Sword to the Government's Throat

Rodriguez v. United States - Terry Stops/Stone Stops – 4th Amendment – Reasonable Supicion – Inarticulable Hunches – Detention - Arrest

2015-04-21T22:30:00.002-06:00

Issue: Whether holding Mr. Rodriguez for the dog sniff of his car, after the initial reason for the stop ceased, violated his right to be free from unreasonable seizures under the 4th Amendment?

Held: Yes. The U.S. Supreme Court refused to weaken what the Court previously held in its Terry and Stone line of cases. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868 (1968)(opinion here: http://goo.gl/pFtBZR; Stone v. People, 174 Colo. 504, 485 P.2d 495 (1971)(opinion here: http://goo.gl/XjbMmQ) – once the claimed initial reason for the stop ceased, the police must let the person go. Justice Ginsberg, Justices Kagan, Sotomayor, Breyer, Scalia, and Chief Justice Roberts.

Facts: A police officer in Nebraska saw Mr. Rodriguez veer onto the shoulder and then back into the roadway. The officer then conducted a stop, and asked for Mr. Rodriguez’s license, insurance and registration. The officer then did a warrant check on Mr. Rodriguez. Subsequently, the officer sought and received the passenger’s information, and the officer did a warrants check on the passenger. Thereafter the officer gave Mr. Rodriguez a warning, and the officer testified “I got all the reasons for the stop out of the way, . . . took care of all the business.” Nevertheless, the officer held Mr. Rodriguez in order to conduct a dog sniff of his vehicle.

Reasoning: The Court found the officer possessed neither reasonable suspicion nor probable cause to continue detaining Mr. Rodriguez for the dog sniff. The Court held any further detention violated Mr. Rodriguez’s rights. Prior to this holding, the Eight Circuit along with other Circuits, States, and municipalities inexplicably sought to sparse out whether an intrusion or detention was de minimus, and of course, the Magistrate, the District Court, and the Eighth Circuit all decided that an 8-minute hold of Mr. Rodriguez, not based upon reasonable suspicion, did not violate Mr. Rodriguez’s rights under the 4^th Amendment. Thankfully, the U.S. Supreme Court held otherwise.

Rodriguez v. United States slip opinion here: http://goo.gl/EUKQ7N

US Supreme Court - June 17, 2013

2013-06-19T13:08:00.003-06:00

Arizona v. Inter Tribal Council of Arizona, INC. - Immigration - Proof of Citizenship - Voting- Supremacy Clause - Elections Clause - Preemption.

Facts: To fight the phantom problem of ‘voter fraud’, Arizona voters passed a law requiring that anyone who votes must prove they are citizens of the United States with identification, passport etc. In 1993, Congress passed and the President signed a bill into law called the ‘Motor Voter Law’. Under the law, States must “accept and use” the Election Assistance Commission’s ‘Federal Form’ (EAC). Congress passed the Motor Voter Law to simplify the registration procedure in each state. The Federal Form that the EAC devised did not require a person to prove citizenship. Instead, the Federal Form required anyone registering to vote to attest and sign, under the penalty of perjury, that she or he is a United States citizen. Arizona’s law went one step further by requiring actual proof of citizenship with identification, birth certificate, passport, etc.. The 9th Circuit invalidated the proof of citizenship requirement. On appeal, the U.S. Supreme Court grappled with the Arizona law, the Motor Voter Law, the Federal Form, the Elections Clause of the Constitution, and the Supremacy Clause of the Constitution.

Issue: Whether the Motor Voter Law and EAC’s Federal Form preempted Arizona’s law requiring proof of citizenship?

Held: Yes.

Reasoning: Stunning as it is, Justice Scalia, who loves the anti-American fictional theory of states’ rights and who hates real or imagined Federal usurpation of States’ powers, authored the majority opinion in which Justices Ginsberg, Breyer, Kagan, and Sotomayor joined.

The Court went to great lengths defining what “accept and use” meant in the Motor Voter Law with respect to EAC's Federal Form. Did Congress mean this language to be an all-inclusive order to accept as proof of that the person is indeed eligible to vote, i.e. a citizen? Or did the language mean, as Arizona argued, the Federal Form makes up but one element of the registration process? And thus, leaving Arizona and other states to add to the qualifications of prospective voters? Justice Alito, joined by Chief Justice Roberts and Justices Thomas and Kennedy, agreed with Arizona, and found that the Federal Form “simply should be used as a meaningful part of the registration process.”

The Court held to the contrary. The Court held that the completed Federal Form qualified anyone to vote. Further, the Court held that the Elections Clause allowed Congress to preempt Arizona’s law requiring proof of citizenship. The Court wrote, “There is good reason for treating Elections Clause legislation differently: The assumption that Congress is reluctant to pre-empt does not hold when Congress acts under that constitutional provision, which empowers Congress to “make or alter” state election regulations. Art. I, §4, cl. 1. When Congress legislates with respect to the ‘Times, Places and Manner’ of holding congressional elections, it necessarily displaces some element of a pre-existing legal regime erected by the States. Because the power the Elections Clause confers is none other than the power to pre-empt, the reasonable assumption is that the statutory text accurately communicates the scope of Congress’s pre-emptive intent. Moreover, the federalism concerns underlying the presumption in the Supremacy Clause context are somewhat weaker here. Unlike the States’ ‘historic police powers,’ (citation ommitted) ‘the States’ role in regulating congressional elections—while weighty and worthy of respect—has always existed subject to the express qualification that it“terminates according to federal law.’”

Fun Scalia jab at Alito and the Dissent in footnote 3 (just know Scalia holds a particular dislike of new amorphous, undefined, easily manipulated language, rules, or standards which is fun when he is on your side): “The dissent accepts that a State may not impose additional requirements that render the Federal Form entirely superfluous; it would require that the State ‘us[e] the form as a meaningful part of the registration process.’ Post, at 7 (opinion of ALITO, J.). The dissent does not tell us precisely how large a role for the Federal Form suffices to make it “meaningful”: One step out of two? Three? Ten? There is no easy answer, for the dissent’s ‘meaningful part’ standard is as indeterminate as it is atextual.”
Link to Arizona v. Inter Tribal Council of Arizona, INC. here

Colorado Supreme Court - June 10, 2013

2013-06-17T23:23:00.000-06:00

Dooly v. People - Lawyer Erred In Moving To Dismiss Client's 35(c) Without Client's Consent

Facts: Mr. Dooly filed a Rule 35(c) motion with the trial court. The trial court appointed the Public Defender’s Office. After a year went by, Mr. Dooly claimed his lawyer was not investigating his claims. The trial court ordered the prosecution to respond to Mr. Dooly’s substantive allegations in the 35(c) motion. Before the prosecution responded, Mr. Dooly's lawyer moved to dismiss the 35(c) because “the motion was without merit.” The trial court granted the motion.

