigent circumstance - despite it being an exigency of the police officers' own imagination and creation, that is officer safety.
Link to Ryburn v. Huff here

United States Supreme Court - U.S. v. Jones - 4th Amendment - Warrantless Search - GPS Tracker

2012-02-02T13:04:00.000-07:00

United States v. Jones Warrantless Search – GPS Tracker

Facts: The Government obtained a warrant to put a GPS tracker on a suspected drug trafficker’s car. The trial court granted the motion, but directed the Government to put the tracker on the car within 10 days of the order. The Government affixed the GPS tracker to Mr. Jones' car on the 11^th day – outside the time limit for the warrant.

Issue: Whether tracking people with a GPS tracker amounts to a search or seizure under the Fourth Amendment?

Held: Yes.

Reasoning: Justice Scalia wrote the majority opinion. Although no Justice dissented, the Court produced three opinions, the majority and two concurring opinions.

The Government hinged its case on Katz v. United States, 389 U.S. 347 (1967), where, in concurrence, Justice Harlan formulated the definition of a search, “My understanding of the rule that has emerged from prior decisions is that there is a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as ‘reasonable.’” (citations omitted) Thus, the Government, here, claimed because all of the vehicle's movements could be viewed in the open by anyone, Mr. Jones had no reasonable expectation of privacy.

Justice Scalia reached back past Katz, to when Supreme Court jurisprudence only defined searches to be some trespass onto property. However, Justice Scalia reasoned, “As Justice Brennan explained in his concurrence in Knotts, Katz did not erode the principle ‘that, when the Government does engage in physical intrusion of a constitutionally protected area in order to obtain information, that intrusion may constitute a violation of the Fourth Amendment.’ We have embodied that preservation of past rights in our very definition of ‘reasonable expectation of privacy’ which we have said to be an expectation ‘that has a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.’”

Justice Alito quarreled with the Court’s ‘reviving’ of old trespass tort law to decide the case. Justice Alito, with Justices, Kagan, Ginsberg, and Breyer joining, wrote a concurring opinion that would have simply decided the case in favor of Mr. Jones under the reasoning of Katz.

Nevertheless, every Justice agreed that tracking people in the United States without a warrant or in excess of a warrant (as was done here) amounts to unconstitutional conduct by the Government.
Link to United States v. Jones here

Colorado Court of Appeals - Criminal Law Decision 1-19-12

2012-01-30T22:18:00.004-07:00

People v. Stovall Petty Offense Escape as Predicate for Felony Murder

Facts: Essentially, bad facts make idiotic bad law. Here, Mr. Joel Stovall, a man with no prior criminal history, shot his neighbor’s dog down in redneck, cop/prison guard infested Fremont County. A deputy arrested him. However, while the deputy held him in handcuffs, Mr. Stovall’s brother, who also had no prior criminal history but a traffic case, arrived on scene with a handcuff key and two pistols. The deputy made a fatal error, and did not search the brother, Michael Stovall, prior to placing him in handcuffs. As the deputy drove the two brothers, twins, away to the jail, Michael Stovall unhinged a handcuff and shot the deputy. The deputy died. The car crashed, and the brothers borrowed a truck at gunpoint, negotiating with the man by shooting him. The brothers then fled police in the truck for about 24 hours. The police all whined that the brothers tried to kill them as the brothers attempted to avoid arrest. The prosecution threatened to go death because the deputy died. Mr. Stovall pled to all charges as a result of the threat. The Court sentenced him consecutively on each offense including a sentence of life without the possibility of parole. Mr. Stovall filed a 35(c), and the trial court denied the motion. Mr. Stovall appealed.
Issue: Whether the petty offense of escape can form the predicate crime for felony murder?
Held: Yes.
Reasoning: Essentially, the Court of Appeals looked at the cop who died, and found some way, some how, on some level of reality, that a petty offense can be the predicate crime for felony murder. Why? Because the statute lists the word 'escape' as one possible predicate for felony murder. No other reasoning necessary to explain how a petty offense equates to a felony.
link to People v. Stovall here.

