Colorado Court of Appeals Opinions April 15, 2010

The Court of Appeals summaries are written for the Colorado Bar Association by licensed attorneys Teresa Wilkins (Denver) and Paul Sachs (Steamboat Springs). Please note that the summaries of Opinions of the Colorado Court of Appeals are provided as a service by the Colorado Bar Association and are not the official language of the Court. The Colorado Bar Association cannot guarantee the accuracy or completeness of the summaries.

No. 06CA1228. People v. O’Shaughnessy. Prospective Jurors—Batson Challenge—Voir Dire—Discrimination—Affirmative Defense—Abandonment—Attempted First-Degree Murder—Attempted Aggravated Robbery—Merger—Consecutive Sentences.

Defendant Michael P. O’Shaughnessy appealed the judgment of conviction and consecutive sentences entered on jury verdicts finding him guilty of attempted first-degree murder with a deadly weapon, attempted aggravated robbery, second-degree assault, false imprisonment, reckless endangerment, and a violent crime sentence enhancer. The judgment was affirmed, the sentence was vacated in part, and the case was remanded for resentencing.

Defendant contended that the trial court erred in denying his Batson objection [Batson v. Kentucky, 476 U.S. 79 (1986)] when the prosecution struck three Hispanic members from the jury. Here, the prosecutor’s only reason for striking prospective juror T was based on her demeanor, stating she was rolling her eyes throughout voir dire and did not seem pleased to be there. Because nothing in the record contradicts the prosecutor’s statements about T’s demeanor, it was not clear error for the trial court to accept the prosecutor’s race-neutral explanation for the peremptory strike. The prosecutor struck juror S from the jury because she worked as a counselor and might be sympathetic to people on drugs. Although there were other nonminority counselors on the jury, the comparison did not indicate a pretext or a discriminatory intent by the prosecutor. Finally, the prosecution struck prospective juror M because he stated that he had a problem judging anyone. Batson does not require a showing by the prosecutor of actual bias on the part of a prospective juror. Therefore, the trial court did not err in denying defendant’s Batson objection as to prospective juror M.

Defendant also argued that the trial court should have instructed the jury on the affirmative defense of abandonment with regard to the crimes of attempted murder and attempted aggravated robbery. The abandonment defense may apply in the commission of an attempted crime. There is a point at which it is too late for the actor to withdraw from a criminal attempt. Here, the undisputed evidence showed that defendant ended his attack on the victim after stabbing her in the throat, leg, and hand, and asked her for money. Defendant therefore was not entitled to have the jury instructed on the defense of abandonment with respect to these charges.

Defendant further argued that his convictions for attempted first-degree murder and second-degree assault should merge, because they were both based on his use of a deadly weapon However, because each of these offenses requires proof of at least one element not contained in the other, the offenses do not merge.

Blog Editor's Note: The court actually said the following: People v. Bass, 155 P.3d 547, 554 (Colo. App. 2006). Section 18-1-408(3), C.R.S. 2009, mandates concurrent sentences for multiple offenses arising from the same conduct that are supported by identical evidence.  The court reversed consecutive sentencing on attempted murder, attempted aggravated robbery, and second degree assault, and remanded to the trial court for concurrent sentences.   The court of appeals found that identical evidence of a robbery at knifepoint with a stabbing, occurring within sixty seconds, was in sufficient to invoke consecutive sentencing.

Defendant argued and the People agreed that the trial court erred in imposing consecutive sentences. Because defendant’s convictions were based on identical evidence, the trial court erred in imposing consecutive sentences. Accordingly, the case was remanded to the trial court for resentencing of defendant to concurrent sentences.

No. 08CA1008. People v. Hoffman. Conditional Guilty Plea—Warrant—Probable Cause—Good Faith.

Defendant James T. Hoffman appealed the trial court’s order denying his motion to suppress evidence seized during the execution of a search warrant. The judgment entered on the plea was vacated, the trial court’s order was reversed, and the case was remanded for further proceedings.

Pursuant to a conditional plea agreement, defendant pled guilty to possession with intent to distribute a schedule II controlled substance, while preserving the right to appeal the suppression ruling. The first issue was whether conditional guilty pleas are permissible in Colorado and may be reviewed on appeal. The Colorado Supreme Court has not "explicitly endorsed" conditional pleading nor has it explicitly rejected the practice. Although there are conflicting decisions in the Court of Appeals, this division found (with a dissenting opinion) that conditional guilty pleas are permissible, and a review of defendant’s appeal on the merits was warranted.

Defendant argued that the trial court erred when it concluded that probable cause existed to issue the search warrant and, even absent probable cause, the officers acted in good faith in executing the warrant. A deputy of the Mesa County Sheriff’s Department obtained a warrant to search defendant’s trailer by submitting an affidavit presenting: (1) information he received from an unidentified informant; (2) the deputy’s observations of activity near defendant’s trailer on the night before the warrant was issued, but a month after the information was received; (3) an account of two arrests the deputy made after observing the activity near defendant’s trailer; and (4) some criminal history related to prior conduct of defendant.

