Editor’s Note: Law Week Colorado edits court opinion summaries for style and, when necessary, length.
The Colorado Court of Appeals unanimously reversed and remanded a case involving conflict-free counsel.
Matthew Lopez appealed his convictions on the grounds a trial court violated his right to conflict-free counsel and the trial court erred by not disqualifying a biased juror. The appeals court agreed with the argument concerning conflict-free counsel, and given the other claim is unlikely to arise on remand, the court didn’t address it.
Lopez was accused of sexually assaulting K.H. After K.H. reported the assault, authorities searched Lopez’s home and allegedly found a homemade incendiary or explosive device that looked like a tennis ball wrapped in duct tape. Lopez was charged with seven felony counts. He was convicted as charged.
Lopez contended the trial court violated his right to conflict-free counsel because it didn’t obtain a valid waiver of the right from him. The appeals court agreed.
Lopez was prosecuted by the El Paso County District Attorney’s Office and was represented by the same attorney throughout the pendency of the case. Before appearing as Lopez’s counsel, and then concurrently with the representation, the defense had been prosecuted by the same DA for multiple offenses including DUI. A week before Lopez’s trial, the defense counsel resolved all of their pending cases with a global disposition.
In May 2018, the trial court made an inquiry into whether Lopez was advised of potential conflicts of interest that existed due to the defense counsel’s charges. The court asked Lopez and he was fine with the defense counsel continuing to represent him. The parties agree the court did not speak to Lopez again about the conflict of interest after that conversation.
The appeals court wrote the trial court only asked if Lopez was aware of the circumstances and didn’t mention the defense counsel had been criminally charged, which means the trial court’s inquiry was deficient. Also, outside of what the defense counsel said, nothing in the record shows Lopez was informed of the nature and potential consequences of the conflict ahead of time.
The appeals court reversed and remanded the case for a new trial.
The Colorado Court of Appeals unanimously affirmed a judgment in a case connected with competency hearings.
The appeals court tackled the issue: How should a court proceed in a case when a lawyer asserts the mental state of a defendant, whom the court previously found competent, has deteriorated where the defendant may no longer be competent?
Matthew Rodriguez appealed his conviction of sexually assaulting a child (pattern of abuse), two counts of sexual assault on a child (position of trust) and aggravated incest. Rodriguez challenged the district court’s denial of the defense counsel’s third motion for a competency evaluation, along with the court’s related decision to not grant the defense another continuance, after nearly three years of delays.
The defense filed three motions to determine if Rodriguez was competent. Competency evaluations were ordered for the first two motions and Rodriguez was found competent to proceed. After Rodriguez’s counsel filed a third motion for competency, the court conducted a hearing where it reviewed the details involving the previous competency evaluations. The court concluded Rodriguez was competent to proceed, denying the third motion.
There was also an alleged direct conflict between Rodriguez and his counsel and the defense asserted because of this purported conflict, Rodriguez was entitled to new counsel. The court denied the request. After going to trial, Rodriguez was convicted on all counts.
On appeal, Rodriguez contends multiple issues including the district court erred by denying the third motion and by not granting him a continuance for another competency evaluation. He also appealed the denial of his request for substitute counsel.
As for the third competency hearing and continuance, the appeals court wrote after a court makes a final determination of competency, which was already done twice in this case before the third motion, the court doesn’t need to order another evaluation because the new motion raises the same issues as the previous competency motions.
The appeals court also disagreed on the arguments concerning the rejection of an appointment of a substitute counsel due to the alleged breakdown of communication between Rodriguez and the defense. The appeals court wrote any lawyer would have had the same communication issues with Rodriguez.
The appeals court affirmed the conviction.
The Colorado Court of Appeals reversed and remanded a case involving the Fifth Amendment and the Miranda warning.
Terrence Eugene appealed his conviction of second- and third-degree assault after an alleged road rage incident. When police found Eugene at his apartment after the incident, they asked him to step outside and talk with them, which he agreed to do. Following that, there was a 27-minute interrogation captured on a body camera worn by Officer Christopher Thivierge, the interrogating officer.
According to court records, during the interrogation, Thivierge separated Eugene from his wife to interrogate each alone, while suggesting he falsely had camera footage of the fight and denied Eugene’s request to go back in his apartment to use the bathroom.
Eugene moved to suppress the video of the interrogation before trial, arguing he was in custody for purposes of Miranda and the lack of a Miranda advisement meant his interrogation statements were inadmissible. The trial court ruled Eugene was never in custody for Miranda purposes and Eugene’s interaction with the interrogating officer was admitted at trial.
Eugene was found guilty and was sentenced to eight years in prison.
On appeal, Eugene argues the trial court erred by not suppressing his statements made during interrogation among other contentions. The appeals court agreed with Eugene regarding the failure to suppress some of his statements and found it didn’t need to address the other arguments.
According to the record, the prosecution concedes the interaction was an interrogation, which the appeals court agrees with, so the court needed to determine if all or part of it was custodial. The appeals court concluded the interrogation wasn’t custodial at the beginning, but it became custodial close to the end.
The appeals court wrote that at the beginning of the third phase of the interrogation the interaction had already lasted 22 minutes, Thivierge consistently spoke to Eugene in a confrontational and accusatory tone, maintained separation from his wife, denied Eugene’s request to go to inside his apartment to use the bathroom, lied about the video footage and then a third officer arrived.
The appeals court concluded officers failed to give Eugene a Miranda advisement before the third phase and the trial court violated Eugene’s Fifth Amendment rights by not suppressing Eugene’s statements from the third phase.
The appeals court reversed Eugene’s conviction and remanded the case for retrial.
In dissent, now retired Appeals Court Judge Steve Bernard argued the defendant was never in custody during the interrogation so the officer wasn’t required to inform Eugene of his Miranda rights. Bernard cited multiple issues including: “There is no indication in the record, including in the video from the investigating officer’s body camera, that any of the officers told defendant that he could not leave or that defendant expressed any desire to leave. The officers did not yell at him or at his wife; they did not call him or his wife any names; and they did not threaten him or his wife. They did not arrest defendant after the interrogation. That came later.”
Bernard concluded he would affirm Eugene’s convictions for second- and third-degree assault, but he would remand the case to merge the conviction of third-degree assault into the conviction of second-degree assault and amend the mittimus to show Eugene only being convicted of second-degree assault.