Case Summaries

The division modified its prior opinion. You may recall that the majority reversed Simms’ felony menacing conviction because the judge failed to correctly answer the jury’s question, “Can a fist be considered a bludgeon?” by explaining that a fist cannot be considered a bludgeon. In the modified opinion, the majority adds: “On remand, the prosecution may either accept the menacing conviction as a misdemeanor or pursue a new trial on the charge as a felony.”

The trial court reversibly erred by denying Garcia’s motion for a mistrial after the jury heard a highly prejudicial statement that was mistakenly not redacted from the video of Garcia’s interrogation.

Correctional officers testified as lay witnesses about the techniques they employed to force Phillips to undergo a noncompliant strip-search. The topics included matters for expert testimony, and the trial court erred by admitting their testimony under the guise of lay opinion. Because defense counsel did not object, reversal was not required under the plain error standard since the error was neither obvious nor substantial.

The trial court erred by allowing the officer to testify to what eluding means. The error, however, was harmless.

UNPUBLISHED People v. Barnes, 23CA0337 (June 25, 2026) The prosecution is not entitled to a jury instruction on provocation unless there is evidence that the defendant intentionally goaded the other person into attacking him so that he would have a pretext to injure or kill him. Said differently, it is not enough to show the defendant’s conduct caused the other person to attack. Instead, there must be evidence that it was the defendant’s purpose in engaging in the conduct to cause the other person to attack. As such, the trial court reversibly erred by providing the provocation instruction where the evidence showed Barnes’ act of attempting to steal the victim’s car caused the victim to attack Barnes, but there was no evidence that Barnes intended to goad the victim into attacking by attempting to steal his car.

Immigration law is complex and a trap for the unwary. Get help from a professional (not me) for your non-citizen clients. This is an example. Lau, as an LPR, should be considered admitted and therefore removable only if the government can establish that he was deportable. However, he left the U.S., and when he returned, the border officer declared he was “seeking admission” because there was a pending criminal matter. Thus, he could be removed as “inadmissible.” After he pleaded guilty, the conviction not only rendered him “inadmissible,” it substantiated the border officer’s decision (retroactively) to designate him as “seeking admission.”

In a child abuse resulting in death prosecution, the omission of proper jury instructions linking the abusive conduct to the death of the children was harmless error. Clearly motivated by the guilty S.O.B. rule, the majority finds that causation is irrelevant, and the words “resulted in” peppered throughout the instructions was close enough for government work. To get there, the majority simply needed to reimagine what the Court meant in People v. Dunaway back in 2004. Justice Gabriel dissented because he would stick with what the Court said in Dunaway and not infer findings for the jury.

After two years of proceedings, the DA finally produced a 911 call with exculpatory evidence six days before trial. The judge, sua sponte, declared that this was part of a pattern and practice of discovery violations in the jurisdiction, and dismissed the charges. The division reversed. A court must give a prosecutor an opportunity to oppose the imposition of sanctions premised on a finding that the district attorney’s office engaged in a pattern and practice of discovery violations.

The trial court erred by finding Trujillo was a “stranger” for purposes of the sexually violent predator designation where he and the victim had a brief personal relationship before the assault.

At the restitution hearing, the prosecution failed to satisfy its burden of proof with respect to the CVCB claims by relying on bare-bones summaries that were not introduced as evidence at the hearing and failed to establish that exposing the identity of the providers would pose some safety risk to the victims.

The DMV hearing officer erred by finding the presumption of inadmissibility for all evidence an officer fails to record on body worn camera under the Police Accountability Reform Act did not apply in civil proceedings like a DMV hearing.

On a first degree murder case, Judge White granted postconviction relief on two claims. Issue #1: The prosecution violated Jackson’s right to due process and to present a defense by moving to withdraw a co-defendant’s plea deal before he could testify as an exculpatory witness in Jackson’s trial. Issue #2: Counsel provided ineffective assistance by failing to impeach the inculpatory witness’s (Walker’s) statement and failing to introduce the exculpatory witness’s (Roberts’) prior testimony after he invoked his Fifth Amendment right and refused to testify.

The government engages in a “search” under Katz, when obtaining cellphone user’s Location History. The Google database warehousing cellphone user’s Location History data may be new technology unimaginable to the framers; however, the judiciary must guard against this type of unreasonable governmental intrusion into the lives of people. The Third Party doctrine does not remove this search from the protections of the Fourth Amendment because no one has a true choice about sharing Location History information with Google.

The Court denied cert on June 30, 2026. Justice Sotomayor concurred but wrote separately to encourage lower courts to carefully consider the language and import of their decision in Hunter v. United States, 608 U. S. ___ (2026), when deciding whether to enforce a collateral-review or appeal waiver against a defendant who is challenging the constitutionality of a conviction.

