mt:Include module="Global Settings" /> September 2011 Archives: Colorado Criminal Lawyer Blog

September 2011 Archives

September 20, 2011

Colorado Court of Appeals Reverses Conviction - Breathes Life Into Colorado's Self Defense Laws

| Share


The failure of a Jefferson County District Court judge to properly instruct a jury on the Defendant, Albert Montoya's right of self defense - will probably lead to a completely new trial trial in the 2006 murder case.

Albert Montoya, in October of 2006 - fled a party in Wheatridge Colorado and fired back at a crowd of individuals chasing he and a friend from the location.

One of the bulletts fired by he and the codefendant struck and killed high school senior Mackenzie Kingry, four days before her 18th birthday.

The Colorado Court of Appleas ruled that the Jefferson County District Court judge who heard the case was required to properly instruct the jury on Colorado's law of elf defense. He should have told jurors to consider the number of people chasing the pair when they responded with gunfire, said the state court of appeals.

"There was some evidence that . . . at least one other guest had a gun which he fired as the defendant departed the house," wrote Judge Dennis Graham in an August decision that was amended Thursday.

"It was incumbent upon the trial court to give a self-defense instruction which embodied defendant's theory that he believed he was threatened by multiple assailants," Graham wrote.
Montoya was convicted of first-degree murder with extreme indifference, reckless manslaughter, criminally negligent homicide and accessory to a crime.

The appeals court left the last charge in place but reversed Montoya's convictions on all .

Judge Steve Bernard disagreed with part of the decision, saying the jury knew there was a crowd chasing Montoya and Duran and wasn't prohibited from taking the size of the crowd into consideration.

"This instruction properly set forth the general principle that the jury was required to evaluate the totality of the circumstances," Bernard wrote. ". . . The jury was informed that defendant's self-defense theory involved multiple assailants."

]The Denver Post was the source of this blog entry.

H. Michael's Take

To sqaure the law in this area with these facts -- it is important to read the actual jury instruction on self defense in Colorado - I have included it here as it is read to the jury in a trial where self defense is asserted as an affirmative defense:

H:18 USE OF PHYSICAL FORCE-DEADLY PHYSICAL FORCE (IMMINENT DANGER OF DEATH OR SERIOS BODILY INJURY BY VICTIM)

It is an affirmative defense to the crime of (Insert name of crime) that the defendant used deadly physical force:

1. in order to defend [himself] [or] [a third person] from what he reasonably believed to be the use or imminent use of unlawful physical force by the other person,

2. he used a degree of force which he reasonably believed to be necessary for that purpose, and

3. he/she reasonably believed a lesser degree of force was inadequate, and

4. had reasonable grounds to believe, and did believe, that he or another person was in imminent danger of being killed or of receiving great bodily injury.

[The defendant is not required to retreat in order to claim the right to employ force in his/her defense.]

[The defendant is not justified in using physical force if:

1. with intent to cause bodily injury or death to another person,

2. he/she provoked the use of unlawful physical force by that person.]

[The defendant is not justified in using physical force if he/she is the initial aggressor, except that his/her use of physical force under the circumstances is justifiable
if:
1. he/she withdraws from the encounter, and

2. effectively communicates to the other person his/her intent to withdraw, and

3. the other person continues or threatens the use of unlawful physical force.]

[The defendant is not justified in using physical force if:

1. the physical force involved is the product of combat by agreement, and

2. the combat is not specifically authorized by law.]

In addition to proving all of the elements of the crime charged beyond a reasonable doubt, the prosecution also has the burden to disprove the affirmative defense
beyond a reasonable doubt.

After considering the evidence concerning the affirmative defense, with all the other evidence in this case, if you are not convinced beyond a reasonable doubt of
the defendant's guilt, you must return a verdict of not guilty.

Posted by H. Michael Steinberg | | Email This Post

September 4, 2011

New Colorado Law Makes It Easier for Early Termination From Colorado Community Corrections Programs

| Share


Colorado Community Corrections - 2011 Changes Make It Easier to Get Credit for Time Served for Residential and Non- Residential Time - Early Termination

A New Law in Colorado creates criteria for when a person sentenced to a community corrections sentence may be considered for early termination of his or her sentence.

When the person meets the criteria, his or her probation officer must submit a petition for early termination to the court and notify the district attorney and defendant. The court then decides the petition based on the statutory criteria.