Issue: Whether the trial court erred in granting defense counsel’s motion to dismiss the 35(c) without Mr. Dooly’s consent?

Held: Yes.

Reasoning: Justice Coats wrote “Because every person convicted of a crime is provided a statutory right to make application for postconviction review and is entitled to a prompt review and ruling granting or denying any motion substantially complying with Form 4 , the District Court erred in granting counsel's motion to dismiss against Dooly's wishes. The judgment of the Court of Appeals is therefore reversed with instructions to order that the defendant's application for postconviction relief be reinstated.”

Text of People v. Dooly here:

Link to Dooly v. People

US Supreme Court - June 17, 2013

2013-06-17T21:51:00.004-06:00

Salinas v. Texas - 5th Amendment - Invocation of Right to Silence - Comment on Silence - Pre-Custodial Silence
Facts: According to Justice Alito the plurality author, “Without being placed in custody or receiving Miranda warnings, petitioner voluntarily answered the questions of a police officer who was investigating a murder. But petitioner balked when the officer asked whether a ballistics test would show that the shell casings found at the crime scene would match petitioner’s shotgun. Petitioner was subsequently charged with murder, and at trial prosecutors argued that his reaction to the officer’s question suggested that he was guilty. Petitioner claims that this argument violated the Fifth Amendment, which guarantees that ‘[n]o person . . . shall be compelled in any criminal case to be a witness against himself.’”

Issue: Whether introduction of Mr. Salinas’s pre-custodial silence violated his right to remain silent under the 5th Amendment?

Held: No.

Reasoning: In a 3-2-4 split, the Court affirmed the trial court’s ruling. Justice Alito, joined by Chief Justice Roberts and Justice Kennedy, authored the plurality opinion and shows no real world perspective. Justice Alito held that the 5th Amendment did not protect Mr. Salinas because he made no affirmative effort to invoke the right. The plurality found that simply remaining silent does not sufficiently invoke the right to silence. Thus, the plurality found comments by the prosecution regarding Mr. Salinas’s silence during trial did not violate Mr. Salinas’s rights under the 5th Amendment.

Justice Thomas joined by Justice Scalia concurred in the result by reasoning that Griffin v. California, 380 U.S. 609 (1965) should be overruled. In Griffin, the Court held neither the prosecution nor the trial court may comment upon the silence of an accused as an inference of guilt.

Handwringer, Justice Breyer, joined by the moderate bloc of Justices Ginsberg, Sotomayor, and Kagan, summed up the most logical and just reading of the 5th Amendment's Right to Silence, “In my view the Fifth Amendment here prohibits the prosecution from commenting on the petitioner’s silence in response to police questioning. And I dissent from the Court’s contrary conclusion.”

http://www.supremecourt.gov/opinions/12pdf/12-246_1p24.pdf

US Supreme Court - June 17, 2013

2013-06-17T20:42:00.000-06:00

Alleyne v. US - 6th Amendment - Apprendi - Mandatory Minimums - Jury Trial

Facts: A jury convicted Mr. Alleyne of robbery without finding Mr. Alleyne branshied a firearm. Not to worry, the other prosecutor in criminal cases, the judge, unceremoniously found Mr. Alleyne brandished the firearm. According to the decision, Mr. Alleyne’s accomplice brandished the gun. A finding that Mr. Alleyne brandished the firearm raised the mandatory minimum from 5 years to 7 years in prison.

Issue: Whether the trial court violated Mr. Allenyne's 6th Amendment right to a jury trial by increasing the mandatory minimum of his sentence by two years without a jury finding?

Held: Yes

Reasoning: In a majority opinion, Justice Thomas, the truest believer in the Right to a Jury Trial, wrote, “The essential point is that the aggravating fact produced a higher range, which, in turn, conclusively indicates that the fact is an element of a distinct and aggravated crime. It must, therefore, be submitted to the jury and found beyond a reasonable doubt. Because there is no basis in principle or logic to dis-tinguish facts that raise the maximum from those that increase the minimum, Harris was inconsistent with Apprendi. It is, accordingly, overruled.”

http://www.supremecourt.gov/opinions/12pdf/11-9335_b8cf.pdf

Colorado Court of Appeals - 4-12-12 - People v. M.C.

2012-05-24T11:57:00.002-06:00

People v. M.C. Willful Destruction of Wildlife

Facts: In Grand County, Colorado, where hunting remains king, a friend of M.C.’s killed a prong horned antelope while M.C., the shooter, and another kid went out to shoot at clay pigeons. Because all kids need a felony adjudication, prosecution filed willful destruction of wildlife against M.C., a class five felony. The prosecution summed up the facts of this case in its response to the bill of particulars order, “[M.C.] abandoned the wildlife when he left the original kill site with the person who killed the wildlife. He went with the person who killed the wildlife back to a [sic] juvenile's house. He then returned to the scene with the person who killed the wildlife. He helped move the carcass from the original kill spot to a different location. He and the others then abandoned the wildlife.” In a court trial, the judge found the youngster guilty (kids do not have a right to a jury trial.) In his appeal, M.C., unfortunately, did not raise sufficiency of the evidence, but only challenged the law as unconstitutional

Issue: Whether willful destruction of wildlife statute is unconstitutionally vague?

Held: No.

