OADC Weekly Case Law Update

This podcast covers case summaries distributed on 3/26/2023.

Cases and Keywords with timestamps:

(01:09) People v. Maes, 2024 CO 15 (March 25, 2024); Magistrate's finding of probable cause after a preliminary hearing is a "final order or judgment" under the Colorado Rules for Magistrates and is, therefore, reviewable by a district court. The time for filing a petition for review runs from the time the magistrate memorializes that determination in writing.

(03:52) People in Interest of J.G., 2024 CO 16 (March 25, 2024); Search of a backpack on school grounds was reasonable under the test set forth in N.J. v. T.L.O. and suppression was not warranted.

Links:

People v. Maes, 2024 CO 15

https://files.constantcontact.com/45bb5db5401/da55a132-0fc9-41bc-afd1-2f27b5055a69.pdf?rdr=true

People in Interest of J. G. 2024 CO 16

https://files.constantcontact.com/45bb5db5401/a17313cc-50e8-4c87-9df9-afb5d1c16a47.pdf?rdr=true

System Variables in Eyewitness Identification Reliability

https://files.constantcontact.com/45bb5db5401/50804f91-e41c-431e-a805-7d3412de04d3.pdf?rdr=true

CLS Summary of offenses: https://leg.colorado.gov/publications/crime-classification-guide-2024

Commutation and Pardon Information

https://files.constantcontact.com/45bb5db5401/4ffb419a-ec2f-4e1c-bba9-a56ec0af3d99.pdf?rdr=true

Post Conviction DNA Testing Statute CLE: https://www.coloradoadc.org/livecourses/course/166

Contact Shawndell Irving here: Shawndell Irving

Music by Scott Holmes. Used under a Creative Commons license. Download today's music at: http://freemusicarchive.org/

NOTE regarding unpublished Colorado Court of Appeals opinions: Please remember the Court of Appeals Policy states that the citation of unpublished opinions in the Court of Appeals is forbidden, with limited exceptions. Copies of unpublished opinions are provided for private use and are not to be included in an electronic database or otherwise published. Also, please note that you are free to cite unpublished cases in the district court for whatever persuasive value the judge may give them. Patterson v. James, 2018 COA 173, ¶¶ 40-43. You may request unpublished cases from the COA at http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion_Request.cfm

This podcast covers case summaries distributed on 3/19/2023.

Cases and Keywords with timestamps:

(01:18) People v. Lopez, 2024COA26 (March 14, 2024); Expert testimony about coaching of child witnesses, Jury deliberation issues, Administering the oath to a child witness.

(08:52) People v. Hood, 2024COA27 (March 14, 2024); Error in excluding certain DNA evidence under the Rape Shield Statute.

(11:53) UNPUBLISHED People v. Rizo, 22CA0146 (March 14, 2024); No order of restitution at sentencing without good cause is an illegal sentence but must be corrected to order no restitution required.

(13:48) Pulsifer v. U.S., No 22 – 340 (March 15, 2024); Individualized sentencing versus federally mandated minimums under the 2018 First Step Act.

Links:

People v. Lopez, 2024COA26 (March 14, 2024): https://law.justia.com/cases/colorado/court-of-appeals/2024/19ca2313.html

People v. Hood, 2024COA27 (March 14, 2024): https://law.justia.com/cases/colorado/court-of-appeals/2024/19ca2313.html

Pulsifer v. U.S., No 22 – 340 (March 15, 2024): https://supreme.justia.com/cases/federal/us/601/22-340/

Contact Shawndell Irving here: Shawndell Irving

Music by Scott Holmes. Used under a Creative Commons license. Download today's music at: http://freemusicarchive.org/

NOTE regarding unpublished Colorado Court of Appeals opinions: Please remember the Court of Appeals Policy states that the citation of unpublished opinions in the Court of Appeals is forbidden, with limited exceptions. Copies of unpublished opinions are provided for private use and are not to be included in an electronic database or otherwise published. Also, please note that you are free to cite unpublished cases in the district court for whatever persuasive value the judge may give them. Patterson v. James, 2018 COA 173, ¶¶ 40-43. You may request unpublished cases from the COA at http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion_Request.cfm

This podcast covers case summaries distributed on 3/12/2023.

