People v. Reynolds, __ P.3d__, 2010 WL 961645 (Colo. March 18, 2010)
The evidence was sufficient to support defendant's conviction for extreme indifference murder of two drivers in a road rage incident, notwithstanding the fact that his conduct was specifically directed at one of the drivers. Slip. Op. at 12-17 (citing Candelaria v. People, 148 P.3d 178 (Colo. 2006)). The court states that even when a person acts with the conscious objective of killing a particular person, he may do so in a manner that to a rational mind also demonstrates extreme indifference to the value of human life generally or in a manner that to a rational mind merely demonstrates a willingness to take the life of that particular individual. In this case of road rage, there was sufficient evidence of a grave risk of death to the victim and all drivers of nearby vehicles generally
3. SEXUAL OFFENSES AGAINST CHILDREN
In re People v. Day, 230 P.3d 1194 (Colo. 2010)
Defendant was charged with 2 counts of sexual assault on a child and one count of pattern abuse as a sentence enhancer. Counsel and the trial court all agreed during jury instructions that a verdict of attempted sex assault on one or both counts would render the sentence enhancer invalid. Defendant was convicted of two counts attempted sexual assault on a child for two separate incidents. A different sentencing judge sentenced Defendant to an enhanced sentence under the pattern of abuse theory.
In this original proceeding under C.A.R. 21, the SC rules that a pattern of sexual abuse is ―the commission of two or more incidents of sexual contact involving a child when such offenses are committed by an actor against the same victim.‖ As a matter of law, an acquittal of sexual assault and a conviction of attempted sexual assault cannot be used as a basis for the pattern of abuse sentence enhancer.
4. THEFT BY RECEIVING
People v. Crawford, 230 P.3d 1232 (Colo. App. 2009) cert. denied, 2010WL 1843043 (Colo.
2010)
The values of things received and disposed of may be aggregated under subsections (2) through (5) of the theft by receiving statute.
Where acts are committed pursuant to a single criminal impulse, they may be combined into one count and need not be prosecuted under the six-month provision of the theft by receiving statute.
Here, the defendant's acts of disposing of stolen items were properly considered part of a single criminal impulse where: all the stolen property belonged to the same victim; was stolen in one incident; was subject to one police investigation; and was described in the same testimony at trial. The evidence supported an inference that the defendant received the property at the same time;; and the defendant conceded that she pawned or sold
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several of the items in order to recoup bond money she posted for her boyfriend, the suspected thief of the items. If multiple items are taken during a theft episode, the value of the items may be added up (aggregated) to satisfy the monetary amount for a felony.
5. WEAPONS VIOLATIONS
People v. O'Neal, 228 P.3d 211 (Colo. App. 2009) cert. denied, 2010 WL 1436208 (Colo.
2010)
Under § 18-1-901(3)(h), the phrase "capable or intended to be capable" does not modify each type of possible firearm listed in the statute. Because it modifies only "other instrument or device," under § 18-1-901(3)(h), a pistol (no matter what its condition, no matter what a defendant's intent may be with respect to it) is a "per se" firearm.
People v. Montez, __ P.3d __, 2010 WL 961652 (Colo. App. March 18, 2010)
Each weapon possessed by a previous offender constitutes a separate POWPO offense.
6. BURGLARY
People v. Montez, _ P.3d _, 2010 WL 961652 (Colo. App. March 18, 2010)
A defendant is "armed" with a deadly weapon in flight from a burglary if the weapon is "easily accessible and readily available for use by the defendant for either offensive or defensive purposes." No nexus between the commission of the crime and the weapon is required. An unloaded shotgun is a deadly weapon. Where defendant removed two unloaded shotguns from a gun case during a burglary, there was sufficient evidence for the jury to find that defendant committed the burglary when a deadly weapon was easily accessible and ready for use by defendant.