This bill requires that an individual sentenced directly to a community corrections program
be eligible for a deduction of up to 10 days per month from his or her sentence. The current law allows such deductions, but does not require eligibility.

Criteria are set for when an individual sentenced to a community corrections program may
be considered for early termination of his or her sentence.

The individual must successfully complete the residential phase of community corrections, pay the costs of the residential program in full, and be supervised at a low level.

The probation officer of an individual who meets the eligibility requirement for early sentence termination is required to submit a petition to the court with notice to the district attorney, the defendant, and the victim, where appropriate.

The court may consider a number of factors when deciding whether to grant a petition for
early termination of a sentence, including the following:

• risk of recidivism;

• victim input, if any;

• compliance with the terms and conditions of the original sentence;

• completion of any court- or community-corrections-ordered treatment programs; and

• any other relevant factors.

Here are the relevant new Colorado Laws as of 2011 - the NEW LANGUAGE IS IN CAPITAL LETTERS

Continue reading "New Colorado Law Makes It Easier for Early Termination From Colorado Community Corrections Programs" »

Posted by H. Michael Steinberg | | Email This Post

September 4, 2011

2011 New Law Modifies and Expands Reach of Conditions of Mandatory Restraining Orders in Colorado Criminal Cases - 18-1-1001 CRS

| Share


A New Law Signed by the Colorado Governor in June of this year -- mandates certain conditions of bond be expanded to cover a number of new crimes. Previously, these conditions of bond were applied primarily in Colorado Domestic Violation Cases -- the New Law expands the use of these conditions to the crimes listed below.. It is worth noting the importance of this new law as greatly increasing the costs of and difficulty in complying with a pending - UNPROVEN - Colorado criminal case.

Here is a Summary of the new Law / Legislation

The bill expands to all crimes subject to the Victims' Rights Act the courts' discretion to add
the following restrictions, currently only available in domestic violence cases, to mandatory
protection orders issued to defendants at the time of arraignment or first court appearance:

• to stay away from the victim's home and other locations where the victim may be found;
• to not have contact or direct or indirect communication with the victim;
• to not possess or control firearms or other weapons;
• to not possess or consume alcohol or controlled substances; and
• other orders deemed appropriate to protect the victim's safety.

Under current law, a mandatory protection order is issued by the court in a criminal
proceeding. The order restrains a person from harassing, molesting, intimidating, retaliating against, or tampering with the defendant or any witness to the acts charged. The order stays in effect until the defendant is acquitted or until the defendant is convicted and completes his or her sentence.

Under existing law, a court may issue a protective order in domestic violence cases that restrict the defendant from being present at particular locations or contacting the victim. House Bill 11-1267 expands this to sexual assaults and other crimes that are subject to the Victims' Rights Act.


Crimes Covered by the Colorado Victims' Rights Act

Murder in the 1st and 2nddegree
Sexual assault by one in a position of trust
Careless driving
Manslaughter
Sexual assault on a client by a psychotherapist
Stalking
Criminally negligent homicide
Robbery
Failure to stop at the scene of an accident
Vehicular homicide
Aggravated robbery
Any criminal attempt, any conspiracy, any criminal solicitation, and any accessory to crime
Assault in the 1st, 2nd, and 3rd degree
Aggravated robbery of controlled substances
Retaliation against a witness or victim
Vehicular assault
Incest
Intimidation of a witness or victim
Menacing
Aggravated incest
Aggravated intimidation of a witness or victim
Kidnaping in the 1st and 2nd degree
Child abuse Tampering with a witness or victim
Sexual assault
Sexual exploitation of children
Indecent exposure
Sexual assault in the 1st, 2nd, and 3rd degree
Crimes against at-risk adults or at-risk juveniles
Violation of a protection order against a person charged with certain sex crimes (4 classes)
Unlawful sexual contact Domestic violence (3 classes)
Sexual assault on a child
Bias-motivated crimes

A violation of a mandatory protection order of the type covered by the bill is a class 1
misdemeanor, the fine for which ranges from $500 to $5,000.

Although the court already exercises broad authority when ordering defendants to refrain from certain activities, expanding the restrictions that can be added to include all victims' rights crimes will increase the number of mandatory protective orders issued.