Reasoning: The legislators defined ‘take’ but instead ambiguously used of the term ‘taken’ in the destruction of wildlife statute. Nevertheless, the Court of Appeals found the statute as a whole easily understood by anyone of common intelligence. Further, the Court found the dictionary definition of abandon provided sufficient notice. Judge Furman agreed with M.C. in dissent, and argued that M.C. never acquired an interest in the antelope sufficient enough to ‘abandon’ the animal. Judge Webb with Judge Russel concurring wrote the decision.
>Link to People v. M.C. here<

Colorado Court of Appeals - 4-12-12 - People v. Turecek

2012-05-14T14:47:00.000-06:00

People v. Turecek Restitution

Facts: Mr. Turecek torched his own home. Apparently, he did not own the home outright as the prosecution charged him with 1° arson and 4° arson. Mr. Turecek pled to 4° arson. On the day of sentencing, some representative from an insurance company told the trial court the insurer only had an estimate at the time but could “easily” get the trial court a definite amount within 90 days. The Court told the prosecution to follow up with definitive numbers on the restitution within ninety days. Further, the Court commented it needed an amended motion as the prosecution’s initial motion was inaccurate because the insurer was still investigating. The prosecution failed, and some nine months later filed a motion with Court to grant the original, inaccurate, incomplete motion for restitution. The trial court obliged.

Issue: Where the prosecution showed no good cause, whether the trial court abused its discretion by granting a restitution request well be beyond the 90-day statutory deadline?

Held: Yes.

Reasoning: In Colorado, the statute, C.R.S. §18–1.3–603(1)(b), allows the prosecution to seek up to ninety days to determine the restitution. The statute also allows an enlargement of time beyond ninety days, if the prosecution shows good cause to the trial court. Here, the Court of Appeals determined the prosecution did neither, and reversed the restitution order. Of the litany of complaints the prosecution claimed for failing miserably at its job, two were significant – one, the error, if any, was harmless, and two, the U.S. Supreme Court the U.S. Supreme Court in Dolan v. United States, –––U.S. ––––, 130 S.Ct. 2533 (2010), allowed for an extension of time under similar circumstances.

Regarding the harmless error, the prosecution claimed that Mr. Turecek knew restitution was coming and the trial court held a hearing on the restitution where he appeared and where counsel represented him. The Court of Appeals held because the statute mandates 90-days for restitution and includes a good cause section to enlarge that time, the error cannot be considered harmless. The Court of Appeals seemed particularly irritated that the prosecution lazed around for some nine months, disregarded the trial court's order, and never filed an accurate motion to resolve the restitution.

Regarding U.S. Supreme Court in Dolan, the Court of Appeals quoted entirely from the dissent in that 5-4 decision, and came back around to the fact this is a state, not a federal statute. Whatever persuasive authority Dolan may be, the Court of Appeals held against the prosecution. Panel: Judge Gabriel wrote the opinion with Judges Roy and Terry concurring.
>Link to People v. Turecek here<

Colorado Supreme Court - 5-14-12 - People v. Angel

2012-05-14T14:30:00.002-06:00

People v. Angel Work Product

Facts: In El Paso County, Colorado, three police officers went to a motel to arrest someone on an arrest warrant. They claimed they saw the suspect sitting the backseat of a car with three other people. The cops surrounded the car which prompted the driver to put the car in gear. One of the cops claimed the car ran over his foot. So, of course, the cop shot the driver (the opinion did not disclose any details of any injury to the cop). However, the driver managed to then drive away, and drive long enough to get away. The driver ended up still in the car at a hospital some 3 hours later. The DAs supposedly investigated the case, and white washed the cop shooting the driver. However, they charged Ms. Angel with vehicular eluding and other charges (theory: she drove the car after the driver died). As part of the DAs white wash of the cop shooting, they compiled witness interview notes and created a power point presentation. Ms. Angel sought the notes and power point in the cop shooting. The trial court ordered disclosure of the notes and power point. The trial court reasoned that work product only includes the case in which the prosecution charged Ms. Angel, and work product does not encompass notes, impressions, etc. from other cases such as the cop shooting the unarmed driver.

Issue: Whether the trial court abused its discretion by ordering disclosure of work product in another criminal investigation/case?

Held: Yes.

Reasoning: The Colorado Supreme Court held work product covers any case or investigation. The rule, Colorado Rules of Criminal Procedure, Rule 16(I)(e)(1), reads, “Disclosure shall not be required of legal research or of records, correspondence, reports, or memoranda to the extent that they contain the opinions, theories, or conclusions of the prosecuting attorney or members of his legal staff.”

The Colorado Supreme Court repudiated the reasoning of the trial court, “The purpose of the work product doctrine is to protect the mental impressions and legal analysis of the attorney, so that she may properly analyze the merits of and prepare for the disposition of her client’s case.” Thus, “[T]he purpose of Crim. P. 16(I)(e)(1)… is to provide prosecutors with a degree of privacy in which they may candidly and thoroughly evaluate legal claims and strategies. If we were to hold that Crim. P. 16(I)(e)(1), applies only to protect opinion work product created in anticipation of the case before the court, then a prosecutor, when investigating a criminal episode in the future, would have a substantial incentive to refrain from candidly and thoroughly evaluating a case for fear that her mental impressions, legal analysis, and trial strategies would be discoverable by defendants in future cases.” (citations omitted)

>Link to People v. Angel here<

Colorado Court of Appeals 4-12-12 People v. Davis

2012-04-19T20:47:00.000-06:00

People v. Davis COCCA / Statute of Limitations

Facts: Prosecutors in Denver conjured up racketeering garbage against supposed gang members in the Denver area, one being Mr. Davis. At the time of these charges, Colorado already incarcerated Mr. Davis on a lengthy prison sentence for aggravated robbery and 1˚ assault. Nevertheless, based upon a second degree assault while he was in prison, the prosecution charged various COCCA counts against him – some within the 10 year time limit, other outside, and others outside the statute of limitations of 3 years.

Issue: Whether an offense may form the basis of COCCA racketeering charge when the statute of limitations for that offense expired?

Held: Yes.

Reasoning: The statute reads:

“Pattern of racketeering activity” is defined as “engaging in at least two acts of racketeering activity which are related to the conduct of the enterprise ... and if the last of such acts occurred within ten years (excluding any period of imprisonment) after a prior act of racketeering activity.” § 18–17–103(3), C.R.S.2011.

Giving entirely too much power to the prosecution, the Court of Appeals, following federal law under RICO, held that if one predicate crime fell within the statute of imitations, no time limit applied to any other predicate offenses. (Panel: Judge Miller wrote the decision with Judges Roman and Richman concurring)
>Link to People v. Davis here<

Colorado Court of Appeals 4-12-12 People v. Douglas

2012-04-19T20:18:00.000-06:00

People v. Douglas Internet Luring / Complicity / Sufficiency / Enticement / Solicitation

Facts: Colorado prosecutors, not content with filling prisons with Coloradans, import crime from other states – here Pennsylvania where Mr. Douglas resided. In Fremont County, Colorado, a detective poses as a mom who whores out her daughter over the Internet - second decision in a month in a case involving this detective and this ruse. Unfortunately, Mr. Douglas ensnared himself in this idiotic trap. A jury convicted him of Internet luring, enticement of a child, and solicitation of sexual assault on a child in a position of trust.

