Case Summaries

This is a really important opinion that you do not want to miss. Issue #1: The postconviction court erred by denying Page’s petition for postconviction DNA testing without a hearing because Page’s petition sufficiently alleged that there is “a reasonable probability that he would not have been convicted if favorable results had been obtained through DNA testing at the time of the original prosecution.” Issue #2: “Biological Evidence” for section 18-1-413(1)(b), is evidence that contains a testable quantity of DNA. Issue #3: The division refused the government’s invitation to apply “laches” as a means to avoid justice.

A jury doesn’t need to see a video to determine that it is “obscene” material for purposes of a conviction for promotion of obscenity to a minor.

Issue #1: The district court did not err when denying Jargowsky’s motions to suppress the records obtained through search warrants issued to business and financial institutions outside of El Paso County. Issue #2 Jargowsky argued that the trial court erred by admitting three categories of evidence. The division disagreed or found any purported error was harmless. Issue #3: Even if the district court erred by allowing two witnesses — a senior manager for Walmart and a retail crime investigator for Home Depot — to provide expert testimony about retail theft without being endorsed as experts, the error was harmless. Issue #4: There could be no confrontation clause violation for evidence offered to show the “effect on the listener” (state of mind), since it was not offered for the truth of the matter asserted. Issue #5: The trial court did not err by rejecting Jargowsky’s proposed affirmative defense instructions on mistake of fact and mistake of law.

In a sex assault on a child prosecution, the prosecution’s expert’s testimony that a child’s statements are more likely to be truthful if the child promises to be truthful before beginning the interview improperly bolstered the child-victim’s credibility.

Accusations that Arapahoe County Judge Whitfield is a bench bully did not win the day for Bonsell, but could be a winning issue in the future if this is a pattern of behavior.

The Tenth Circuit reversed the the district court’s opinion which I talked about at great length in my June 13, 2025, case summaries email. U.S. v. Sigala-Baray, 25CR00011 2025 WL 1635266 (D. Ct. Colo. 6.9.2025). Bad News - Issue #1: The frisk was justified because the officer had probable cause to arrest Sigala-Baray for driving without insurance. Good News - Issue #2: The district court found that Taylor did not have objectively reasonable suspicion that Sigala-Baray was armed and dangerous, and, therefore, the frisk could not be justified in the absence of probable cause to arrest. The government did not challenge this decision, so the Tenth Circuit did not address it. This means it is still a valid analysis that could prove helpful to your clients.

The court did not abuse its discretion when it decided that the sheriff’s office’s records were within the prosecution’s constructive possession and that the sheriff’s office violated both Rule 16 and section 16-2.5-502 when it did not notify the prosecution of the records’ existence. The officers at issue are were Dallas Janecek and Karin Carroll of the Adams County Sheriff’s Office. The law, however, applies to all law enforcement agencies that “assisted with the case.” Solano v. Newman, 2024 COA 93M, ¶ 44 (“[C]ase law has consistently held that the prosecutor is in constructive custody or possession of information held by law enforcement officials who assisted with the case.”).

The preliminary hearing court did not abuse its discretion when it dismissed the second-degree burglary charge against Townsend because the prosecution failed to present evidence on a critical element — that Townsend had actual knowledge that he was not permitted to enter J.R.’s house at the time he entered.

The trial court reversibly erred by refusing to instruct the jury that deadly physical force may have been justified if the alleged victim was committing or reasonably appeared to be about to commit assault, robbery, or both.

Issue #1: The division found that the trial court reversibly erred by refusing to instruct the jury on the mitigating factor of heat of passion. Issue #2: The trial court also erred by refusing to instruct the jurors that, pursuant to 18-1-704(2)(c), Swainson’s use of deadly force was justified if he reasonably believed that one or more of his assailants was about to commit (at least) second-degree assault. Issue #3: The trial court did not err by refusing to instruct the jury on the ordinary (non-deadly) use of force as self-defense because Swainson’s act of wildly swinging a pocketknife in a manner that caused one person’s death constituted deadly force.