18-1-1001. Protection order against defendant.

(The changes TO THE SECTION - 3 -are CAPITALIZED)

(3) Nothing in this section shall preclude the defendant from applying to the court at any
time for modification or dismissal of the protection order issued pursuant to this section or the district attorney from applying to the court at any time for further orders, additional provisions under the protection order, or modification or dismissal of the same.

The trial court shall retain jurisdiction to enforce, modify, or dismiss the protection order until final disposition of the action. Upon motion of the district attorney or on the court's OWN motion to protect FOR THE PROTECTION OF the alleged victim OR WITNESS, the court may, in cases involving domestic violence as defined in section 18-6-800.3 (1) AND CASES INVOLVING CRIMES LISTED IN SECTION 24-4.1-302, C.R.S., EXCEPT THOSE LISTED IN PARAGRAPHS (cc.5) AND (cc.6) OF SUBSECTION (1) OF THAT SECTION, enter any of the following further orders against the defendant:

(a) An order to vacate or stay away from the home of the ALLEGED victim OR WITNESS and to stay away from any other location where the victim OR WITNESS is likely to be found;

(b) An order to refrain from contact or direct or indirect communication with the ALLEGED victim OR WITNESS;

(e) Any other order the court deems appropriate to protect the safety of the alleged victim OR WITNESS

Posted by H. Michael Steinberg | | Email This Post

September 4, 2011

New 2011 Law Prevents DA From Using a Class 6 Felony As A Predicate Offense for Colorado's Habitual Offender Act

| Share


Here is the Summary of a New Law That Prevents DA From Using a Class 6 Felony As A Predicate Offense for Colorado's Habitual Offender Act

This law removes the option of sentencing an individual convicted of the class 6 felony of
unlawful possession of a controlled substance as a habitual offender.

The Law became effective on August 11, 2010.

Background.

Colorado's Habitual Offender Law requires the court to sentence an individual with
three prior felony convictions to incarceration for a period that is four times the maximum sentence for the current felony conviction.

The average length of stay for a class 6 felony is 12.2 months, but for a class 6 felony with a habitual offender enhancement, the average stay is 60 months.

This Law will prevent the abuse of the Habitual Offender Law for such minor crimes as Drug Possession Felony Class 6 Felonies.

It is a good idea and is welcomed by the Colorado Criminal Defense Bar.

Posted by H. Michael Steinberg | | Email This Post

September 3, 2011

New 2011 State Law Increases Pre-sentence Investigative Report Requirements Before a Judge Passes a Colorado Sentence

| Share


With an Effective Date of August 10, 2011 this new law will require probation officers across the state to provide additional information to sentencing judges before these judges make sentencing decisions.

Summary of The New Law

This new law expands the existing statutory requirements for presentence investigation reports (PSIRs) that are completed by probation departments.

The PSIR report must, as a result of this new law, include the following sections:

• an assessment of the offender's criminological risks and needs;

• an analysis, based on previously mentioned risk-needs assessment, of which sentencing option is most likely to reduce recidivism by the offender;

• sufficient data to allow the court to determine: whether the offender is suitable for one or more containment options that do not entail incarceration; and the form and appropriate conditions of probation, if appropriate;
and

• a description of the rates of recidivism and projected costs, if known, associated with each sentencing option available to the court.

The present state of the law includes four specified purposes of sentencing.

This new law adds MUCH NEEDED additional purposes, which will assist the Colorado sentencing judge to select a sentence alternative, a sentence length, and a level of supervision that addresses the offender's individual characteristics and reduces potential recidivism by that offender.

The sentencing court is required, before sentencing an offender to a period of incarceration, to review the purposes of sentencing and determine which sentencing option will best achieve such purposes.


H. Michael's Take

While this determination is not required to be a part of the court record, nor is it to be used as the basis for challenging any sentence issued by the court, it will assist criminal defense lawyers and formulating arguments to persuade judges NOT TO INCARCERATE individuals if there are other - more humanistic and compassionate - alternatives.

The goal of the process is to provide the court with all available relevant information so the court can determine the best sentencing option for the defendant. The PSIR currently includes a risk-needs assessment and a list of conditions under which a defendant can be safely managed in the community should the court choose to sentence the defendant to probation.

Here is the new section:

16-11-102. PRESENTENCE OR PROBATION INVESTIGATION.