Issue: Whether the prosecution presented sufficient evidence to convict Mr. Douglas of Internet luring, exploitation of a child and attempted sexual assault on a child in a position of trust?

Held: No on Internet luring; yes on both the enticement and the solicitation.

Reasoning: Because the detective did all the internet luring herself, the prosecution presented no evidence that Mr. Douglas lured the fake kid over the Internet. Instead, the prosecution presented evidence that Mr. Douglas was complicit with the detective pretending to be a mom who whored out her daughter over the internet. Essentially, because the detective – fake mom - committed no crime, Mr. Douglas could not be complicit in any crime.

However the Court of Appeals found the prosecution did present sufficient evidence of enticement and solicitation. On the enticement, the Court of Appeals held that through six-degrees of separation, Mr. Douglas did entice the fake kid - in initial chats, he told the fake mom she could teach the kid how to 'suck', and he made plans to have a three-way with the "mom" and fake kid.

On the solicitation charge, Mr. Douglas asked the "mom” to engage and assist him in engaging in sexual contact with the fake kid, and thus, the Court of Appeals held the prosecution presented sufficient evidence of solicitation of sexual assault on a child in a position of trust. (Panel: Judge Miller wrote the decision with Judges Roman and Richman concurring)

>Link to People v. Douglas here<

Colorado Court of Appeals 3-29-12 People v. Torrez

2012-04-15T15:12:00.002-06:00

People v. Torrez Pre-Sentence Confinement Credit

Facts: Out of Denver, a jury found Ms. Torrez not guilty by reason of insanity in a murder case. The Denver court sent her to the state hospital. Subsequently, in Jefferson County, she pled, and the court sentenced Ms. Torrez to 10 years in prison, with 83 days pre-sentence confinement credit. Ms. Torrez sought an additional 1,493 days pre-sentence confinement credit for time Denver and the state hospital held her on the Jefferson County case.

Issue: Under the latest amendment in 2003 to C.R.S. §18-1.3-405, does the statute permit pre-sentence confinement credit on a sentence when another jurisdiction holds an accused?

Held: No.

Reasoning: The Court of Appeals all but begged the Colorado Supreme Court to reverse the holding here. The Court of Appeals reasoned despite the plain language statute, which dictates all the additional credit, it could not grant the credit due to Colorado Supreme Court precedent. However, the Court of Appeals found that precedent did not prohibit it from granting time to Ms. Torrez since the jury in Denver found her not guilty by reason of insanity.

Previously, the Colorado Supreme Court came up with test not in the statute – ‘substantial nexus’. The Court then promptly ignored its manufactured test, and denied credit whenever the jail in a specific jurisdiction did not hold the accused on the offense in that jurisdiction. People v. Massey, 736 P.2d 19 (Colo. 1987); People v. Freeman, 735 P.2d 879 (Colo. 1987). For parolees, the Court whimsically held that credit only goes to the parole period and not the new offense. People v. Norton, 63 P.3d 339 (Colo. 2003). Again, nary a word in the statute limiting credit for parolees. Unthwarted these strict-constructionalist justices (Justices Eid, Rice, and Coates) marched on unhinged from the confines of actual statutory language. Since these decisions, the legislature again amended the statute to make it crystal clear that credit, wherever served, under whatever conditions, and despite judicial handwringing, must be granted. The statute reads simply enough: “A person who is confined for an offense prior to the imposition of sentence for said offense is entitled to credit against the term of his or her sentence for the entire period of such confinement.” (panel: Judge Hawthorne wrote the opinion, and Judges Lichtenstein and Booras concurred).

>Link to People v. Torrez here<

Colorado Court of Appeals 3-29-11 People v. Bondurant

2012-04-12T22:38:00.002-06:00

People v. Bondurant Mental Condition Negating Mens Rea

Facts: A jury convicted Mr. Bondurant of two counts of first-degree murder, second-degree murder, and a slew of other charges. Mr. Bondurant sought to introduce evidence of his anxiety, depression, and panic attacks to negate the mens rea of the alleged crimes. However, Mr. Bondurant objected to the court appointed evaluation required by statute.

Issue: Whether the statutes C.R.S. §16–8–107(3)(b), and relevant portions of §16–8–103.6 and §16–8–106, requiring a state mental evaluation violates the separation of powers doctrine, a defendant's privilege against self-incrimination, the right to present a defense, the right to effective assistance of counsel, or is unconstitutionally vague both on its face and as applied?

Held: No.

Reasoning: Separation of Powers: The Court of Appeals ignored the argument that the statute set an additional condition precedent that the judiciary's own rule did not impose. Mr. Bondurant argued that this usurped the judiciary’s authority to set procedure. The Court of Appeals simply disagreed.

Right to present a defense: The Court held the statute did not prohibit any defense, but merely set procedure to pursue a defense.

Privilege against self-incrimination: The Court found, “Here, this statutory scheme evinces the General Assembly's intent that information obtained in compulsory mental examinations be admissible only on the issue of mental condition.” Hence, according to the Court, the statute does not violate the 5^th Amendment.

Effective assistance of counsel: The Court held, “Having concluded, consistently with Roadcap, that the statutory scheme does not preclude a defense involving the defendant's mental condition, it necessarily follows that the statutory scheme does not violate a defendant's right to effective assistance of counsel.” (Citing People v. Roadcap, 78 P.3d 1108 (Colo. App. 2003))

Unconstitutionally vague on its face or as applied: The Court found the statute is not incomprehensible in all its applications. Further, the term ‘cooperate’, the Court reasoned, did not require folks of common intelligence to guess at its meaning.
(panel: Judge Taubman wrote the decision and Judges Dailey and Fox concurred).