Cases and Keywords with timestamps:

(01:24) Godinez v. Williams, 2024 CO 14 (March 11, 2024); SOLSA (1) permits the parole board to consider maturity and (2) requires consideration of rehabilitation when deciding whether to release a juvenile convicted as an adult who is serving an indeterminate life sentence.

(04:33) UNPUBLISHED People v. Taylor, 22CA0016 (March 7, 2024); Trial court erred when ordering restitution for losses occurring outside the dates charged.

(07:31) UNPUBLISHED People v. Fergus-Jean, 22CA1068 (March 7, 2024); Trial court erred by allowing prosecutor to argue that defendant had a duty to retreat.

(12:24) People v. Carson, 2024 WL 647964 (Mich. Ct. App. Feb. 15, 2024); Search warrants for mobile devices must be carefully limited in scope. See also People v Coke, 461 P.3d 508, 516 (Colo 2020).

Links:

Godinez v. Williams, 2024 CO 14

https://files.constantcontact.com/45bb5db5401/ed0f8304-b2f5-4ff2-afef-24218d5261e7.pdf?rdr=true

People v Carson Mich Ct. App. 2.15.24

https://files.constantcontact.com/45bb5db5401/527ad7ae-719b-44ce-884b-9e545a53a3e1.docx?rdr=true

Daniel Loehr's amicus brief submitted in Ward and McDonald

https://files.constantcontact.com/45bb5db5401/f1df4b9c-ddd3-4604-91b3-6e17dbdd6c54.pdf?rdr=true

Briefs from Harness v. Watson https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/22-412.html

Jim Castle's letter to the Court

https://files.constantcontact.com/45bb5db5401/b3f9504f-6973-474a-a653-ae835b474dae.pdf?rdr=true

Objection to Reasonable Doubt Instruction

https://files.constantcontact.com/45bb5db5401/03e363ba-06fb-43d7-907c-a2662b114457.docx?rdr=true

Contact Shawndell Irving here: Shawndell Irving

Music by Scott Holmes. Used under a Creative Commons license. Download today's music at: http://freemusicarchive.org/

NOTE regarding unpublished Colorado Court of Appeals opinions: Please remember the Court of Appeals Policy states that the citation of unpublished opinions in the Court of Appeals is forbidden, with limited exceptions. Copies of unpublished opinions are provided for private use and are not to be included in an electronic database or otherwise published. Also, please note that you are free to cite unpublished cases in the district court for whatever persuasive value the judge may give them. Patterson v. James, 2018 COA 173, ¶¶ 40-43. You may request unpublished cases from the COA at http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion_Request.cfm

This podcast covers case summaries distributed on 3/5/2023.

Cases and Keywords with timestamps:

(01:16) People v. Kirby, 2024COA20 (February 29, 2024); Speedy Trial, Reckless manslaughter and careless driving resulting in death are lesser included offenses of reckless vehicular homicide, Sentencing issues.

(07:16) People v. Melendez, 2024COA21 (February 29, 2024); Margerum is not retroactive, IAC of trial counsel, Impartiality of jury.

Links:

People v. Kirby, 2024COA20

https://files.constantcontact.com/45bb5db5401/ac851ee8-f9d3-42d6-b13e-8b11bf4cb6cc.pdf?rdr=true

People v. Melendez, 2024COA21

https://files.constantcontact.com/45bb5db5401/817ff2f6-c0aa-476c-8f31-85caf29fc7ce.pdf?rdr=true

Hurlbert Complaint

https://files.constantcontact.com/45bb5db5401/65f10ba4-e92b-4381-b016-b9dfd92b0696.pdf?rdr=true

Weiner Complaint

https://files.constantcontact.com/45bb5db5401/14233024-e84a-452a-b475-f1d83cb28955.pdf?rdr=true