The majority creates a new rule of appellate procedure that tolls the time for the government to file a notice of appeal under C.A.R. 4(b)(6)(A) if the government files a timely motion for reconsideration in the district court. The special concurrence would not engage in such judicial gap-filling. Instead, they would allow the government to win by finding excusable neglect based on unclear precedent.

The execution of a Rule 41.1 order begins when an officer exerts the level of control that would transform a consensual encounter into a Terry stop seizure under the Fourth Amendment; that is, when a reasonable person wouldn’t feel free to leave. During the execution of a Rule 41.1 order, officials may not interrogate the suspect. People v. Harris, 762 P.2d 651 (Colo. 1988). If they do, they violate not only the rule, but also the Fourth Amendment strictures on which the rule is based. Here, the officers executed the Rule 41.1 order before beginning to interrogate Castro-Velasquez. As such, the trial court erred by refusing to suppress his statements as obtained in violation of the 4th Amendment and Rule 41.1.

Issue #1: The majority found that Manzo remains good law and that a person can be found guilty of Leaving the Scene of an Accident (SBI or Death) as an F(3) without the government establishing that the driver was aware that an accident occurred without violating due process. Justice Samour specially concurred. He believes Manzo should be overruled and that the Court should imply a knowingly mens rea for the offense of Leaving the Scene of an Accident to avoid it being declared facially unconstitutional. He did not dissent because he would also affirm the conviction since he would find the error was constitutionally harmless. Issue #2: Colorado’s prior habitual offender scheme is not facially unconstitutional because it required a judge rather than a jury to make findings of fact that increase a defendant’s sentence, and any error in Brown’s adjudication as a habitual offender was harmless beyond a reasonable doubt.

The Supreme Court finds evidence that the victim engaged in BDSM activity with the defendant was irrelevant to charges of assault and false imprisonment because the victim testified that they were not engaged in sexual role playing, and the defendant did not testify otherwise.

While this is a civil matter unlikely to concern your criminal law practice, there is a good discussion of “excusable neglect” that you might find helpful in litigating untimely 35(c)(2) claims.

Schmidt was charged with attempting to influence a public servant and forgery after handing a falsified document showing he completed 50 hours of UPS to the judge in a probation revocation proceeding. In the middle of trial, the COA announced in a separate appeal, that the probation revocation court never acquired jurisdiction over Schmidt because the probation complaint was filed after his term of probation ended. The trial court denied his motion for a mistrial and the jury convicted. Issue #1: There was sufficient evidence to affirm the conviction for attempting to influence a public servant even though the probation revocation court did not have jurisdiction and there was no “matter which is to be considered or performed by the public servant.” All I can say is weird facts cause awkward results. Issue #2: There was sufficient evidence to affirm the conviction for perjury as Schmidt clearly “filed” the document by handing it to the judge to be included in the court file. Issue #3: Because the offenses charged are “crimen falsi; i.e., a lie by the defendant is an element of the crime,” the trial court erred by refusing to allow his witnesses to testify about Moore’s character for truthfulness. The error required reversal under the constitutional harmless standard.

Issue #1: The majority found that the trial court did not err by instructing the jury using the 2022 model criminal jury instruction on reasonable doubt. Whereas Judge Taubman would find the trial court did err by using the 2022 reasonable doubt instruction. This is the same analysis as in People v. Casey Simms, 2026 COA 51. Issue #2: The evidence presented at trial was sufficient to prove that the victim was an “at-risk person” because a jury could reasonably believe the victim needed supplemental oxygen on the day she was assaulted.

per curium reversal of a grant of habeas relief by the Second Circuit. No clearly established federal law required the trial court to instruct the jury about the rule that Justice Kennedy adopted in Seibert in response to the juror’s question about whether a second statement was involuntary since it was made after a first statement that was obtained in violation of Miranda.

Cert denied, but Justice Sotomayor, joined by Justices Kagan and Jackson, dissented to explain the obvious injustice created by the Texas Court of Appeals’ (And now SCOTUS’s) decision to ignore a request made by the prosecution and the defense to remand for a merits analysis on Saldaño’s Atkins claim before executing him.

SCOTUS denied cert and Justice Alito, joined by Justice Thomas, dissented. I previously summarized the D.C. Court of Appeals opinion because the court found it was appropriate to consider the fact that Carter is a Black man when deciding whether Carter was seized for Fourth Amendment purposes when he complied with the officer’s command to “hike up your pants.” The lower court found that the officer’s request that Carter hike his pants was a seizure due to the “elevated effect” that the request “would have had on an objective and reasonable Black man in Mr. Carter’s shoes.” Justices Alito and Thomas hated this because our “Constitution is color-blind.” I bring this back to your attention to remind you of this argument and because the denial of cert makes the underlying opinion in Carter v. U.S., No. 23-0388 (Aug. 28, 2025) a little more persuasive.

A Hawaii law that prohibits firearms on private property without the express and affirmative consent of the property owner violates the Second Amendment. This is a 76-page monster with several opinions discussing the evolution of Second Amendment SCOTUS jurisprudence.