>Link to People v. Bondurant here<

Colorado Court of Appeals 3-29-12 People v. Brooks

2012-04-12T14:58:00.001-06:00

People v. Brooks Sex Offender Registration / Out of State Convictions

Facts: Texas previously convicted Mr. Brooks of “indecency with a child by exposure”. After dutifully registering every quarter for about two years in El Paso County, Colorado, a detective sought to confirm Mr. Brooks' address. The cop complained Mr. Brooks moved, did not unregister the old address, and did not re-register his new address. The prosecution charged Mr. Brooks with two felony counts under the sex offender registration statute. Mr. Brooks’ lawyers argued at a court trial that Colorado did not require registration for the offense under which Texas convicted Mr. Brooks. The trial court ignored the defense and convicted Mr. Brooks of misdemeanor offenses for failing to register.

Issue: Whether the Texas conviction for “indecency with a child by exposure” requires a person to register as a sex offender in Colorado?

Held: No.

Reasoning: The Court of Appeals (panel: author Judge Graham and Judges Carparelli and Booras concurring) compared the elements of the indecent exposure statute in Colorado with the statute under which Texas convicted Mr. Brooks. The Court found that Colorado required an additional element, “under circumstances in which such conduct is likely to cause affront or alarm to another person.” Hence, the Court of Appeals held the offense under which Texas convicted Mr. Brooks did not amount to indecent exposure in Colorado, contrary to what the prosecution argued. Thus, Mr. Brooks never needed to register as a sex offender. Therefore, the Court of Appeals reversed Mr. Brooks' convictions. A colleague, Deputy Public Defender Rory Taylor, wrote the brief and argued the case on appeal after co-PD Kelly Moss raised, argued, tried the case in District Court. Nice work all around.

>Link to People v. Brooks here<

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

2012-04-12T13:34:00.001-06:00

People v. Esparza 4^th Amendment / Definition of ‘Search’ / Dog Sniff

Facts: In Craig, Colorado, bored police stopped Ms. Esparza for a traffic violation. The police subsequently arrested her driving under suspension. After arresting her, the police brought in a supposed drug-sniffing dog to snoop around Ms. Esparza’s truck. Of course, the police claim the dog ‘hit’ on something. On later date, the same cop saw Ms. Esparza driving the truck. The cop, suspecting that Ms. Esparza’s license was still under suspension, stopped her, confirmed the suspension, and arrested her. Again, after the arrest the police brought out the drug-sniffing dog to snoop around the truck. Again, the police claim the dog ‘hit’ on something. The something the dog hit on? A pipe supposedly used to smoke meth – nothing else, no baggies, no usable quantities, not anything - just burnt residue.

Issue: Whether the dog sniff constituted a search?

Held: No.

Reasoning: Justice Coates, writing for the majority, confuses the right to be free from unreasonable searches with the illegality of meth. He wrote, “We now hold that an interest in possessing contraband cannot be deemed legitimate under the state constitution any more than under the federal constitution, and that official conduct failing to compromise any legitimate interest in privacy cannot be deemed a search under the state constitution any more than under the federal constitution.” To Justice Coates and the rest of the majority, the ends justify the means. Because no one possesses any legitimate privacy interest in something illegal, police conduct to recover the contraband cannot be unconstitutional. It’s tautological, of course.

Deputy Public Defender Emily Wickham, the lawyer who defended Ms. Esparza and argued the case on interlocutory appeal, understood the tautology. Ms. Wickham smartly couched her entire argument under the state constitution because in Illinois v. Caballes, 543 U.S. 405, 409 (2005), the U.S. Supreme Court espoused the same tautology, and found a similar dog sniff constitutional under the U.S. Constitution

(The super sniffing dog ‘hit’ on burnt residue in a pipe? People believe this?)

>Link to People v. Esparza here<

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

2012-04-09T08:54:00.002-06:00

People v. Wilburn Mens rea / Mistake of Fact / Expert Opinion / Insanity

Facts: Mr. Wilburn missed a court date on the morning of Monday, May 16. However, after being contacted by his attorney, Mr. Wilburn arrived at 1:30PM on the 16th. Essentially, Mr. Wilburn arrived about 5 hours late for court. Never an office to miss an opportunity to be petty, the District Attorney’s Office added a charge of violating a condition of bond. In his defense, Mr. Wilburn asserted he suffers from a severe learning disorder where he transposes numbers – here a 6 for a 9. Thus, Mr. Wilburn believed the trial court set his hearing date for the 19th instead of the 16th. Prior to trial, Mr. Wilburn’s attorney gave notice to the court and the prosecution that Mr. Wilburn intended to introduce evidence of his learning disorder to negate the mens rea element of knowingly violating the bond condition – a mistake of fact under C.R.S. §18-1-504(1)(a). Both the prosecution and the trial court believed the issue of the learning disability was the type that required a plea of insanity or impaired mental condition. Thus, the prosecution sought an extensive, 45-day, inpatient evaluation of Mr. Wilburn by the state hospital, and the trial court, believing it had no discretion, ordered the same. The defense argued, under C.R.S. §16-8-107(b), the trial court does have the authority to set the time and place of the evaluation. The defense argued the statute carves out a section for situations like Mr. Wilburn's. Thus, the statute, under that specific section, only requires an expert evaluation of the condition.

Issue: Whether the trial court abused its discretion when it found Mr. Wilburn must plead not guilty by reason of insanity or impaired mental condition, requiring an extensive, 45-day, inpatient evaluation by the state hospital?

Held: Yes.

Reasoning: The unanimous Colorado Supreme Court reasoned under C.R.S. §16-8-107(b), the defense could present expert testimony on the issue of Mr. Wilburn’s learning disability without a entering a plea of insanity or impaired mental condition. The Court found the evidence of the learning disability relevant to negate the mens rea element. Further, the Court found that a court-appointed, expert-evaluation of the learning disability should be ordered by the trial court instead of 45-day, inpatient, insanity evaluation at the state hospital. The Court laid out, in baby steps, what defense lawyers and trial courts in the future need to do to assert or present this type of evidence. Lastly, the Colorado Supreme Court, through People v. Van Rees, 125 P.3d 403 (Colo. 2005), People v. Flippo, 159 P.3d 100 (Colo. 2007), and here, in People v. Wilburn, sufficiently defined what may be introduced as evidence to negate the mens rea element without the necessity of pleading not guilty by reason of insanity.