Colorado Court of Appeals - Criminal Law Decision 1-5-12

2012-01-30T22:18:00.003-07:00

People v. Morales Burglary – Definition of a Dwelling

Facts: The prosecution accused Mr. Morales of stealing items from a house under renovation. No one lived in the house at the time of the burglary, and seemingly, the house was inhabitable. A jury convicted Mr. Morales of burglary of a dwelling, a class 3 felony.
Issue: Whether an inhabitable, vacant house under renovation qualified as a dwelling for burglary?
Held: Yes
Reasoning: The Court concedes these facts, “The record shows that Cheek purchased the Stuart home from a woman who had lived there, with her family and on her own, for about thirty-five years. Cheek testified that he planned on renovating the home and selling it for a profit. Specifically, Cheek planned to replace the roof, windows, and siding, remodel the kitchen and bathrooms, and refinish the hardwood floors. At the time of the burglary, Cheek and his business partner were in the process of demolishing the interior of the Stuart home and refinishing the hardwood floors. They had torn out the kitchen cabinets, moved the kitchen appliances, ripped up the carpeting, demolished a bathroom, taken out a fireplace, and removed ceiling tile, baseboards, trim, and several doors, among other things.” Thus, the house was inhabitable.

Nevertheless, the Court reasoned, if the structure could be construed now or at any time in the future, as a dwelling, then that structure fit the definition of dwelling under the burglary statute.

Link to People v. Morales here

Colorado Court of Appeals - Criminal Law Decision 1-5-12

2012-01-23T14:53:00.000-07:00

People v. Davis Competency to Stand Trial vs. Competency to Waive Counsel / Right to Withdraw Guilty Plea

Facts: A Jury convicted Mr. Davis of distribution in one case. In two other cases, he worked out a joint deal where he pled to drug related offenses in each case. The prosecution then dismissed habitual criminal charges against Mr. Davis. Prior to trial, Mr. Davis moved to represent himself. No one disputed that Mr. Davis suffered some from serious mental illness. During the pendency of his cases, the Court subjected Mr. Davis to three competency evaluations, but Mr. Davis refused to participate in each. Nevertheless, the trial court concluded that Mr. Davis was competent to stand trial. However, the trial court determined that Mr. Davis was not competent to represent himself, and thus, denied his motion to dismiss counsel and proceed pro se.

Issue: Whether the trial court erred in denying Mr. Davis’ request to represent himself?

Held: No.

Reasoning: In Indiana v. Edwards, 554 U.S. 164 (2008), the U.S. Supreme Court held that Indiana did not err when it denied Mr. Edwards’ request to represent himself. The trial court in Indiana found Mr. Edwards competent to stand trial, but also found his mental illness affected him to a degree that he could not competently represent himself at trial. Because the trial court that heard Mr. Davis’ request did not analyze the issue under Edwards, the Court of Appeals remanded this issue back to the trial court.

Issue: Whether the trial court erred when it declined to address Mr. Davis’ desire to withdraw his two guilty pleas?

Held: Yes.

Reasoning: Prior to sentencing, Mr. Davis sought to withdraw his guilty pleas in his other two drug cases. His defense lawyer declined to address the issue, and as a result, the trial court also refused to address the issue. The Court of Appeals held that seeking to withdraw a guilty plea is personal to the accused, and thus, a lawyer cannot waive that issue. The Court of Appeals cited People v. Bergerud, 223 P.3d 686 (2010) in support of its holding, and remanded the issue back to the trial court.

Issue: Whether the state violated Mr. Davis’ right under the Double Jeopardy Clauses by convicting him of both possession and distribution?

