Court Opinions – Aug 19, 2019

People v. Whisler

While executing a search warrant of Curtis Whisler’s home, a police officer found methamphetamine and four guns, all of which Whisler owned. Because Whisler had a prior felony conviction, he was charged with a single count of possession of a weapon by previous offender.

Before trial, Whisler endorsed the affirmative defense of mistake of law. He also waived his right to a jury.

During a bench trial, Whisler testified in his defense. He admitted that he had a prior felony conviction for attempted possession of a controlled substance. And he admitted that he had possessed the four guns. But he also testified that he believed that he legally possessed all the weapons because he had passed background checks when he purchased two of them; and he was aware of his constitutional right to bear arms. At the close of the evidence, defense counsel argued that Whisler was entitled to the affirmative defense of mistake of law — because he passed the background checks, he believed that the Colorado Bureau of Investigation had given him permission to possess the guns.

The trial court rejected Whisler’s mistake of law defense, concluding that Whisler couldn’t assert it as a matter of law. It reasoned that, although Walmart and the CBI had the authority to approve the sale of a firearm, they did not have the authority to “grant permission for somebody convicted of a felony to possess a firearm” so, “even if the background check fail[ed] to reveal a felony conviction and . . . a subsequent sale occurs,” the possession of the firearm by the felon was not lawful.

The court then found Whisler guilty of the POWPO count and sentenced him to 18 months of probation. The Court of Appeals affirmed. 

People v. Thames

The defendant, Douglas Thames, was the second person convicted for the sexual assault and murder of J.T., after Robert Dewey — who was previously convicted of the crime — was exonerated. 

Thames contended on appeal that the trial court erred in not allowing him to introduce evidence of Dewey’s conviction or the DNA test results presented at Dewey’s trial and that the trial court erred in permitting the prosecutor to comment on his silence during a video-recorded interrogation. He further contended that the trial court should not have permitted the jury to view the video of the interrogation because it showed him wearing prison garb. Thames also argued that the cumulative effect of these errors required reversal. Lastly, he argued that the trial court violated his right to be free from double jeopardy by imposing mandatory statutory surcharges and costs outside his presence after sentencing.

The Court of Appeals affirmed but remanded with instructions to allow Thames the opportunity to argue that he is entitled to a statutory waiver of the surcharges.

This case is covered in more detail on page 10.

People in the Interest of A.B.A.

Mother, S.T-K., and father, M.B., are citizens of Iran. The parents divorced in Iran in 2009, when the child was 6 years old, and custody of the child remained with mother pursuant to a court order.

She moved to California in 2011, but the child remained in Iran with his maternal grandmother and father. The child joined mother in California in 2015, and in 2016 they moved to Colorado. 

The mother suffered a mental health crisis and entered a mental health facility on an involuntary hold. Consequently, the Adams County Department of Human Services took the child into protective custody. The department filed a petition in dependency or neglect in October 2016. The juvenile court entered a deferred adjudication as to the mother and later adjudicated the child dependent and neglected as to the mother. After failing to contact the father, the department moved to terminate parental rights. The day before the scheduled termination hearing, the father contacted the family’s caseworker. He said he had just learned of the case and wanted the child returned to him. The next month, the juvenile court terminated both parents’ parental rights.

The mother and father appealed the juvenile court’s judgment.

The Court of Appeals considered whether, under the Uniform Child Custody Jurisdiction and Enforcement Act, the juvenile court lacked subject matter jurisdiction to terminate parental rights based on an existing child custody order in Iran. The court also considered the Adams County Department of Human Services’ contention that the juvenile court could disregard the prior order either because the prior order does not conform to UCCJEA jurisdictional standards or because Iranian child custody law violates fundamental principles of human rights.

The court concluded that the juvenile court lacked subject matter jurisdiction to terminate parental rights and could not disregard the Iranian order. The court also concluded that the juvenile court erred in allowing the department to serve the father by publication. The court therefore vacated the judgment and remand the case for further proceedings.

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