The informant did not have access to reliable information about the alleged illegal activities, the police could not corroborate the criminal activities alleged by the informant, and the information was stale at the time the warrant was issued. Further, nothing the deputy observed corroborated any of the specific information supplied by the informant, and the deputy observed only non-criminal activity near defendant’s trailer. Although the deputy made two arrests for drugs and drug paraphernalia after traffic stops near defendant’s trailer, there was no direct link between the illegal drugs and defendant’s trailer. Finally, defendant’s criminal history either did not support the warrant or was stale at the time of the warrant. Thus, the information in the deputy’s affidavit, considered separately and as a whole, failed to establish a substantial basis for the magistrate’s determination that probable cause existed to issue the warrant. Additionally, the officer who conducted the search was the same officer who prepared the deficient affidavit. Therefore, the deputy either knew or should have known that the warrant he obtained based on his own affidavit was lacking in probable cause and that it was objectively unreasonable to rely on it.

No. 08CA2010. People v. Brown. Parole Condition—Search—Fourth Amendment—Privacy—Evidence—Possession—Voluntary Statement—Miranda.

Defendant Christopher A. Brown appealed the judgment of conviction entered on a jury verdict for illegally possessing drugs and drug paraphernalia while in possession of a deadly weapon. The district court’s judgment was affirmed.

Defendant’s brother, who some months earlier had been paroled from prison, consented to the search of his trailer. As a standard parole condition, the brother had consented to parole officers’ searching his residence and any premises he controlled. During that search, the officers found glass pipes containing methamphetamine residue and a .45 caliber semiautomatic handgun.

Defendant argued that the evidence seized should have been suppressed under the Fourth Amendment to the U.S. Constitution and Article II, § 7 of the Colorado Constitution. Defendant knew his brother was on parole, the residence could be searched at any time, the brother was required to have permission to live with others, and the brother did not have permission for defendant to live there. Further, defendant’s privacy expectations were greatly diminished because he was a convicted felon admittedly "on the run" after his probation was revoked. Defendant’s Fourth Amendment challenge, therefore, lacked standing.

Defendant contended that the trial evidence was insufficient to prove he possessed the gun found in a latched box inside a bedroom. However, defendant admitted during the search, "all that shit is mine," which the jury found also applied to the gun.

Defendant claimed his statement should have been excluded under Miranda v. Arizona, 384 U.S. 436 (1966). However, Miranda provides no basis for excluding statements that are volunteered without any interrogation. Because defendant’s statement was voluntary, his argument fails. The judgment of conviction therefore was affirmed.

No. 09CA1699. People in the Interest of K.M. Juvenile Delinquency—Restitution—Crime Victim Compensation Board.

The prosecution appeals the trial court’s order, entered in a juvenile delinquency proceeding against K.M., that denied the restitution sought by the Crime Victim Compensation Board (CVCB). It argues that the court lacked authority to request confidential documents necessary to calculate the amount of disbursements that the CVCB had made for victim expenses, which the court previously concluded were compensable. We affirm.

K.M. and D.D. were involved in an altercation at school that led to a delinquency petition being filed alleging that K.M. had committed acts that, if committed by an adult, would constitute second-degree assault and interference with staff, faculty, or students of an educational institution. K.M. pled guilty to a single count of harassment pursuant to a plea bargain. The original delinquency counts were dismissed and K.M. was sentenced to probation.

At the restitution hearing, in addition to other testimony, an employee of the district attorney’s office testified that the CVCB had made disbursements for D.D.’s medical expenses ($1,755.70) and for his mother’s lost wages ($2,630.53). Following argument, the court invited both parties to submit additional written pleadings. The prosecution filed a statement of authorities asserting that under CRS § 24-4.1-107.5(2), all materials submitted to the CVCB in connection with a reimbursement request are confidential and not subject to disclosure unless a court conducts an in camera review and concludes that the materials are necessary for the resolution of a pending issue.

The court refused to award restitution to the CVCB for payments it had made for D.D.’s hand injury, because it related to the first punch that was thrown by D.D. and therefore was not caused by K.M.’s initial push of D.D. It also concluded K.M. had used unreasonable force when he punched D.D. in the jaw and that he was responsible for the expenditures made by the CVCB.

The court ordered the prosecution to supplement the record by breaking down the medical costs incurred by the CVCB. Instead, the prosecution filed a "Response to Restitution Order," which reiterated the same arguments it had made at the hearing and averred that it did not have access to the CVCB’s records due to the above-cited confidentiality provisions. The court ruled "no order of restitution shall enter," because the prosecution declined to provide the information it ordered. The prosecution appealed.

The prosecution argued the trial court erred by applying principles of self-defense when establishing the amount of restitution and neglecting to make any findings regarding the expenditure for D.D.’s mother’s lost earnings. The Court of Appeals concluded it could not review these claims due to the prosecution’s failure to comply with the trial court’s order.

The only question the Court found it could resolve, based on the state of the record, was whether it was an abuse of discretion to refuse to order restitution. The Court held it was not, because to enter such an order would require the court to base the amount on pure speculation. The order was affirmed.