Thursday, August 30, 2012

Colorado Court of Appeals People v. Doubleday 08CA2433

Decision here.

   Admittedly, this one has limited relevance to cops (since most of us don't really deal with affirmative defenses and their impact on other charges).  But I still thought it was interesting, because it's a murder case and I remember when it was on the news.

   Doubleday robbed a convenience store, and during the robbery he shot and killed the clerk.  At the trial, he claimed the affirmative defense of duress, testifying that members of the Gallant Knights Insane had assaulted him and threatened to kill him and his family if he didn't do a robbery to pay off a drug debt.  A GKI member then drove him to the convenience store, where he accidentally shot the clerk during the robbery.

   He was arrested and charged with (among other things) attempted aggravated robbery and felony murder.  The felony murder statute essentially makes it first degree murder if someone dies (even accidentally) during the commission of a specific list of felonies (including robbery).  Duress is an affirmative defense which states that if someone commits a crime (other than a class one felony, such as first degree murder), but they do so because someone else is making violent threats that a reasonable person would be unable to resist, then they can't be convicted.

   Anyway, the jury bought the duress offense, and found Doubleday not guilty of the attempt robbery by virtue of the threats that the GKI had made.  Still, the jury found Doubleday guilty of murder, and he was sentenced to life.  He appealed, arguing that since he was not convicted of the underlying felony that allowed for felony murder, the murder conviction should also be reversed.

   The Court of Appeals pointed out that felony murder makes it a crime to accidentally kill someone while committing an underlying felony, without actually requiring that the suspect be convicted of that felony (or even charged with it).  Since the prosecution proved all the elements of the attempt robbery, and he was acquitted solely on the basis of an affirmative defense, the felony murder conviction stands.

Tuesday, August 28, 2012

Tenth Circuit Davis v. Workman 11-6022

Decision here.

   What would Jerry Springer say?

   Davis went out drinking, and when he came home his girlfriend and their daughter were missing.  He called his girlfriend's mother (Jody) a couple times and asked her to go find them.  She couldn't find them, so she came over to Davis' apartment and talked to him about his commitment to Stacey (Davis' girlfriend).  That led to an argument, and Davis made some comment about Jody's husband's affair, but apparently felt bad about the low blow because he tried to comfort her afterwards.  Then Davis and Jody had sex, and got into another argument.  This argument was apparently more serious, Jody cut Davis with a knife and he tried to strangle her and then stabbed repeatedly.  He wrapped her up in a sheet to keep her alive, but she died, so he went to sleep.  When he woke up, he panicked, stole her car, and fled.  Oh, he was still drunk so he crashed the car and wound in the hospital and under arrest for DUI.  Meanwhile, Stacey got home and found her dead mother, called the police, and the police put two and two together....

   So the police interrogated Davis at the hospital (after obtaining a Miranda waiver).  He made some incriminating statements, and he was eventually convicted of murder and sentenced to death.  He appealed.  The Oklahoma Criminal Court of Appeals affirmed his conviction, and the appeals eventually led to the Tenth Circuit reviewing the Oklahoma court's reasoning to decide whether or not he could proceed with further appeals. 

   Most of the issues reviewed aren't really important to cops (things like ineffective assistance of counsel, sufficiency of evidence for a conviction, and whether or not Stacey should have been allowed to testify).  The important stuff is all Miranda related.

   In order for a Miranda waiver to be valid, it must be made knowingly and voluntarily.  In other words, a suspect has to understand the nature of the rights being waived, and has to make a free and deliberate choice to waive the right (free from coercion, intimidation, or deception).

   Davis argued that because of the morphine he was on at the hospital during his first interrogation, he was incapable of understanding his rights.  But the evidence showed that he was having a pretty lucid back-and-forth discussion with the officers, so the Oklahoma court held that he was obviously capable of understanding.  The Tenth Circuit agreed.  During a follow-up interview, the police informed Davis that the evidence indicated he was the killer, and suggested that there were two logical conclusions.  Option A was that Davis was a cold-blooded killer, option B was he didn't mean to kill Jody but a fight broke out and it just happened.  Davis chose option B, but argued in court that the police were coercing him into confessing by calling him a cold-blooded killer.  The Oklahoma court found that the statement wasn't threatening or coercive, and the Tenth agreed again.  Finally, Davis argued that the police coerced him by denying him painkillers, but that argument was plainly refuted by the facts of the case and none of the courts were willing to listen to it.

   The rest of this decision is more important for prosecutors.  To sum of the important parts above: if a suspect seems lucid, that's an indicator of his ability to understand his rights.  Also, the interrogation tactic of presenting alternate theories of guilt (including one which is easier to admit to) is still something that the courts are okay with.

Thursday, August 9, 2012

Tenth Circuit Armijo v. Perales 11-2098

Decision here.

   Armijo was the Chief of Police in Columbus, NM.  He oversaw the purchase of six guns, four of which were purchased by the city and two of which were purchased by Armijo (for personal use or as gifts).  Apparently, there was some confusion over a bid sheet listing all six guns while the city's final purchase was only four of the six, but there was no question that the city paid for four guns and received four guns.