Held: No

Reasoning: First, there seems to be a trend among the appellate divisions in Colorado to avoid any ‘unpreserved’ sentencing issues. Thus, like any trial error, if defense counsel does not raise the sentencing issue to the trial court, the appellate divisions seem eager to apply the deferential standard of ‘plain error’ on review. Here, the Court of Appeals claimed that substitute counsel did not raise the issue of Double Jeopardy at the time of sentencing, and thus, the standard of review the Court held would be plain error. In deciding the issue, the Court found the undercover officer’s testimony ambiguous. Thus, the Court concluded that the jury could infer that Mr. Davis only handed the officer a portion of the total amount of crack Mr. Davis possessed. Thus, the Court held, the two convictions Mr. Davis suffered did not violate Double Jeopardy.

Link to People v. Davis here

Colorado Court of Appeals - Criminal Law Decision 12-22-11

2012-01-23T12:37:00.001-07:00

People v. Marsh Knowing Possession of Child Pornography

Facts: A jury convicted Mr. Marsh of a slew of charges relating to sexual assault on a child and possession of child pornography. A prosecution expert opined that the ‘AOL cache’ contained 17 images of child porn. However, the defense claimed that only a person with specialized knowledge could “know” what images the cache contained. If the Court of Appeals found the evidence insufficient for the 17 images, then the class 4-felony possession of child pornography would be vacated.

Issue: Whether the cache of a computer provides sufficient evidence that the person knowingly possessed child porn?

Held: Yes

Reasoning: The Court found the cache issue was one of first impression in Colorado. However, the Court simply went along with the prosecution’s expert. The prosecution expert opined that if the images remained in the cache of the computer, then someone previously opened and viewed those images on the computer. Further, the Court cited the prosecution expert’s testimony that 3 of the images in the cache matched the images on the hard drive that were previously deleted. Thus, Court of Appeals found the jury permissibly inferred that the someone who possessed the child pornography was Mr. Marsh. Lastly, the Court addressed a multitude of other issues, but found no error, cumulative or otherwise.
Link to People v. Marsh here

Colorado Supreme Court 12-12-11 criminal law decision People v. Coates

2011-12-12T11:13:00.000-07:00

People v. Coates 4th Amendment: Automobile Searches - Search Incident to Arrest vs. Probable Cause

Facts: The police stopped the car in which Ms. Coates rode in the backseat. The police patted down the driver, claimed the 16 year-old 'consented' to the pat down (reason for the stop was a minor traffic offense), and supposedly found one pill of Xanax in the 16 year-old's pocket. After the discovery, the police ordered everyone out of the car, interrogated Ms. Coates, and searched both the passenger compartment and the trunk of the car. In the trunk, the police claimed to find a bottle of pills. Ms. Coates admitted to owning the car, but denied knowledge of the pills in the trunk. The defense moved to suppress all the evidence found in the trunk, and the trial court granted the motion. The trial court cited two bases for suppression. The trial court stated that the police possessed neither reasonable suspicion to search the trunk (search incident) nor probable cause to search the trunk for contraband. The prosecution appealed the order.

Issue: Whether the police, who found a pill of Xanax in the pocket of the driver, possessed probable cause to search the trunk?

Held: No.

Reasoning: As astonishing as the holding, Justice Coates wrote the decision with nary a dissenter. First, the Court put to rest any fantasies cops and prosecutors have about using search incident to justify a general search of the entire car. The Court flat out stated in the beginning of its decision, "Because the evidence for which suppression was sought was not seized from the passenger compartment of the defendant’s vehicle, the search-incident-to-arrest exception could not justify its seizure under any circumstances." Arizona v. Gant, 556 U.S. 332, ---,129 S.Ct. 1710, 1719 (2009).

The Court then held that ticketing the driver for driving without a license and finding a Xanax pill in the driver's pocket did not amount to probable cause to search the trunk of the car.
Link to People v. Coates here

Colorado Court of Appeals - 12-8-11 criminal decision - People v. Poage

2011-12-09T11:03:00.002-07:00

People v. Poage Failing to De-Register as a Sex Offender

Facts: Mr. Poage got evicted from his home where he previously registered. Because he was homeless, he did not have any address to re-register. So, he never registered any address but his initial address. An Adams County Deputy with not enough to do, checks on the address, finds no one living there (because of the eviction), and the prosecution subsequently charged failing to register and failing to de-register. At a hearing where the defense asked for a bill of particulars, the prosecution opted to only proceed on failing to de-register. However, Mr. Poage testified that he never moved out of Adams County. Further, the Court of Appeals found that the prosecution never presented any evidence that Mr. Poage moved out of Adams County (Appeals panel - Judges Roman, Taubman, and Booras with Judge Roman writing the opinion). Nevertheless, the trial court denied the motion for judgment of acquittal, and the jury convicted Mr. Poage of failing to de-register. The Court of Appeals vacated the conviction.