(1.9) EACH PRESENTENCE REPORT SHALL ALSO:

(a) INCLUDE THE RESULTS OF AN ACTUARIAL ASSESSMENT OF THE
OFFENDER'S CRIMINOLOGICAL RISKS AND NEEDS;

(b) PROVIDE SUFFICIENT INFORMATION TO ALLOW THE COURT TO
CONSIDER:

(I) WHETHER THE OFFENDER IS A SUITABLE CANDIDATE FOR A
SENTENCING OPTION THAT DOES NOT INVOLVE INCARCERATION OR A
COMBINATION OF SENTENCING OPTIONS THAT DOES NOT INVOLVE
INCARCERATION; AND

(II) THE APPROPRIATE CONDITIONS TO IMPOSE IF A DEFENDANT IS
SENTENCED TO PROBATION;

(c) DESCRIBE THE PROJECTED COSTS, IF KNOWN, THAT ARE
ASSOCIATED WITH EACH SENTENCING OPTION THAT IS AVAILABLE TO THE
COURT; AND

(d) SET FORTH THE PURPOSES OF TITLE 18, C.R.S., WITH RESPECT TO
SENTENCING, AS SUCH PURPOSES ARE DESCRIBED IN SECTION 18-1-102.5,
C.R.S.

Posted by H. Michael Steinberg | | Email This Post

September 3, 2011

2011 Colorado Law Increases Penalty for Tagging, Graffiti, Criminal Mischief, and Defacing Property

| Share


A new law allows the police to "group" smaller instances of "tagging" together to reachhigher penalties Here is the law:

Summary of Legislation

The 2011 bill changes the manner in which multiple offenses for defacing property and causing more than $500 in damage may be treated. Specifically, it allows damages from two or more offenses committed within six months to be aggregated and charged as a single class 1 misdemeanor.

Offenses charged in this manner continue to be subject to a mandatory minimum of fine of $750 upon conviction.

The law also grants the court discretion to impose alternatives in sentencing, including restorative justice, and to suspend all or part of the fine for successful completion of the alternative sentence.

Posted by H. Michael Steinberg | | Email This Post

September 3, 2011

2011 Colorado Law Requires New Bail Conditions on Third or More DUI

| Share


A new law effective in 2011 - mandates that judges now order certain conditions of releasing an individual on bond on a third case of DUI - DWAI.

Here is the New Legislation:

Summary of Legislation

The bill requires that a court set specific bond conditions when an individual is arrested for
an alcohol or drug driving offense (e.g., DUI or DWAI) after two prior convictions for an alcohol or drug driving offense.

The defendant's bail bond must include conditions requiring:

• enrollment in a substance abuse treatment program;

• electronic monitoring;

• drug and alcohol testing; and

• an engine interlock device on the defendant's vehicle, if authorized to drive.

However - it should ne NOTED that:

A defendant may move the court for relief from any of these conditions.

Following a hearing on the motion the court may deny or grant the motion based on the interest of justice and the potential endangerment of public safety.

If the court grants a motion, written findings must support the grant of relief.

Posted by H. Michael Steinberg | | Email This Post

September 3, 2011

Well Known Colorado Judge Conducts a Study - Public Defender or Private Lawyer - Is There Really a Difference?

| Share


What follows is an article that appeared some years ago in the NY Times. ( 2007)'

Researched and written by a well known and well respected Denver District Court Judge - Morris Hoffman - the article concludes that retaining a private lawyer may be worth the money.

While it is long - I will let you decide:

SIXTEEN years as a state trial judge have left me with a deep respect for the professionalism and competence of the public defenders who handle felony cases for indigent criminal defendants in my courtroom. In fact, I've told friends, only half-jokingly, that if they are ever charged with a serious criminal offense, the first thing they should do is give all their assets to charity, in an effort to qualify for public defender representation.

So when two economists from Emory University, Paul Rubin and Joanna Shepherd, agreed last year to collaborate with me on an econometric study of how effective public defenders really are, I had to guard against confirmation bias. I was positive that public defenders would prove more effective than their private counterparts. Mr. Rubin and Ms. Shepherd, with their occupational faith in markets, were equally positive of just the opposite. In the end, the economists were right, though with an interesting twist. (The full study has been published in the Ohio State Journal of Criminal Law.)