   Investigators with the local district attorney's office used this information to apply for a warrant to search Armijo's house (for drugs, financial records, and any stolen or altered guns), as well as a warrant for his arrest (for theft or embezzlement of two guns).  I don't know why they listed drugs and all that nonsense on the warrant, the affidavit didn't conatin any information to suggest that they would find any.

   Surprisingly, the warrants were issued.  They searched Armijo's house, where they found the two extra guns (they seized another gun, too, which wasn't apparently stolen or altered).  Then they arrested Armijo.  Charges were subsequently dismissed, and Armijo brought a §1983 suit against the investigators, arguing that the search and arrest violated his Fourth Amendment rights.  He also argued that the investigation had actually been a retaliation for a report he made about the mayor committing a battery.  The investigators moved to invoke qualified immunity, and the district court denied their motion.  The investigators appealed.

   The Tenth Circuit observed that there was nothing in the affidavits which even remotely resembled probable cause.  The phrase the court kept throwing around in this decision to describe probable cause was  "a substantial probability that a crime has been committed and that a specific individual committed the crime."  Also: "Probable cause is a common-sense standard that requires facts sufficient to warrant a man of reasonable caution in the belief that an offense has been or is being committed."  The best the affidavit could allege was "confusion," which is a far cry from "substantial probability."

   Given that the affidavit was so obviously flawed, the Tenth agreed with the district court that the warrants violated Armijo's Fourth Amendment rights.  Just as importantly, the court held that a reasonable officer would have known that the warrants violated Armijo's rights, because the information used to obtain the warrants was so clearly deficient.  And it's pretty clearly established that you can't apply for a warrant that doesn't even allege a crime, and use that to search for whatever random crap you think you might find and then arrest someone for whatever you can make up.  Accordingly, the Court affirmed the denial of qualified immunity.

   So there you go; even though applying for warrants is a pretty good shield against liability, it's not an absolute one.  In cases where you know (or really ought to know) that you don't have probable cause, getting a warrant doesn't make your actions any more legal.

Colorado Court of Appeals Long v. Department of Revenue 11CA1646

Decision here.

   A police officer saw Long speeding and weaving in & out of his lane.  He conducted a traffic stop, noticed that Long smelled like alcohol, administered FSTs (which Long did not complete satisfactorily), and arrested him for DUI.  After the officer explained Express Consent, Long chose to take a breath test.

   At the station, the breathalyzer was not functioning properly.  The officer conducting the test turned it off and on again, and it started to work.  At this point, Long refused to take the test because he believed that the breathalyzer was still malfunctioning.  He was served with a revocation of his license.  A DOR hearing officer upheld the revocation, and Long appealed.

   The Court of Appeals observed that the Express Consent statute gives a DUI suspect the opportunity to choose between a blood or breath test, but that if there are extraordinary circumstances (such as a malfunctioning breathalyzer) that would prevent the completion of the test, then the arresting officer can just inform the suspect of the circumstances and then require them to take the other type of test.  It's the cop's job to determine whether there are extraordinary circumstances, not the suspect's.

   In this case, the police had determined that the breathalyzer was properly functioning.  Whether they were right or not isn't material to the case, because Long refused to take the test (but if he had taken the test as required, then he could have challenged the validity in a later hearing).  Long also argued that weaving and driving in excess of the posted speed limit did not justify the traffic stop (the court ruled that these things do justify a stop, and also ruled that an officer's visual estimate of speed was enough to establish reasonable suspicion). 

Colorado Court of Appeals People v. Rhodus 09CA2634

Decision here.

   The reporting party in this case saw a female driving a silver Honda Prelude through her neighborhood.  After the car went around a corner, a man who was never identified walked up to the RP's car and tried to break into it.  The RP and her son yelled at him, and the suspect walked away.  Then the Prelude drove by again, and the police were called.  The RP found that her car door (which she had locked) was now open.

   Police found a silver Honda Prelude nearby.  Rhodus (the female driver) was the only occupant of the car.  When the police approached her, she drove away and led them on a high speed chase.  During the chase, she drove through yards, drove on the wrong side of the street, slammed on her brakes, and generally drove recklessly.  She lost the officers for a moment, but then they found the car.  It was parked, unoccupied, and running with no key (turns out it was stolen).  Rhodus was found nearby and detained.  The officer who had originally tried to contact her recognized her as the driver of the Prelude, and she was arrested.

   Rhodus was charged with First Degree Criminal Trespass for the RP's car (under a complicity theory that she had aided the unidentified male in committing that crime), Theft by Receiveing for the car she was driving, and Vehicular Eluding.  She was convicted as charged.  Rhodus appealed, arguing that the evidence was insufficient to support the charges.

   The Court held that as far as First Degree Criminal Trespass goes, she was right.  Although the door to the RP's car was opened, there was never any evidence presented that the unidentified male actually entered the car.  The Court held that as with burglary, "entry" is defined by the unlawful intrusion of any part of the body (or any instrument attached to the body) into the space within the car.  Just opening the door doesn't meet this standard, so the trespass conviction was reversed.