Issue: Whether the prosecution must show, under the de-registration section, that a person moved out of the jurisdiction?

Held: Yes.

Reasoning: The Court of Appeals read the de-registration, section C.R.S. 18-3-412.5 (1)(i) - “Failure to complete a cancellation of registration form and file the form with the local law enforcement agency of the jurisdiction in which the person will no longer reside,” - as any normal red blooded human being would – that jurisdiction does not mean house, home, or apartment. Jurisdiction in subsection (i) means out of the jurisdiction. Thus, the Court of Appeals held that only when a person moves out of the jurisdiction, does the statute then require the person to de-register. Therefore, the Court of Appeals vacated Mr. Poage’s conviction, and case dismissed.

Adam Mueller represented Mr. Poage on appeal and Emily Lieberman represented the man in trial. Both did a helluva job.

Colorado Court of Appeals - 11-23-11 criminal decision - People v. Mosely

2011-11-25T12:47:00.003-07:00

People v. Mosley Speedy Trial

Facts: A jury convicted Mr. Mosely of multiple counts of sexual assault on a child. A panel of the Court of Appeals reversed the conviction, and sent the case back to the trial court for a re-trial. When the trial court re-set the case for trial, the trail court set it beyond the six-month deadline from the mandate required by C.R.S. § 18-1-405(2). The trial court received the mandate on September 19, 2007, and thus, according to subsection 2, the trial must commence by March 19, 2007. However, the trial court continued the case for appearance of counsel to October 22 and 25, 2007. On October 29, 2077, Mr. Mosley waived his right to speedy trial. Based upon the waiver, the trial court determined that speedy ended on April 29, 2008, and re-set the trial on April 8, 2008. On March 31, 2008, the prosecution moved to continue the trial. Over the objection of the defense, the trial court granted the continuance, and moved the re-trial to June 17, 2008. The Court of Appeals noted over and over that defense counsel acquiesced to the application of the time exclusions found in C.R.S. § 18-1-405(6), even though the plain language of C.R.S. § 18-1-405(2) does not allow any exclusions of time from the six-month speedy trial period. Subsequent to the mistrial, defense counsel argued the explicit language of C.R.S. § 18-1-405(2) mandates dismissal – the first time defense counsel argued subsection 2 according to the Court of Appeals. The trial court agreed, and dismissed the case.

Issue: Whether the plain language of C.R.S. § 18-1-405(2) - “If trial results in conviction which is reversed on appeal, any new trial must be commenced within six months after the date of the receipt by the trial court of the mandate from the appellate court.” - is ambiguous?

Held: Inexplicitly, yes.

Reasoning: The Court found the language to be ambiguous because C.R.S. § 18-1-405(2) left the accused without a remedy if the trial court exceeded the six-month period required by statute. Thus, the Court claimed it needed to give meaning to the subsection, and in doing so, read all the exclusions of time found in C.R.S. § 18-1-405(6) into C.R.S. § 18-1-405(2). Thus, the Court of Appeals reversed the trial court's ruling, and reinstated the charges against Mr. Mosely. The Court completely avoided the jurisdiction issue – that the legislature did not use ambiguous language because the trial court loses jurisdiction if it does not hold the re-trial within six months. Instead, the Court re-wrote C.R.S. § 18-1-405(2) to be complicated and weaselly, and hence, identical to C.R.S. § 18-1-405(1).