B. RIGHT TO A JURY AND WAIVER OF RIGHT
People v. Laeke, __ P.3d __, 2010 WL 4069898 (Colo. App. Nov. 25, 2009) cert. granted, 2010
WL 3529275 (Colo. 2010)
The right to a jury trial in a criminal case is inherently personal and can only be waived by the defendant. Hence, a defendant must personally waive his or her right to a jury trial, and a statement by defense counsel does not operate as a waiver. Thus, a defendant who is found to be insane after an insanity examination is still entitled to a jury trial. Defendant’s counsel cannot waive the right to jury trial. In other words, the insane defendant is still entitled to present his defense of Not Guilty on a factual basis at trial. Jury can come to one of three conclusions: Guilty, Not Guilty or NGRI. Defendant wanted a Not Guilty finding, and his counsel cannot waive that right by pleading him to NGRI.
Over the defendant's objection, his counsel entered a NGRI plea at the arraignment.. The defendant was advised and then a mental evaluation was ordered. He was found incompetent initially. Once he was restored to competency, he was evaluated and found to be insane at the
time of the commission of the offenses. At a hearing following this, the prosecution stipulated that the defendant was insane. Defense counsel asked that the court accept the stipulation. The defendant objected stating that he hoped "to prove he didn't do this in trial." The court accepted the stipulation and committed the defendant to CMHIP until he was restored to sanity. The Court of Appeals reversed the finding of insanity.
Colorado's insanity procedure post-1995 is to hold a trial where the finder-of-fact is asked to determine if the defendant has been proven guilty or is not guilty. If the defendant is found not guilty, there is a special interrogatory for them to answer as to whether the reason they found him not guilty was due to the issue of his sanity. As such, the pre-1995 bifurcated procedure for determining sanity first has been changed. The court ultimately relies on the right to a jury trial, which is personal to the defendant, and cannot be waived by counsel. Because we now have a unitary procedure for proving both guilt and sanity, even though Colorado law supports the idea that the entry of the NGRI plea can be made by counsel over the defendant's objection, if the right to a jury trial is maintained, then the defendant's rights to have the People prove the elements of the crime will be honored.
People v. Montoya, __P.3d__, 2010 WL 726037(Colo. App.March 4, 2010)
The trial court established that defendant understood his right to jury trial, that he wanted to waive it, that no one had pressured him, that he was not under the influence, and that he had ample opportunity to consult his attorney prior to making a decision. However, the trial court did not conduct an on-the-record colloquy to assess whether the waiver was knowing, voluntary and intelligent, nor did it inquire of the factors listed in Rule 23.
There is no constitutional right to waive a trial by jury; but in order for a waiver to be valid there is a constitutional requirement that it be voluntary, knowing, and intelligent. This case addresses only the proper advisement of a defendant upon waiving a jury trial pursuant to C.R.Crim.P. 23(a)(5)(II).
Although a colloquy is not constitutionally required in order to waive a jury trial, Crim. P. 23(a)(5)(II) requires that trial courts conduct on-the-record advisements informing defendants of specific elements of their right to a trial by jury and of certain consequences if they waive that right. Here: The exchange between the trial court and the defendant established that (1) the defendant understood that he had a right to a jury; (2) he wanted to waive the jury and try the case to the judge; (3) no one pressured him to waive the jury; (4) he was not affected by drugs or alcohol when making this decision; and (5) he had consulted with his attorney before making his decision. But the trial court did,not determine whether he understood that (1) his decision to waive a jury trial was his alone and could be made contrary to his counsel’s advice; (2) the waiver would aply to all issues that might have been determined by a jury, including those requiring factual findings at sentencing; and (3) the jurywould have consisted of twelve persons who would be required to reach a unanimous verdict, whereas in a trial to the court the judge alone would decide the verdict, all of which are required by the amended: rule. Therefore, the advisement was deficient. The case was remanded for an evidentiary hearing to resolve the validity of the defendant's waiver pursuant to the directive in People v. Blehm, 983 P.2d 779, 792 (Colo. 1999).