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Contact Shawndell Irving here: Shawndell Irving

Music by Scott Holmes. Used under a Creative Commons license. Download today's music at: http://freemusicarchive.org/

NOTE regarding unpublished Colorado Court of Appeals opinions: Please remember the Court of Appeals Policy states that the citation of unpublished opinions in the Court of Appeals is forbidden, with limited exceptions. Copies of unpublished opinions are provided for private use and are not to be included in an electronic database or otherwise published. Also, please note that you are free to cite unpublished cases in the district court for whatever persuasive value the judge may give them. Patterson v. James, 2018 COA 173, ¶¶ 40-43. You may request unpublished cases from the COA at http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion_Request.cfm

This podcast covers case summaries distributed on 2/27/2023.

Cases and Keywords with timestamps:

(01:50) McElrath v. Georgia No. 22-721 (February 21, 2024); NGRI is an acquittal under the Federal Double Jeopardy clause, even when inconsistent to another jury verdict.

(06:34) People v. Brassill, 2024COA19 (February 22, 2024); Prosecutors are responsible to follow the rules regarding restitution.

(13:08) UNPUBLISHED People v. Gurule, 22CA1630 (February 22, 2024); Trial court erred by prohibiting defendant from cross-examining the alleged victim on her probationary status as it affected her credibility.

(17:21) UNPUBLISHED People v. Nalwood, 21CA1103 (February 22, 2024); Government failed to prove that defendant knew she was driving under restraint so conviction for DUR was reversed.

(19:06) UNPUBLISHED Solano v. Vezzani, 22CA2080 (February 22, 2024); The DA in the third JD, Henry Solano, sued the Huerfano County Commissioners for "underfunding" his office.

(21:26) State v. Cole, No. 22-1581 (February 23, 2024) (Iowa Supreme Court); Conviction for child endangerment reversed because the government failed to provide sufficient evidence that defendant "knowingly acted in a manner that created a substantial risk to the children's physical, mental or emotional health."

Links:

McElrath v. Georgia 2024

https://files.constantcontact.com/45bb5db5401/9cdbfde7-e246-4029-be65-1113b05488a0.pdf?rdr=true

People v. Brassill, 2024COA19

https://files.constantcontact.com/45bb5db5401/b4d1b663-b47a-4f6d-b63a-eeadd770021e.pdf?rdr=true

State v. Cole, No. 22 1581 (February 23, 2024)

https://files.constantcontact.com/45bb5db5401/be9f3714-8ae8-42bc-87c2-f97192833484.pdf?rdr=true

Contact Shawndell Irving here: Shawndell Irving

Music by Scott Holmes. Used under a Creative Commons license. Download today's music at: http://freemusicarchive.org/

NOTE regarding unpublished Colorado Court of Appeals opinions: Please remember the Court of Appeals Policy states that the citation of unpublished opinions in the Court of Appeals is forbidden, with limited exceptions. Copies of unpublished opinions are provided for private use and are not to be included in an electronic database or otherwise published. Also, please note that you are free to cite unpublished cases in the district court for whatever persuasive value the judge may give them. Patterson v. James, 2018 COA 173, ¶¶ 40-43. You may request unpublished cases from the COA at http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion_Request.cfm

This podcast covers case summaries distributed on 2/20/2023.

Cases and Keywords with timestamps:

(02:10) People v. Owens, 2024 CO 10 (February 20, 2024); Batson challenges, Voir dire on racial issues, Evidence admitted under CRE 404(b) and CRE 401–403, Denial of mistrial motions, impeachment of witnesses, cumulative error.

(20:29) People v. Wade, 2024COA13 (February 15, 2024); Trial court's failure to sua sponte provide self-defense instruction was not error, Merger of convictions.

(24:36) UNPUBLISHED People v. Fresquez, 21CA1496 (February 8, 2024); Burglary charge premised on theory that defendant was born male and therefore had no license of entry to women's bathroom.