C.R.S. § 18-1-405(1) reads, “Except as otherwise provided in this section, if a defendant is not brought to trial on the issues raised by the complaint, information, or indictment within six months from the date of the entry of a plea of not guilty, he shall be discharged from custody if he has not been admitted to bail, and, whether in custody or on bail, the pending charges shall be dismissed, and the defendant shall not again be indicted, informed against, or committed for the same offense, or for another offense based upon the same act or series of acts arising out of the same criminal episode.” Thus, C.R.S. § 18-1-405(1) explicitly contains all the exclusions of time in C.R.S. § 18-1-405(6), which reads:

In computing the time within which a defendant shall be brought to trial as provided in subsection (1) of this

section, the following periods of time shall be excluded:

(a) Any period during which the defendant is incompetent to stand trial, or is unable to appear by reason of illness or physical disability, or is under observation or examination at any time after the issue of the defendant's mental condition, insanity, incompetency, or impaired mental condition is raised;

(b) The period of delay caused by an interlocutory appeal whether commenced by the defendant or by the prosecution;

(c) A reasonable period of delay when the defendant is joined for trial with a codefendant as to whom the time for trial has not run and there is good cause for not granting a severance;

(d) The period of delay resulting from the voluntary absence or unavailability of the defendant; however, a defendant shall be considered unavailable whenever his whereabouts are known but his presence for trial cannot be obtained, or he resists being returned to the state for trial;

(e) The period of delay caused by any mistrial, not to exceed three months for each mistrial;

(f) The period of any delay caused at the instance of the defendant;

(g) The period of delay not exceeding six months resulting from a continuance granted at the request of the prosecuting attorney, without the consent of the defendant, if:

(I) The continuance is granted because of the unavailability of evidence material to the state's case, when the prosecuting attorney has exercised due diligence to obtain such evidence and there are reasonable grounds to believe that this evidence will be available at the later date; or

(II) The continuance is granted to allow the prosecuting attorney additional time in felony cases to prepare the state's case and additional time is justified because of exceptional circumstances of the case and the court enters specific findings with respect to the justification;

(h) The period of delay between the new date set for trial following the expiration of the time periods excluded by paragraphs (a), (b), (c), (d), and (f) of this subsection (6), not to exceed three months;

(i) The period of delay between the filing of a motion pursuant to section 18-1-202(11) and any decision by the court regarding such motion, and if such decision by the court transfers the case to another county, the period of delay until the first appearance of all the parties in a court of appropriate jurisdiction in the county to which the case has been transferred, and in such event the provisions of subsection (7) of this section shall apply.

Colorado Court of Appeals 10-27-11- criminal decision - People v. Warrick

2011-11-23T17:15:00.001-07:00

People v. Warrick Police Booking Reports and Mittimus - Hearsay, Authentication and Confrontation Clause / Cops as Experts

Facts: Real simple: the trial court admitted the mittimus and booking reports in a possession of a weapon by a previous offender, and the cop testified to an arguable opinion.

Issue: Whether the trial court abused its discretion when it found that the public records to be sufficiently authenticated?

Held: No.

Reasoning: CRE Rule 901 governs authentication. As the Court of Appeals stated, “Whether a proper foundation for authenticity has been established is a

matter within the sound discretion of the trial court, whose decision will not be disturbed absent an abuse of discretion. Accordingly, a trial court should allow physical evidence to be presented to the jury if a reasonable jury could decide the evidence is what its proponent claims it to be.” People v. Crespi, 155 P.3d 570, 573-74 (Colo.App.2006). First, the Court of Appeals, with conclusory reasoning, held that the booking reports qualify as public records under CRE Rule 902. Moreover, according to the Court of Appeals, to admit public records the proponent need only provide authentication. The certification from the records custodian on the booking reports provided all the authentication the Court of Appeals needed. Under CRE Rule 104(a), the trial court itself is not bound by the rules of evidence to determine authenticity. Thus, the trial court may rely on the certification on the documents despite the fact that the certification is clearly hearsay.

Issue: Whether the trial court abused its discretion when it admitted the mittimus of a prior conviction to be admitted despite the lack of attestation by the signer?