As the AG conceded, the postconviction court erred by denying the defense reasonable time to obtain the transcripts of the plea and sentencing hearing. Although the statute of limitations would likely bar relief on the merits, and the transcripts were unlikely to establish justifiable excuse or excusable neglect, due process requires that defendants have “an adequate opportunity to present their claims fairly.” People v. Bell, 2026 CO 28.

The trial court committed plain reversible error by failing to instruct the jury that the government had the burden to disprove imperfect self-defense beyond a reasonable doubt.

This opinion is remarkable for two distinct reasons. First, it creates a due process cause of action under the Hawaii Constitution for situations where materially false evidence contributes to a conviction – regardless of whether the prosecution knew or should have known that the evidence was false. This provides a doctrinal framework for an emerging category of post-conviction claims: convictions built on forensic evidence that science later discredits. Second, the language used by the majority attacking SCOTUS to explain why they relied on the Hawaii state constitution and not Federal jurisprudence is quite shocking. (Righteous IM (not so) HO, but shocking). This opinion is a must read for anyone litigating a prior conviction based on what we now know is junk science.

The Supreme Court issued an order to show cause why the trial court did not err in granting the defendant’s motion to dismiss for outrageous government conduct.

This 99-page, three-opinion monster concerns a significant issue of first impression: Whether the police need probable cause and a warrant to search DNA that is on a soda can they retrieve from a person’s trash. The majority says no. Judge Schutz, in his dissent, tells the government to “get a warrant.” We will see what the Supreme Court does with this. There are also two “lesser” issues concerning CRE 404(b) evidence and prosecutorial misconduct that were rejected.

Schlitt went bow hunting and killed a bear. He was later convicted of numerous offenses related to how he handled the carcass. Issue #1: Schlitt’s waste conviction must be merged with his conviction for illegal possession. Issue #2: There was sufficient evidence to support the willful destruction charge. Issue #3: There was no constructive amendment or fatal variance in the jury instructions for the willful destruction charge. Issue #4: There was no reversible prosecutorial misconduct in voir dire or closing argument.

Interesting issue about “spillover” that led to thoughts on the due process problem from submitting multiplicitous charges to the jury. Food for thought where the government proceeds to trial on “too many counts.”

The Enhance Law Enforcement Integrity Act does not allow a law enforcement agency to condition its mandatory obligation to produce “all unedited video and audio recordings . . . within twenty-one days” for “incidents in which there is a complaint of peace officer misconduct” on the payment of fees.

The OSPD isn’t a criminal justice agency within the meaning of the CCJRA.

The trial court correctly found that the officer had reasonable suspicion to seize R.W. after observing, at 2 a.m., two occupants bolt from the car, and R.W. start to drive away with the door still open, when he pulled up.

The district court has an independent duty to investigate juror bias that emerges during trial. The district court’s duty to investigate cannot itself be waived by the parties, and an adequate investigation by the court is a prerequisite to any knowing waiver of a juror bias claim by the defendant.

A search occurs when the government, including its dogs, trespasses onto private property for the purpose of gathering information. Here, Lara the drug dog committed a trespass by sticking her snout through the open car window. Since the sniff was calculated to detect the presence of drugs, this was a search under the 4th Amendment. However, suppression of the evidence was not necessary since the officers reasonably relied on prior precedent indicating this was not a search.

The district court did not err in granting habeas relief to Turner based on his claim of ineffective assistance of trial counsel for failing to adequately challenge the government’s presentation of cell site location information (CSLI) using a GeoTime video.

After a defendant waives his Miranda rights and submits to an interrogation, if the defendant makes an ambiguous request for counsel the officer is required to “stop and clarify” by, for example, “asking if the suspect wishes to obtain legal counsel.” This new “stop and clarify” law is not required under SCOTUS jurisprudence. Instead, the Court bases the decision on the Alaska Constitution Article I, Section 11 right to counsel and Article I, Section 9’s corollary to the Fifth Amendment.