(29:34) UNPUBLISHED People v. Lucero, 20CA0709 (February 8, 2024); District court's final order of restitution without appeal filed timely makes any further order for restitution invalid.

(32:24) UNPUBLISHED People v. Shrader, 22CA1132 (February 8, 2021); Resentencing after comm corr revocation can include any sentence that could have been lawfully imposed at the time of sentencing.

Links:

Owens v. People, 2024 CO 10

https://files.constantcontact.com/45bb5db5401/d63381e1-df6c-48c6-ace6-7b16f51abf5c.pdf?rdr=true

People v. Wade, 2024COA13

https://files.constantcontact.com/45bb5db5401/bddbb07f-b600-4a91-926d-aa4ffe5e1454.pdf?rdr=true

Snow v. People PWC

https://files.constantcontact.com/45bb5db5401/967c3f2f-29ff-4995-b9c8-a4d62d142a54.pdf?rdr=true

Contact Shawndell Irving here: Shawndell Irving

Music by Scott Holmes. Used under a Creative Commons license. Download today's music at: http://freemusicarchive.org/

NOTE regarding unpublished Colorado Court of Appeals opinions: Please remember the Court of Appeals Policy states that the citation of unpublished opinions in the Court of Appeals is forbidden, with limited exceptions. Copies of unpublished opinions are provided for private use and are not to be included in an electronic database or otherwise published. Also, please note that you are free to cite unpublished cases in the district court for whatever persuasive value the judge may give them. Patterson v. James, 2018 COA 173, ¶¶ 40-43. You may request unpublished cases from the COA at http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion_Request.cfm

This podcast covers case summaries distributed on 2/13/2023.

Cases and Keywords with timestamps:

(01:40) People v. Torrez, 2024COA11 (February 8, 2024); Judge's failure to administer the empaneled jurors' oath, Merger of multiple convictions.

(07:54) UNPUBLISHED People v. Melendez, 20CA1677 (February 8, 2024); Summary data provided by CVCB is insufficient evidence when it fails to identify service providers without a specific finding that doing so poses a threat to the safety or welfare of the victim.

(10:10) UNPUBLISHED People v. Johnson, 21CA0298 (February 1, 2024); 404(b) evidence improperly admitted to refute claim of involuntary intoxication.

(15:04) Graham v. Hamden District Attorney, 493 Mass. 348 (January 23, 2024); The Massachusetts Supreme Court creates a global remedy to force a district attorney's office to fulfill its duty to investigate and disclose information after U. S. Department of Justice Report reveals systemic misconduct by the police department.

Links:

People v. Torrez, 2024COA11 (February 8, 2024)

https://files.constantcontact.com/45bb5db5401/64775dd1-7b81-4fb8-b013-c2402a03ec96.pdf?rdr=true

Graham v. Hamden District Attorney, 493 Mass. 348

Opinion

https://files.constantcontact.com/45bb5db5401/cb195afe-f085-4809-be71-a2d1243ba045.pdf?rdr=true

OB

https://files.constantcontact.com/45bb5db5401/64775dd1-7b81-4fb8-b013-c2402a03ec96.pdf?rdr=true

RB

https://files.constantcontact.com/45bb5db5401/0e80b3cb-8f70-40ff-adf7-bfb26584e3c9.docx?rdr=true

Amicus Briefs:

Mass. ACDL

https://files.constantcontact.com/45bb5db5401/c28b711b-ea2d-453d-80aa-6f76f0f8c096.docx?rdr=true

N.E. Innocence Project

https://files.constantcontact.com/45bb5db5401/9761fccb-76bf-4371-a2b7-ac07c345c2a0.docx?rdr=true

Pioneer Valley

https://files.constantcontact.com/45bb5db5401/52ed8416-9387-410c-8813-ae1cdc8bc635.docx?rdr=true

Institute of Justice

https://files.constantcontact.com/45bb5db5401/cd017729-f5fe-4df8-86a8-a2d19904c7b9.docx?rdr=true