Held: No.

Reasoning: Under CRE Rule 902(1), if the mittimus bears the seal and a signature of attestation, the record qualifies as self-authenticating. Here, the mittimus bore the seal, signature, and certification according to the Court of Appeals. Thus, the trial court did not abuse its discretion in admitting the mittimus.

Issue: Whether the trial court abused its discretion in admitting booking reports and mittimus under CRE Rule 803(8)?

Held: No.

Reasoning: Under CRE Rule 803(8)(A), the mittimus and booking records a) raise no trustworthiness issues and b) each sets forth activities of the District Court and the Sheriff’s Department respectively. Thus, under Rule 803(8)(A), the trial court did not abuse its discretion. Further, Rule 803(8)(B), specifically prohibits admission of police records. However, the Court of Appeals followed the federal courts, and reasoned the booking records to be admissible because police routinely prepare the ‘non-adversarial’ booking reports.

Issue: Whether admission of the booking reports and mitt violated the Confrontation Clause?

Held: No.

Reasoning: Simply put, the Court of Appeals held that the mittimus and booking reports did not amount to ‘testimonial’ evidence under Crawford v. Washington, 541 U.S. 36 (2004).

Issue: Whether the cop testified as an expert?

Held: No.

Reasoning: The Court assumed what the cop offered qualified as an opinion, but then found that opinion admissible under CRE Rule 701 – Lay Witness Opinion.

Colorado Court of Appeals 10-27-11 - criminal decision - People v. King

2011-11-23T12:43:00.004-07:00

People v. King Strip Searches and Search Warrants / No Knock Execution of a Warrant

Facts: Police claim Mr. King dealt drugs, and the judge signed a warrant. SWAT Team douche bags broke into Mr. King’s room unannounced to execute a warrant. The warrant did not expressly authorize a no-knock execution. Nevertheless, the subsequent search turned up no evidence of drug dealing. The police found only paraphernalia – two pipes, a box of baggies, and a copper scrubber. As part of the warrant, the SWAT Team conducted a strip search of Mr. King. Unfortunately for Mr. King, he had a baggie in his rectum that contained 20 smaller baggies of cocaine.

Issue: Whether exigent circumstances existed to justify the no-knock execution of the warrant?

Held: Yes.

Reasoning: The Court of Appeals reasoned exigent circumstances existed because Mr. King dealt drugs before, drugs could be easily destroyed, and the motel room had a bathroom in which drugs could be easily disposed.

Issue: Whether ordering Mr. King, who stated was not wearing any underwear, to drop his trousers amounted to a strip search?

Held: Yes.

Reasoning: The Court of Appeals looked to a Colorado statute to determine whether the police subjected Mr. King to a strip search. The Court stated, “Colorado criminal statutes define a strip search as 'having an arrested person remove or arrange some or all of his or her clothing so as to permit a visual inspection of the genitals, buttocks, anus, or female breasts of such person.' " C.R.S. § 16-3-405(2). The Court of Appeals reasoned the search became a strip search when the police forced Mr. King to drop his trousers after he informed them he was not wearing underwear.

Issue: Whether the strip search of Mr. King’s person went beyond the scope of the search warrant?

Held: Yes.

Reasoning: The Court of Appeals found this issue, whether search warrants include strip searches, to be one of first impression in Colorado. Nevertheless, the Court of Appeals reasoned, “A search of a person may range from a pat-down to a full search of the person to a more intrusive strip search. Strip searches are different in nature, quality, and intrusiveness from full searches of a person's body. Safford Unified School Dist. No. 1 v. Redding, ––– U.S. ––––, ––––, 129 S.Ct. 2633, 2641, 174 L.Ed.2d 354 (2009).” Thus, the Court of Appeals held that a search warrant does NOT include a strip search. Further, according to the Court's holding, in order to justify a strip search, the police must possess “specific facts to support a reasonable suspicion that a particular person has secreted contraband beneath his or her clothes or in a body cavity.” Quoting People v. Mothersell, 14 N.Y.3d 358, 900 N.Y.S.2d 715, 926 N.E.2d 1219, 1226 (N.Y.2010).