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Presley v. Georgia, 559 U.S.__, 130 S.Ct. 721 (2010)
Held: Petitioner's Sixth Amendment right to a public trial was violated because the public was
excluded from the voir dire of prospective jurors. The court pointed to two earlier decisions
(Waller v. Georgia, 467 U.S. 39 (1984), and Press-Enterprise Co. v. Superior Court of California, Riverside County, 464 U.S. 501 (1984)) that expressly held that the trial court must
consider alternatives before closing the courtroom to the public. The court does recognize that there are times when a judge may exclude for legitimate purposes, stating: "the right to an open trial may give way in certain cases to other rights or interests, such as the defendant's right to a fair trial or the government's interest in inhibiting disclosure of sensitive information." Waller v. United States, supra. "Such circumstances will be rare, however, and the balance of interests must be struck with special care."
D. JURY SELECTION-
People v. O'Shaughnessy, __ P.3d__, 2010 WL 1491646 (Colo. App. April 15, 2010)
The trial court did not clearly err in the third step of the Batson analysis regarding the prosecutor's peremptory challenges against three Hispanic prospective jurors:
The decisive question at the third step of the Batson analysis is whether counsel's race-neutral explanation for a peremptory challenge should be believed.
The trial court satisfied the third step of the analysis because its ruling that the prosecutor articulated race-neutral reasons implicitly included a finding that those reasons were credible.
The trial court did not have to personally observe a prospective juror's demeanor to credit the prosecutor's demeanor-based, race-neutral reason for striking the prospective juror. Here: The trial court could not see the
prospective juror, and thus could not personally verify the prosecutor's explanation that he challenged her for rolling her eyes during voir dire.
The defendant failed to demonstrate that non-minority jurors were similarly situated to one of the Hispanic prospective jurors where the prosecutor challenged the prospective juror because she might be sympathetic to people on drugs based on her job providing counseling at a drug rehabilitation facility. Defense counsel stated only that the non- minority jurors "may have empathetic situations," and the record did not show that any of them worked with people using drugs.
A defendant does not waive his Batson objection by failing to rebut a prosecutor's race- neutral explanation when given the opportunity. Here: Defense counsel rebutted the prosecutor's race-neutral explanations for two Hispanic prospective jurors, but not for the third.
People v. Novotny, __P.3d__, 2010 WL 961657 (Colo. App. March 18, 2010)
An assistant attorney general who handles civil cases is still a ―compensated employee of a public law enforcement agency‖ and therefore must be excused for cause from jury service, upon request. A prospective juror’s responsibilities within the organization are immaterial. This is a
bright line rule. First degree murder and first degree burglary convictions reversed and remanded for the failure to follow Rule 24 and C.R.S. 16-10-103(1)(k).
E. WITNESSES – COMPETENCY
People v. Alley, 232 P.3d 272 (Colo. App. 2010) cert. denied, 2010 WL 2582266 (Colo. Oct.
15, 2010)
An intoxicated witness is competent to testify. The BAC of .233 was a little too high for the trial court, which required the witness to sit in a waiting room. Five hours later, the BAC was down to .084, and over the defendant’s objection, the witness was allowed to testify. The court did inform the jury of the witness’ intoxication level. By the end of the witness’ testimony, he was down to .049, and the jury was also informed of that result. A witness is not required to be sober, but is only required to have the capacity to ―observe, recollect, communicate and understand the oath to tell the truth.‖ A trial court should be given wide latitude in determining the admissibility of an intoxicated witness's testimony, and it is the jury's role to determine the witness's credibility.
One day to get ready for a felony crime of violence trial is sufficient time to prepare, and does not merit a continuance or reversible error.
F. CHILD WITNESSES
People v. Wittrein, 221 P.3d 1076 (Colo. Dec. 14, 2009)
While the better practice is to hold the child competency hearing outside the jury's presence, it is a decision within the trial court's discretion. Here, there was no prejudice where the questions posed to the child were germane and the trial court's competency ruling was done outside the jury's presence.
G. EXPERTS
People v. Wittrein, 221 P.3d 1076 (Colo. Dec. 14, 2009)
The expert's testimony that she could not imagine an eight-year-old child hyper-reporting in order to be seen as a victim was invited error. The expert's answer was reasonably foreseeable given the wording of defense counsel's question. The question, if error on the part of defense counsel, was not simply an oversight but an error in strategy.