We looked at all 5,224 felony criminal cases filed in Denver in 2002. Most other studies measure lawyer effectiveness through indicators like acquittal rates, but we used the one thing criminal defendants care about most: the amount of jail or prison time they receive. Thus, acquittals counted as zero. Probationary sentences likewise counted as zero, unless the probation was combined with some jail time.

We counted halfway-house sentences as 120 days, which is typical for Denver defendants. We counted the initial length of a prison sentence without decreasing it for early release or increasing it for parole violations. Life sentences we arbitrarily counted as 110 years.

My economist friends were able to use regression analyses to control for other variables (such as whether a case was plea bargained or went to trial), to minimize the chance that the differences we found were caused by factors other than effectiveness. They also used regressions with different combinations of variables, to ensure that our results were not sensitive to a particular variable.

The results were surprising. The average sentence for clients of public defenders was almost three years longer than the average for clients of private lawyers.

But our most notable finding was hidden in one of the variables we had controlled -- the seriousness of the case. We had assumed that public defenders on average handled more serious cases than private lawyers, if for no other reason than that such cases carry higher bonds, and defendants who can't make those bonds are often rendered indigent by their pretrial incarceration. The length of their clients' sentences would of course be distorted by the fact that they handle more serious cases with longer potential sentences.

But when we removed the control for the seriousness of the crime, public defenders performed relatively worse, not better (five years more incarceration versus three years more).

When we examined the seriousness of the cases handled by each type of lawyer, we discovered not only that private lawyers tend to handle more serious cases, but also that as the seriousness of the case increases, the chances that a private lawyer is handling it also increases. What in the world could explain such a result?

It turns out that the explanation, at least in part, is one that should put a smile on the face of all free-marketers and rational choice theorists: criminal defendants, just like any other consumers of services, appear to be making choices based on their rational assessments of costs and benefits. But, you might ask, do criminal defendants ever really have a choice between public defenders and private counsel? It appears many do.

Our data suggested that, contrary to the law's rather binary notion of indigency, a large chunk of felony criminal defendants are what we have called "marginally indigent." They could, if they had to, tap hidden resources, or the resources of family and friends, to retain private lawyers. But what drives that decision? Just what you'd expect from any rational consumer of criminal defense services: a combination of the seriousness of the offense and the likelihood of conviction.

Imagine a guilty, marginally indigent defendant facing a relatively minor felony (for which he will most likely get probation). Now add to the mix the fact that his crime was captured on videotape, meaning he has a small chance of avoiding conviction. It is unlikely such a defendant would deplete his and his family's and friends' resources to hire a private lawyer when he could get a free public defender to achieve the same result.

At the other end of the spectrum, imagine a marginally indigent defendant charged with first degree murder, and imagine that he is innocent. Wouldn't that defendant do everything in his power to marshal the resources to hire a private lawyer, if he believed, rightly or wrongly, that the private lawyer were more likely to achieve an acquittal?

In other words, marginally indigent defendants who choose public defenders tend to be guilty. And of course if that's true, it's not at all surprising that public defenders would achieve less favorable outcomes.

More work needs to be done to confirm these results. But if they hold, and hold nationally, they could have important policy implications. Roughly one-third of all states have formal statewide public defender systems, and several others have regional or local systems. Current debates about improving these systems tend to revolve around two poles: increased financing (for which public defenders have been clamoring since the 1980s, when per client spending in most systems, in real dollars, took a nose dive from which it has never recovered) and, more recently, privatization.

If it is true that public defenders achieve substantially worse results for their clients than private lawyers, that fact should be troubling to us all, quite apart from whether the difference is the product of underfinancing, government inefficiencies or both.

But our results suggest a more benign explanation, and a less drastic solution than spending more on public defenders or privatizing the system. If self-selection by guilty, marginally indigent defendants is driving a big part of this effectiveness difference, the remedy may simply be to tighten the mechanisms we use to determine indigency. This solution would not only reduce the outcome differences between public defenders and private defense lawyers, but it would also give taxpayers more bang for their public defender buck.

Morris B. Hoffman is a Colorado state trial judge and a fellow at the Gruter Institute for Law and Behavioral Research.

Posted by H. Michael Steinberg | | Email This Post

« August 2011 | Main Index | Archives | October 2011 »