>Link to People v. Wilburn here<

U.S. Supreme Court 4-2-12 Rehberg v. Paulk

2012-04-02T15:47:00.003-06:00

Rehberg v. Paulk Immunity

Facts: After a court dismissed three separate indictments all alleging the same facts, Mr. Rehberg filed a lawsuit against the pissant that is Mr. Paulk. Mr. Paulk worked as the Chief Investigator for some small rathole District Attorney's Office in Albany, Georgia. Seems Mr. Rehberg was none too pleased with the hospital in Albany, and let the hospital, a Dr. James Holtz, and everyone else know about it via fax and other methods. The hospital and Dr. Holtz worked themselves into a tizzy, contacted Mr. Paulk, and as a favor, Sir Pissant Paulk launched a criminal investigation of Mr. Rehberg. Three separate times Mr. Paulk testified to a grand jury, and three separate times he successfully convinced a grand jury to indict Mr. Rehberg on burglary and assault. Three separate times, Mr. Rehberg successfully got the indictments dismissed for lack of sufficiency. After the third dismissal, Mr. Rehberg filed a lawsuit against the vindictive Mr. Paulk.

Issue: Whether the witness immunity protects law enforcement witnesses who testify during a grand jury?

Held: Yes.

Reasoning: Turning a blind-eye to the abuse of power here, the Court simply held that witnesses in grand jury settings should be afforded all the same protections as witnesses who testify in jury trials. Lawsuit dismissed.

>Link to Rehberg v. Paulk here<

U.S. Supreme Court 4-2-12 Florence v. Board of Chosen Freeholders of County of Burlington

2012-04-02T14:49:00.000-06:00

Florence v. Board of Chosen Freeholders of County of Burlington Fourth Amendment – Strip Searches

Facts: From an old case, Mr. Florence owed a fine in Essex County, New Jersey. At the time the court imposed the fine, Mr. Florence set up a payment plan. He fell behind on the payment plan, and the court issued a warrant. After the warrant issued, Mr. Florence paid off the remaining amount owed. However, the warrant still showed up on New Jersey State Patrol’s statewide database. Later, in a routine traffic stop on a minor traffic infraction, the warrant showed up, and the state patrol arrested Mr. Florence. As part of a standard procedure, jail personnel strip-searched all new inmates/detainees. After being released, Mr. Florence filed a civil rights suit. The District Court granted summary judgment in favor of Mr. Florence. The U.S. Supreme Court summarized the District Court’s reasoning, “It concluded that any policy of ‘strip searching’ nonindictable offenders without reasonable suspicion violated the Fourth Amendment.”

Issue: Whether a suspicionless strip-search on an arrestee who will be admitted into a jail’s general population violates the Fourth Amendment?

Held: No.

Reasoning: The Supreme Court, with Justice Kennedy writing for the majority, reasoned that prevention of weapons, drugs, and violence permitted warrantless and suspicionless strip searches on anyone who will be admitted into a jail’s general population. However, in concurring opinions, both Chief Justice Roberts and Justice Alito pointed out the possible limitations and/or exceptions to the rule announced today by the court. Justice Alito wrote, “It is important to note, however, that the Court does not hold that it is always reasonable to conduct a full strip search of an arrestee whose detention has not been reviewed by a judicial officer and who could be held in available facilities apart from the general population. Most of those arrested for minor offenses are not dangerous, and most are released from custody prior to or at the time of their initial appearance before a magistrate. In some cases, the charges are dropped. In others, arrestees are released either on their own recognizance or on minimal bail. In the end, few are sentenced to incarceration. For these persons, admission to the general jail population, with the concomitant humiliation of a strip search, may not be reasonable, particularly if an alternative procedure is feasible.

Justice Breyer, joined by Justices Ginsberg, Sotomayor and Kagan, dissented. The dissent argued any suspicionless search on minor offenses violated the Fourth Amendment. In the end, the majority, the concurrences and the dissent highlighted the indignity and humiliation of strip searches. All the justices, except Justices Scalia and Thomas, seemed to agree that minor offenders who will not be admitted into the general population should not be strip searched without at least a showing of reasonable suspicion.

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

Colorado Supreme Court 3-19-12 People v. Salazar

2012-03-29T09:25:00.000-06:00

People v. Salazar Rule 403 / Rape Shield / Alternate Suspect

Facts: The prosecution charged Mr. Salazar with a slew of charges relating to the alleged sexual abuse of his wife’s eight year-old niece. The niece cannot see without glasses, likely did not wear her glasses at the time of the assaults, and she lived with her grandfather during all the alleged incidents. Mr. Salazar sought to admit into trial, as alternate suspect evidence, the sexual abuse suffered by his wife at the hands of her father, who is the niece’s grandfather. Moreover, the wife testified that she was the same age as niece when her father abused her. After a hearing where the wife testified about the abuse inflicted upon her by her father, the trial court granted the defense’s motion to admit the testimony. The trial court found it relevant, not barred by the Rape Shield Statute, and not prohibited by Rule 403. The prosecution took the issue up as a Rule 21 with the Colorado Supreme Court.

Issue: Whether the trial court abused its discretion by allowing evidence of the sexual assault upon a separate victim by an alternate suspect?

Held: Yes

Reasoning: The reasoning of the majority amounts to inane, blind rationalization. Chief Justice Bender wrote a lone dissent:

“In my view, the alternate suspect evidence has significant probative value not substantially outweighed by the danger of unfair prejudice. It has ‘a tendency to prove the proposition for which it is offered’—that is, that the grandfather, not the defendant, committed the assault in this case ‘If judicial self-restraint is ever desirable, it is when a Rule 403 analysis of a trial court is reviewed by an appellate tribunal.’ We do not look to see if we agree with the trial court, but, rather whether the trial court's decision fell within the range of reasonable options. I would not, as an appellate judge, insert my judgment for that of the trial court's and therefore I would affirm the trial court's ruling. Hence, I respectfully dissent.” (citations omitted).