Colorado Court of Appeals 10-13-11 Criminal Law Decision - People v. Ortega

2011-10-31T20:46:00.000-06:00

People v. Ortega 35(c) / F3 Child Abuse / Extraordinary Risk Crimes / Crimes of Violence

Facts: Mr. Ortega pled to a class 3 felony child abuse, which normally carries a sentence of 10-32 years in prison with 5 years of parole. However, Mr. Ortega entered into a plea agreement with a stipulated range of 15 to 20 years in prison. The trial court sentenced Mr. Ortega to 19 years. Subsequently, Mr. Ortega filed a 35(c) claiming the trial court illegally sentenced him. The trial court summarily denied his motion, and Mr. Ortega filed a pro se appeal.

Issue: Whether the trial court imposed an illegal sentence upon Mr. Ortega?

Held: No.

Reasoning: With Judge Taubman as author and Judges Roman and Booras concurring, the Court of Appeals reasoned that because Mr. Ortega pled to an extraordinary risk crime that required a crime of violence sentencing range of 10-32 years, the trial court did not impose an illegal sentence. Further, the sentence of 19 years imposed by the trial court fell within the range agreed upon by Mr. Ortega. Finally, Mr. Ortega signed and initialed the plea agreement evincing that he voluntarily and knowing entered the plea.

Colorado Court of Appeals 10-13-11 Criminal Law Decision - People v. Berry

2011-10-31T20:14:00.001-06:00

People v. Berry ‘Knowingly’ / Sufficiency of the Evidence / Retaliation Against a Judge

Facts: In the throes of alcohol infused depression and misery, Mr. Berry seeks out a friend to have him drive him to the emergency room. A mental health worker at the emergency room counsels Mr. Berry. The mental health worker did not tell Berry she would report threats to any targets. Nevertheless, the mental health worker told Mr. Berry’s ex, her lawyer, and his divorce case judge that Mr. Berry made threats to them. The mental health worker then committed Mr. Berry on an emergency basis. The police arrested Mr. Berry for allegedly retaliating against the judge. Further, the prosecution charged, the trial court allowed, and a jury convicted Mr. Berry of retaliating against a judge. Mr. Berry argued that he made idle threats and did not know the mental health worker would report any of the threats, including to the judge.

Issue: Whether the prosecution presented sufficient evidence that Mr. Berry retaliated against the judge?

Held: No.

Reasoning: The statute §18-8-615, reads:

“An individual commits retaliation against a judge by means of a credible threat ... if the individual knowingly makes the credible threat:

(I) Directly to the judge; or

(II) To another person:

(A) If the individual intended that the communication would be relayed to the judge; or

(B) If the other person is required by statute or ethical rule to report the communication to the judge.” (Quoting the opinion).

With Judge Criswell writing the decision and Judges Furman and Richman concurring, the Court of Appeals reasoned because Mr. Berry did not know that the mental health worker had a mandatory duty to snitch him off, he did not knowingly retaliate against the judge.

Colorado Court of Appeals 10-13-11 Criminal Law Decision - People v. Grassi

2011-10-31T14:23:00.003-06:00

People v. Grassi Probable Cause & Blood Draws / Fellow Officer Rule

Facts: Previously, a jury convicted Mr. Grassi Vehicular Homicide, manslaughter, DUI and DUI – excessive alcohol. He appealed, and the Court of Appeals remanded the case to determine whether the police had probable cause to draw blood from the unconscious Mr. Grassi. On remand, the trial court held a hearing, and determined that the state patrol did possess enough facts to establish probable cause for the blood draw from Mr. Grassi.

Issue: Whether the state patrol had probable cause to draw blood samples from Mr. Grassi?

Held: Yes.