   The other two convictions were affirmed.  Rhodus argued that the Prelude she was driving was never identified in court as the one which was stolen.  Oddly, the prosecution never presented any evidence of VIN numbers or other vehicle identification, but the facts they did present were enough (including the timing of the theft of the Prelude and Rhodus' apprehension; and also Rhodus' conduct in driving without a key, fleeing from officers, attempting to conceal the Prelude, and abandoning it.  Rhodus' conduct was held to be sufficient to demonstrate that she knew the car was stolen and intended to permanently deprive the rightful owner of it).  She also argued that her driving wasn't risky enough to meet the elements of eluding because there was no other traffic or pedestrians, but the court didn't buy it.

Colorado Court of Appeals People v. Tunis 09CA0593

Decision here.

   This one isn't all that relevant to most of what the police do, but it's funny.  And I'll keep it short.

   Tunis was convicted of sexual assault on the basis of DNA evidence.  He appealed his conviction, arguing that the science behind this particular type of DNA evidence was unreliable.  He also argued that he had been denied a jury of his choice because the trial court had removed a juror who got caught sleeping and replaced that juror with an alternate.

   The court didn't humor this bullshit, and the conviction was affirmed.  I'm just shaking my head that the defense strategy on appeal was to argue that Tunis' fate should have been decided by someone who slept through the trial.

Colorado Court of Appeals People v. Childress 08CA2329

Decision here.

   Childress bought alcohol for a party where he and his 17 year old son got really drunk.  His three year old was there too.  After the party, he, his two kids, and his son's girlfriend drove from Lakewood to Aurora (Childress drove), and there was apparently some recklessness and minor accidents along the way.  When they got to Aurora, they found out that someone had pulled a gun at the party in Lakewood, so they decided to go back.  This time, Childress' older son drove, and there was more recklessness, and a much more serious accident (vehicle vs. building resulting in serious bodily injury).

   Childress was charged with DUI, vehicular assault, child abuse, and some other stuff.  He was convicted of most of it.  The DUI and vehicular assault charges were brought against him under a complicity theory. In defining complicity, 18-1-603 says:

A person is legally accountable as principal for the
behavior of another constituting a criminal offense if,
with the intent to promote or facilitate the commission of
the offense, he or she aids, abets, advises, or encourages
the other person in planning or committing the offense.

   Previously, the state supreme court has held that complicity requires a dual culpable mental state: it requires that the person charged under complicity have the same culpable mental state that is required in the statute for the crime being committed, and also that the person charged under complicity intend that is conduct promote or aid the person committing the crime.  Now, vehicular assault is a strict liability offense, meaning that there is no culpable mental state required.

   The Court of Appeals held that since vehicular assault (at least under the DUI section) is a strict liability offense, you can't charge someone with vehicular assault under complicity because there is no culpable mental state to prove.  (I don't really understand what the court is doing here.  I don't see anything in the statute that requires this, but their decision is based on a decision of the supreme court, so that's just the way it is).  Accordingly, Childress' vehicular assault conviction was vacated.

   There was apparently a problem with the jury instructions on child abuse, so the case was remanded for a new trial on those charges.  Childress' other convictions were affirmed.

Colorado Court of Appeals People v. Zweygardt 1-CA1714

Decision here.

   Zweygardt was speeding, ran a stop sign, and hit an SUV with a mother and her two children.  Mother and one child died, the other child suffered severe injuries.  Zweygardt was charged with various crimes including criminally negligent homicide, vehicular homicide, vehicular assault, and careless driving resulting in death.  His defense at trial amounted to "I didn't mean to run the sign, and I tried to stop."

   The jury convicted him of most of the charges, but acquitted him of a few random ones (for example: he was charged with two counts each of careless resulting in death and negligent homicide.  He was convicted of both counts of careless, but he was convicted of negligent homicide only as it applied to the mother and not as it applied to her dead child.  The jury deliberations on this one must have been very strange).  Zweygardt appealed his convictions, arguing that careless driving is a lesser included offense of vehicular assault.

   The Court of Appeals explained that a crime is a lesser included offense of another if 1- Proving all of the elements of the greater offense would also prove all of the elements of the lesser offense, 2- The lesser offense involves attempt or solicitation to commit the greater offense, or 3- The lesser offense is identical to the greater offense except that it doesn't require as severe a loss or injury.

   In this case, the elements of the various crimes don't match.  For one thing, they involve different definitions of vehicle (one can commit vehicular assault in a boat or a plane, but careless driving requires something designed for use on a roadway).  For another, one requires the operation of a vehicle, the other requires driving.  Apparently, those don't mean the same thing... someone who is driving a vehicle is also operating it, but you can operate a vehicle without also driving it (I'm not kidding).  The court didn't really explain how to operate without driving, but did specify that neither operating nor driving necessarily involves movement.

   The decision also contains some discussion of culpable mental states, and explains that even if it didn't make sense to convict Zweygardt of one count of negligent homicide but not the other, it doesn't matter as long as all of the convictions are consistent with each other.  Zweygardt's convictions were affirmed.