Only when the state whines would the Court find an abuse of discretion regarding a rule of evidence. To illustrate the ridiculousness of the holding, read Masters v. People, 58 P.3d 979 (Colo. 2002). In Masters, this same Court refused to find an abuse of discretion where some psychologist opined doodles done by Mr. Masters evinced the mind of a man who killed a woman. The prosecution had no other evidence linking Mr. Masters to the unsolved crime, and the jury convicted him of 1˚ murder. Thankfully, since this dreadful decision, David Wymore and Maria Liu successfully freed Mr. Masters, and won settlements in lawsuits over the false and wrongful conviction.
>Link to People v. Salazar here<

Colorado Court of Appeals 3-15-12 People v. Estes

2012-03-27T16:53:00.002-06:00

People v. Estes Judicial Misconduct / Prosecutorial Misconduct

Facts: Mr. Estes's cousin, a kid, got hit in the back either intentionally or accidentally by a neighbor kid. At 11:30 pm, Mr. Estes went to the home of the alleged assailant, banged on the door, and made demands. Eventually, he starts to leave, claims another person hit him with the door of the car that pulled up. Mr. Estes punched one person and pointed a gun at the entire group of people from the home. A jury convicted him of menacing and third degree assault. During voir dire, Adams County District Court Judge Wasserman tells the jury that, “This defendant did something. I'm going to tell you that right now, he did something. We didn't just walk out to the bus stop this morning and find [defendant] sitting there waiting for a bus and say: Guess what ... this is your lucky day. Okay? Obviously, he did something.”

Further, during closing the prosecutor argued, “[W]hen [this trial] started, you were told that you have the presumption of innocence. That presumption of innocence, after the evidence has come in, that cloak, the presumption of innocence is now gone.... You have the evidence. You have all that you need and ... you should have to find the defendant guilty.”

Issue: Whether the trial court lessened the prosecution’s burden of proof with the ‘defendant did something’ comment during voir dire?

Held: No.

Reasoning: The Court of Appeals went through a number of unpublished cases where the Court disapproved of Judge Wasserman’s explanation that the ‘defendant did something’ to get here (See, e .g., People v. Bonilla–Barrera, (Colo.App. No. 09CA0462, Mar. 1, 2012)(not published pursuant to C.A.R. 35(f)) (“We do not condone the trial court's statement that defendant ‘did something.’ ”); People v. Williams, (Colo.App. No. 09CA0906, Jan. 12, 2012) (not published pursuant to C.A.R. 35(f)) (similar); People v. Cruz–Avila, (Colo.App. No. 09CA1957, Dec. 8, 2011) (not published pursuant to C.A.R. 35(f)) (similar); People v. Harris, (Colo.App. No. 09CA1626, Nov. 3, 2011)(not published pursuant to C.A.R. 35(f)) (similar);People v. Edwards, (Colo.App. No. 08CA1764, Aug.12, 2010) (not published pursuant to C.A.R. 35(f))(similar).)

However, while frowning on the comments, again, the Court of Appeals refused to do anything about it. The Court found no substantial prejudice to Mr. Estes.

Issue: Whether the prosecutor’s legally wrong argument regarding the presumption of innocence amounted substantial prejudice?

Held: No.

Reasoning: The Court of Appeals found the comments by the prosecutor legally wrong, the error obvious, but refused to find any substantial prejudice.

The Court of Appeals pointed out that trial counsel did not object to either the trial court's comments during voir dire or to the prosecutor’s comments during closing argument. Thus, the Court of Appeals reviewed the errors under the plain error analysis. Chief Judge Davidson wrote the opinion with Judge Vogt concurring; Judge Rothenberg wrote a dissent where he found both the trial court and the prosecutor committed plain error.

>Link to People v. Estes here<

Colorado Court of Appeals 3-15-12 People v. Nelson

2012-03-27T15:49:00.000-06:00

People v. Nelson Fourth Amendment – Warrantless Search – Exigent Circumstances

Facts: Based upon a snitch, the police go to an apartment where Mr. Nelson resided. At the apartment, the police knocked, lied about their identity, and claimed they saw a pot pipe in the apartment. When the police see another man ‘run’ out the back door, the police barge into the apartment, take Mr. Nelson down with force, and chase the other man. Subsequently, the police search the apartment.

Issue: Whether the police had exigent circumstances to enter the home?

Held: Yes.

Reasoning: The Court of Appeals reasoned the snitch’s tip along with the pot pipe and running occupant justified the officers entry into the home. Further, although not ‘condoning’ police lies and ruses, the Court of Appeals did just that. The Court of Appeals, like so many other courts, ignores that the police lied to create their own exigency, if one actually existed. Judge Taubman wrote the opinion with Judges Fox and Dailey concurring.

>Link to People v. Nelson here<

Colorado Court of Appeals 3-15-12 People v. Ujaama

2012-03-27T15:07:00.002-06:00

People v. Ujaama Confrontation – Closed Circuit TV

Facts: A jury convicted Mr. Ujaama of 1˚ murder and auto theft. During trial, the prosecution sought and the trial court allowed the step-daughter to testify by closed circuit TV. The prosecution filed a motion alleging that the girl would suffer emotional distress if forced to testify in front of Mr. Ujaama.

Issue: Whether the trial court abused its discretion in allowing the daughter to testify by closed circuit TV?

Held: No.

Reasoning: Relying on Maryland v. Craig, 497 U.S. 836 (1990), the Court of Appeals held that allowing the testimony by TV did not violate Mr. Ujaama’s right to confront witnesses. In Craig, the U.S. Supreme Court held, “So long as a trial court makes ... a case specific finding of necessity, the Confrontation Clause does not prohibit ... using a one-way closed circuit television procedure for the receipt of testimony by a child witness.” (quoting the Court of Appeals recitation of the holding in Craig) Opinion by Judge Bailey with Judges Taubman and Fox concurring.

>Link to People v. Ujaama here<

Colorado Court of Appeals 3-15-12 People v. Finney

2012-03-27T14:10:00.000-06:00

People v. Finney Deferred – Revocation

Facts: Mr. Finney pled to sexual assault, a class-four felony, and a 3˚ assault, a class one misdemeanor. The trial court deferred the sexual assault conviction, and imposed concurrent probation on the third degree assault conviction. At the revocation hearing, Mr. Finney’s attorney waived his right to be advised of the potential penalties.

Issue: Whether the Due Process Clauses require a court to advise of the possible penalties not withstanding counsel’s waiver?

Held: No.