H. PRIVILEGE AGAINST SELF INCRIMINATIONS- WITNESSES
People v. Blackwell, __ P.3d__, 2010 WL 2305904 (Colo. App. June 10, 2010). The privilege
against self-incrimination can be invoked by anyone whose statements or answers might admit the commission of illegal acts or furnish a link in the-chain of evidence needed to prosecute that
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person for a crime. The burden lies: with the person invoking the privilege to establish that it is properly invoked. Once the district court finds that the privilege is properly invoked, it has no obligation to inquire further. The district court may only compel a response or punish a witness for refusing to testify if it is perfectly clear from a careful consideration of all the circumstances that the witness's answers cannot possibly have a tendency to incriminate him
I. EVIDENCE
1. RELEVANCE- CRE 403
People v. Harland, __ P.3d__, 2010 WL 2681271 (Colo. App. July 8, 2010)
Testimony that the defendant was identified through a hit in a DNA database is relevant because without it, the jury would be left to speculate how the defendant became the accused. Also, it is not unfairly prejudicial where no evidence is presented as to how an individual's DNA profile might come to be in a database; any inference that the jury would think the defendant had prior convictions is speculation.
2. CRE 404(b)/RES GESTAE
People v. Harland, __P.3d__, 2010 WL 2681271 (Colo. App. July 8, 2010)
Defendant was identified as a suspect in a sexual assault through a DNA database match. The trial court did not err in admitting evidence of the DNA database match because: (1) the detective only briefly testified about the DNA database; (2) the detective did not testify as to how defendant’s DNA came to be in the database; and (3) no evidence was presented that defendant had previously engaged in criminal conduct.
People v. Gladney, __ P.3d__, 2010 WL 1915048 (Colo. App. 2010)
,In a murder trial where the defendant killed the victim following a disputed drug deal; the trial court properly admitted, under the res gestae doctrine, evidence of the. defendant's drug dealing activity and of the disputed drug deal, because it was a necessary and integral part of the story of the crime, without which there would have been no explanation of the defendant's motive for killing the victim. A limiting instruction is not required for res gestae evidence.
3. PRIVILEGES
People v. Wittrein, 221 P.3d 1076 (Colo. Dec. 14, 2009)
It was error for the Court of Appeals to review the child victim's medical records. Here: Child victim had waived medical privilege to medical records concerning initial disclosure and PTSD diagnosis, but had not waived (either expressly or impliedly) her privilege as to her ongoing therapy records. When a defendant requests educational records of the child victim, the court must balance the privacy interest of the child against the defendant's need for the information. The court should consider the following factors: (1) the nature of the information sought; (2) the relationship between this information and the issue in dispute; and (3) the harm that may result
from the disclosure. If the defendant's need outweighs the privacy interests, the court should conduct an in camera review. A general discovery request is not a sufficient proffer from the defendant establishing his need to have the records reviewed.
J. HEARSAY- GENERAL
People v. Buckner, 228 P.3d 245 (Colo. App. 2009) cert. denied, 2010 WL 1644914 (Colo.
2010)
A cell phone is an electronic device containing electronically stored information; it is not a person or a declarant making a communicative statement within the meaning of CRE 801. The stored telephone numbers on the cell phone were not hearsay.
People v. Thornton, __P.3d__, 2010 WL 4361373 (Colo. App. Sept. 30, 2010)
The Kelley Blue Book may be admitted as proof of value of a motor vehicle under CRS § 18-4- 414(2) and C.R.E. 803(17). Expert testimony is not required to substantiate valuation of a vehicle. Any data entered into a computer or website to arrive at the Kelley Blue Book value goes only to the weight and not the admissibility of the valuation. This issue was reviewed under plain error analysis since the defendant did not raise it during trial.
K. DEFENDANT’S RIGHTS- TO BE PRESENT AND TO TESTIFY
People v. Price, 240P.3d 557, (Colo.App. June 24, 2010)
A defendant may waive his right to be present at trial, and right to testify, by his voluntary absence after the trial began in his presence - in particular here by creating a medical necessity that results in his absence from trial. The defendant attempted suicide on the second day of trial.