Reasoning: The Court of Appeals, in an opinion authored by Judge Terry, distinguished this case from People v. Reynolds, 895 P.2d 1059 (Colo.1995), and People v. Roybal, 655 P.2d 410 (Colo.1982). Here, the Court claimed more existed than merely an accident and an odor of alcohol. The Court pointed to the following: no yaw marks existed indicating Mr. Grassi did not apply the brakes; the car went some 200 ft. off of the roadway; the car had no damage or problem that caused the accident; the road was clear, dry, and nothing existed in the roadway to cause the accident; troopers opined that Mr. Grassi's car traveled along the “fog line” (white line) which, they continued, was indicative of someone driving under the influence; Mr. Grassi “still had a strong odor of alcohol three hours after the accident.”

Issue: Whether the “fellow officer rule” applies when the officer taking the blood draw did not speak with the officer who may have information to establish probable cause?

Held: Sure.

Reasoning: If someone, at some time, who is employed by the law enforcement agency possesses sufficient information to establish probable cause, that knowledge, the Court of Appeals theory goes, may be imputed throughout the entire law enforcement agency. Further, now, according to the Court, you can add all the bits of information from each officer to establish, as a whole, the agency possessed probable cause. The Court quoted People v. Arias, 159 P.3d 134 (Colo. 2007), “The fellow officer rule provides that a law enforcement officer who does not personally possess a sufficient basis to make an arrest nevertheless may do so if (1) he acts at the direction or as a result of communications with another officer, and (2) the police as a whole possess a sufficient basis to make the arrest.” Arias, 159 P.3d at 139. Hence, the officer who ordered the draw of Mr. Grassi’s blood had no clue what the accident reconstructionist would find at the time he ordered a third officer to go to the hospital to draw Mr. Grassi’s blood. Nevertheless, taken as a whole, according to the Court, the state patrol possessed probable cause to order a blood draw.

Colorado Court of Appeals 10-13-11 Criminal Law Decision - People v. Harmon

2011-10-30T22:40:00.001-06:00

People v. Harmon Juror Impartiality

Facts: The prosecution charged and a jury convicted Mr. Harmon of F3 reckless/knowing child abuse resulting in serious bodily injury. During opening statement, the defense hinted that at most negligence occurred, and in closing argued for acquittal of both the charged crime and the lesser negligent child abuse. During the first day of trial, a juror sent out a note which read, “I wish to ask why it is necessary to spend all this time calling witnesses and going round & round on points and facts that both sides agreed to in their opening remarks. It would seem that the disagreement is only over what level of guilt is indicated. Can not [sic] the rest be stipulated? Can we not focus on the distinctions of motive and actions?” Instead of dismissing the juror or declaring a mistrial, as the defense requested, the trial court did nothing.

Issue: Was the trial court under some duty to correct the misapprehension of the juror regarding the guilt of Mr. Harmon prior to jury deliberations?

Held: Yes.

Reasoning: The Court of Appeals held that when the trial court did absolutely nothing to correct the juror, the trial court deprived Mr. Harmon of his right to due process and a fair trial. Thus, the Court of Appeals reversed Mr. Harmon’s conviction, and remanded the case for re-trial. The Court of Appeals gave a non-exhaustive list of actions the trial court might have taken:

Without intending to provide an exhaustive list

as to what corrective action the trial court might

have taken here, we note that the court might have

(1) spoken to the jurors, (2) advised them that it

had received a note suggesting possible confusion

regarding Harmon's opening statement, (3) reminded

them that Harmon had asserted that he was not

guilty, that he must be presumed innocent, and that

the burden of proof remained on the prosecution,

and (4) inquired as to whether any of them would

have difficulty affording Harmon, until the end of

trial, the presumption of innocence and requiring

the prosecution to prove Harmon's guilt beyond a

reasonable doubt. The court also could have reminded

the jurors that the opening statements of counsel are

not evidence. See CJI–Crim. 1:03 (1983). And the

court could have reiterated its direction to the jury that

it must consider all of the evidence produced during

the trial and determine the facts based on that evidence.

Alternatively, the court could have identified and

dismissed the juror who sent the note and substituted

one of the two alternate jurors. In the circumstances

presented here, we conclude that the failure to take any

such corrective action was error.