Reasoning: The Court of Appeals went through the presentence report, the plea paperwork, and all the failed plea colloquies where the presiding judge correctly advised Mr. Finney of the potential prison sentence, and found that Mr. Finney received an adequate advisement of the potential prison sentence. Further, the Court found Mr. Finney’s attorney waived advisement, and such an advisement is not required to revoke someone’s deferred sentence. The Court wrote, “Thus, looking to the record as a whole, we conclude that defendant's admission that he violated the terms of the deferred judgment agreement was valid and did not offend the Due Process Clause even though he was not readvised of the potential penalties.” Opinion by Judge Bernard, Russel, J., concurs; Hawthorne, J., dissent

>Link to People v. Finney here<

Colorado Court of Appeals - 3-15-12 - People v. Casias

2012-03-21T13:20:00.000-06:00

People v. Casias 1˚ Murder - Child Abuse / 404(b) – Knowing and Reckless Crimes

Facts: A jury convicted Mr. Casias of 1˚ murder of his seven-week old child, J.C. Under C.R.E. Rule 404(b), the trial court allowed evidence that Mr. Casias slapped, shook, and spanked his three year-old daughter, although none of those acts caused serious bodily injury.

Issue: Whether the trial court abused its discretion in allowing the introduction of the acts allegedly committed on A.C., Mr. Casias's daughter?

Held: Yes.

Reasoning: “Other bad acts evidence is admissible to prove a defendant's knowledge or reckless mental state, see 1 Edward J. Imwinkelried, Uncharged Misconduct Evidence § 5:24, at 65–66 & § 5:39, at 115–16 (2009), when, during the course of the bad act(s), (1) the defendant revealed guilty knowledge of a circumstance or risk; (2) the defendant gained direct knowledge of a fact or risk relevant to charged offense; or (3) the defendant learned something which circumstantially provides evidence of knowledge (or recklessness) at the time of the crime; or when (4) other bad act(s) tend to prove the requisite knowledge by virtue of the doctrine of chances. Id. §§ 5:25 to 5:28.” (footnotes omitted)

The Court of Appeals found only the fourth method, the doctrine of chances, applied. However, the Court of Appeals found the evidence inadmissible even under the doctrine of chances because the resulting injuries to A.C, the three year-old, and J.C., did not prove knowledge or recklessness. Simply put, A.C. did not suffer any serious bodily injury as a result of Mr. Casias’s actions. Thus, how could Mr. Casias know or consciously disregard a substantial risk (recklessly) from those prior acts to A.C. that his conduct here with J.C. would cause the resulting injuries to J.C.? He can’t. Conviction reversed.
>Link to People v. Casias here<

Colorado Court of Appeals - 3-15-12 - People v. Vecellio

2012-03-21T12:30:00.000-06:00

People v. Vecellio Conspiracy / Sexual Assault On A Child / Adult Chat Rooms

Facts: A cop in Fremont County pretended to be a mom who whores out her daughter. On the Adult Friend Finder website, the cop and Mr. Vecellio made contact. The cop claimed to have an incestuous relationship with her daughter, and set up a three way with Mr. Vecellio. Upon attempting to meet the fake mom and daughter, the police arrested Mr. Vecellio. The prosecution charged Mr. Vecellio with conspiracy to commit sexual assault on a child by one in a position of trust, solicitation to commit sexual assault on a child, attempted sexual assault on a child, and enticement of a child.

Issue: Whether, under the conspiracy statute, Colorado follows a unilateral approach or a bilateral approach?

Held: Unilateral.

Reasoning: The Court of Appeals found the issue to be one of first impression, and defined the differences: unilateral only requires one ‘true co-conspirator’; whereas bilateral requires at least two ‘true co-conspirators’. The Court of Appeals followed the unilateral approach.

Issue: Whether the trial court abused its discretion in allowing the prosecution cross-examine Mr. Vecellio about his sexual appetite for three-ways and other non-child, legal sex acts?

Held: Did it help demonize and convict Mr. Vecellio? Then no, no abuse of discretion.

Reasoning: Apparently none of the rape shield analysis applies to anyone accused of a crime. Thus, the more you can soil an accused with his sexual appetites and practices the better. Whereas, under rape shield, you cannot even mention the complaining witness so much as kissed someone without sending the Court, victims advocates, and the shills for the state into a downward spiral of hysteria.

Issue: Whether, with a fake kid, the prosecution provided sufficient evidence to convict Mr. Vecellio of enticement of a child?

Held: Yes.

Reasoning: Ignoring the fact that the legislature accounts for fake kids in other statutes to assign criminal liability and did not under the enticement statute, the Court of Appeals found the evidence to be sufficient. The Court of Appeals hinged its holding on the fact that the child need not perceive the acts, but only that the accused commit such acts to attempt to entice a child.

>Link to People v. Vecellio here<

Colorado Court of Appeals - 3-15-12 - People v. Welliver

2012-03-20T21:07:00.001-06:00

People v. Welliver Restitution

Facts: The prosecution claimed Mr. Welliver committed some fraud on his unemployment application, and as a result the state complained that it overpaid some seven thousand some odd dollars in unemployment. Mr. Welliver pled to a reduced charge and agreed to pay back the money. The District Court Judge, Judge Melonakis out in Adams County, did one better for the prosecution and the unemployment investigators - he imposed a 50% surcharge on top of the restitution. Judge Melonakis reasoned the statute, C.R.S § 8-81-101, called for the 50% surcharge. However, the prosecution did not charge Mr. Welliver under this specific statute. Instead, the prosecution charged Mr. Welliver under the general theft statute.

Issue: Whether the District Court abused its discretion in finding a 50% surcharge on the overpaid unemployment benefits applied?

Held: Yes.

Reasoning: The Court of Appeals looked at the definition of restitution under C.R.S. § 18-1.3-602(3)(a), and determined the 50% surcharge was neither a cost to recover an out of pocket expense nor was Mr. Welliver the proximate cause for such a surcharge. The District Court opined that the 50% surcharge amounted to part of the compensatory costs of recouping the funds. However, the Court of Appeals held the District Court abused its discretion. The Court of Appeals reversed the 50% surcharge portions of the restitution order. The Court of Appeals pointed out the state and prosecution, in all of their worldly wisdom, chose not to prosecute Mr. Welliver under the specific statute, C.R.S § 8-81-101, which allowed a 50% surcharge on the overpaid amount . Thus, the District Court did not have the authority or discretion to impose the 50% surcharge as part of the restitution order (side note: the unemployment compensation statute does not mandate criminal charges for fraudulent acts; the state could sue or pursue the loss through administrative law instead of hanging a felony on an indigent man).

>Link to People v. Welliver here<