Exoneration Project

https://files.constantcontact.com/45bb5db5401/bbfb85a8-32df-48b0-8100-ce732580da30.docx?rdr=true

Contact Shawndell Irving here: Shawndell Irving

Music by Scott Holmes. Used under a Creative Commons license. Download today's music at: http://freemusicarchive.org/

NOTE regarding unpublished Colorado Court of Appeals opinions: Please remember the Court of Appeals Policy states that the citation of unpublished opinions in the Court of Appeals is forbidden, with limited exceptions. Copies of unpublished opinions are provided for private use and are not to be included in an electronic database or otherwise published. Also, please note that you are free to cite unpublished cases in the district court for whatever persuasive value the judge may give them. Patterson v. James, 2018 COA 173, ¶¶ 40-43. You may request unpublished cases from the COA at http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion_Request.cfm

This podcast covers case summaries distributed on 2/7/2023.

Cases and Keywords with timestamps:

(01:23) Martinez v. People, 2024 CO 6 (February 5, 2024); Proximate cause of damage for purposes of restitution, Standard of review for sufficiency of the evidence challenges.

(12:52) UNPUBLISHED People v. Rogers, 20CA1843 (January 25, 2024) (prior opinion issued on October 5, 2023, withdrawn); Exclusion of hearsay testimony from defense investigator after witness was allowed to assert the Fifth Amendment to avoid testifying.

(19:52) UNPUBLISHED People v. Moore, 20CA2073 (February 1, 2024); Allowing officer to provide expert testimony under the guise of lay witness testimony.

(23:15) Hovet v. People, No. 23SC428, Court of Appeals Case No. 20CA920 (Cert. denied)

Links:

People v. Martinez

https://files.constantcontact.com/45bb5db5401/5a51edbb-ef41-496b-a4ab-6cfe9b2a9a13.pdf?rdr=true

Hovet PWC

https://files.constantcontact.com/45bb5db5401/c44e8c6f-a1bd-45c1-aace-a19ac7041272.pdf?rdr=true

Bert's Ted Talk recommendation:

https://www.youtube.com/watch?v=jUHE4-E3Mcg

Contact Shawndell Irving here: Shawndell Irving

Music by Scott Holmes. Used under a Creative Commons license. Download today's music at: http://freemusicarchive.org/

NOTE regarding unpublished Colorado Court of Appeals opinions: Please remember the Court of Appeals Policy states that the citation of unpublished opinions in the Court of Appeals is forbidden, with limited exceptions. Copies of unpublished opinions are provided for private use and are not to be included in an electronic database or otherwise published. Also, please note that you are free to cite unpublished cases in the district court for whatever persuasive value the judge may give them. Patterson v. James, 2018 COA 173, ¶¶ 40-43. You may request unpublished cases from the COA at http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion_Request.cfm

This podcast covers case summaries distributed on 1/30/2024.

Cases and Keywords with timestamps:

(02:16) People v. Porter, 2023SA299 (January 25, 2024); Prosecutor must certify in the Notice of Appeal that suppressed evidence was a substantial part of the proof of the charge pending against the defendant.

(03:16) People v. Roper, 2024COA9 (January 25, 2024); Court closure must be justified using the Waller factors.

(10:07) UNPUBLISHED People v. Delgado-Cruz, 22CA1874 (January 25, 2024); The district court lacks authority to impose restitution more than 91 days after the conviction is final, regardless of whether the judge or the prosecutor failed to comply with their statutory obligations.

(13:31) U.S. v. Swan, No.22-6132 (10th Cir. January 23, 2024); Plea counsel's mischaracterization of defendant's right to a jury selected by non-racially-motivated methods rendered the plea unknowing and involuntary.

(14:52) U.S. v. Kearn, No. 23-3029 (10th Cir. January 23, 2024); Trial counsel's 6-minute discussion with Mr. Kearn was inadequate to explain the complexities of the plea.

Links:

People v. Porter Order

https://files.constantcontact.com/45bb5db5401/5e55842e-56e2-46da-ad2e-eea796a6ccd9.pdf?rdr=true

People v. Porter answer brief

https://files.constantcontact.com/45bb5db5401/4eb9cb14-8f9f-4d7a-b89f-23e53cc32d95.pdf?rdr=true

People v. Roper, 2024COA9

https://files.constantcontact.com/45bb5db5401/8ecf2e81-b095-4b18-a127-f239b05852fc.pdf?rdr=true

U.S. v. Swan, No.22-6132

https://files.constantcontact.com/45bb5db5401/06a00e7d-e8de-42da-8f14-b011598629aa.pdf?rdr=true

U.S. v. Kearn, No. 23-3029

https://files.constantcontact.com/45bb5db5401/4245498b-b691-47fd-89da-855b6d956a34.pdf?rdr=true

Jan-Feb2024_Features-professional-conduct-and-legal-ethics

https://files.constantcontact.com/45bb5db5401/e365300c-2aa6-46fd-8a44-34fa29ebb0d9.pdf?rdr=true

Contact Shawndell Irving here: Shawndell Irving

Music by Scott Holmes. Used under a Creative Commons license. Download today's music at: http://freemusicarchive.org/

NOTE regarding unpublished Colorado Court of Appeals opinions: Please remember the Court of Appeals Policy states that the citation of unpublished opinions in the Court of Appeals is forbidden, with limited exceptions. Copies of unpublished opinions are provided for private use and are not to be included in an electronic database or otherwise published. Also, please note that you are free to cite unpublished cases in the district court for whatever persuasive value the judge may give them. Patterson v. James, 2018 COA 173, ¶¶ 40-43. You may request unpublished cases from the COA at http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion_Request.cfm

This podcast covers case summaries distributed on 1/24/2023.

Cases and Keywords with timestamps:

(01:30) People v. Smith, 2024 CO 3 (January 22, 2024); Pro Se postconviction petition issues can be abandoned without the client's consent by not affirmatively stating an intent to not abandon the claims.

(05:20) People v. Fregosi, 2024COA6 (January 18, 2024); Requiring defendant to pay restitution for the victim's future therapy after the conviction became final does not violate Weeks.

(14:32) People v. Mitchell, 2024COA7 (January 18, 2024); Race-based selective prosecution, The eleven statutory factors to consider when defendant moves to transfer the prosecution back to juvenile court, Exclusion of defendant's evidence that a codefendant previously robbed the victim.

Links:

People v. Smith, 2024 CO 3

https://files.constantcontact.com/45bb5db5401/10cbde54-a3be-482d-b456-56c0bd7a8ca0.pdf?rdr=true

People v. Fregosi, 2024COA6

https://files.constantcontact.com/45bb5db5401/6756e458-3567-4159-9214-886aac131f69.pdf?rdr=true

Motion to Publish in People v. Fregosi, 2024COA6

https://files.constantcontact.com/45bb5db5401/2d7a316d-11da-4d2c-ae5b-d06d9dca5207.pdf?rdr=true

People v. Mitchell 2024COA7

https://files.constantcontact.com/45bb5db5401/3edd20c5-bf06-45b9-a362-b8d431f3ae28.pdf?rdr=true

SOMB Policy re POs violating the Stds 2024-01-19

https://files.constantcontact.com/45bb5db5401/95584dd2-a677-44bb-951d-e3d1bd1f2619.pdf?rdr=true

Contact Shawndell Irving here: Shawndell Irving

Music by Scott Holmes. Used under a Creative Commons license. Download today's music at: http://freemusicarchive.org/

NOTE regarding unpublished Colorado Court of Appeals opinions: Please remember the Court of Appeals Policy states that the citation of unpublished opinions in the Court of Appeals is forbidden, with limited exceptions. Copies of unpublished opinions are provided for private use and are not to be included in an electronic database or otherwise published. Also, please note that you are free to cite unpublished cases in the district court for whatever persuasive value the judge may give them. Patterson v. James, 2018 COA 173, ¶¶ 40-43. You may request unpublished cases from the COA at http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion_Request.cfm