Lesser DUI Charge Blocked by Double Jeopardy in DUI-Based Vehicular Homicide

When the elements of a lesser charge are incorporated in another and greater crime, double jeopardy bars prosecutors from charging the defendants with the lesser crime

Reyna-Abarca v. People, 2017 BL 59224, Colo., No. 13SC725, 2/27/17.

The Colorado Supreme Court held that double jeopardy bars charges of lesser crimes that incorporate the same elements of similar, yet greater, crime. In the case, the defendant was charged with a DUI as well as vehicular homicide-DUI, which incorporates the same elements of the DUI charge. The court used the test developed in Schmuck v. United States, 489 U.S. 705, 716 (1989), which defines a “lesser included offense.” In the test, if all of the elements of a lesser offense are also included in the greater offense, then the lesser offense is barred.

http://www.bloomberglaw.com/public/document/ReynaAbarca_v_People_2017_CO_15_Court_Opinion.

Justice Court’s Lack of Subject Matter Jurisdiction Prevents Double Jeopardy Problem

After an initial conviction was vacated due to a justice court's lack of subject matter jurisdiction, the second conviction at the district court level does not implicate double jeopardy protections 

South Jordan City v. Summerhays, 2017 UT App 18.

The Utah Court of Appeals held there is no double jeopardy if a crime is improperly tried in a city’s justice court and is later vacated by the district court and properly retried later. In the case, the defendant gave a guilty plea in justice court for violating a protective order, a class A misdemeanor, and began serving a ten-day sentence. After the guilty plea, the defendant immediately appealed his conviction in district court, arguing that the justice court had no jurisdiction to consider a criminal charge above a class B misdemeanor. The district court then vacated the judgment and the defendant was released.

The city properly refiled charges in district court soon after and the defendant moved to dismiss the charges because of the Double Jeopardy Clause of the Fifth Amendment. The district court rejected the argument, finding that the justice court did not have jurisdiction to hear the case. Relying on Supreme Court jurisprudence regarding the double jeopardy, the Court of Appeals affirmed the district court’s ruling, finding that the justice court’s lack of subject matter jurisdiction prevented jeopardy from attaching from the initial conviction.

https://www.utcourts.gov/opinions/appopin/South%20Jordan%20City%20v.%20Summerhays20170126.pdf

Officer Testimony about Defendant’s Refusal to Speak not a Reversible Error

An arresting officer's mention at trial of a defendant's refusal to answer questions during the investigation is not inherently a reversible error

State v. Neilson, 2017 UT App 7.

The Utah Court of Appeals found that a trial court did not commit error requiring a mistrial after an officer gave testimony about the defendant’s unwillingness to speak during an investigation. After being arrested and charged with several sex crimes against a minor, the defendant was contacted by his arresting officer as part of the investigation. The defendant exercised his Fifth Amendment rights and refused to speak to the officer further about his charges. During the trial, the prosecutor elicited testimony from the officer of the contact he had with the defendant. In this line of questioning, the officer testified that the defendant refused to speak with him. After receiving that answer, the prosecutor moved on in his questioning without mentioning the defendant’s silence. The prosecutor did not emphasize this incident and the trial court provided a curative instruction to prevent the jury from drawing a “negative inference” from the “isolated statement.” The Court of Appeals further noted that the defendant failed to establish that the incident “so likely influenced the jury that [he] cannot be said to have had a fair trial.” The trial court’s ruling was affirmed.

https://www.utcourts.gov/opinions/appopin/State%20v.%20Neilson20170112.pdf

Prosecutor’s Remarks on Defendant’s Silence Requires Reversal

Although the prosecutor never remarked that a defendant’s silence implied anything during trial, any reference to a defendant’s silence is enough to require reversal

State v. A. M., 2016 BL 429804, Conn., No. SC 19497, 12/23/16.

The Connecticut Supreme Court held that any comments made by the state during a trial that reference a defendant’s silence during the trial proceedings is sufficient to trigger a reversal. During the closing argument, the prosecutor mentioned twice that the defendant had a constitutional right to remain silent, but that the jury could judge his credibility through statements made before the trial. The court reasoned that any comment on the defendant’s silence, even referencing the right to remain silent, can improperly draw the jury’s attention to the defendant’s decision to not take the stand. Moreover, there was a state statute that expressly prohibited prosecutors from commenting on a defendant’s refusal to testify at trial.

The state defended the error by arguing that it was harmless. The court rejected the argument because the case hinged on the defendant’s credibility, which was implicitly called into question by the reference to his silence at trial.

https://www.bloomberglaw.com/public/desktop/document/State_v_A_M_No_SC_19497_2016_BL_429804_Conn_Dec_23_2016_Court_Opi?1485364268

Fifth Amendment Still Applies in Pretrial Proceedings

The right against self-incrimination extends to pretrial proceedings because the Fifth Amendment right is more than just a “trial right”

Vogt v. City of Hays, Kansas, 2017 BL 1063, 10th Cir. App., No. 15-3266, 1/4/17.

The Tenth Circuit held that the right against self-incrimination is not limited to trial, but also pretrial proceedings. The court found that the term “criminal case” under the Fifth Amendment includes probable cause hearings, concluding that the right is more than just a “trial right.”

In the case, a police officer was criminally investigated after admitting in an interview with another agency that he has withheld evidence in a trial. The charges were eventually dropped, but the officer sued the city and the police department claiming that the evidence used against him were coerced statements. In the lawsuit, the court sided with the city, holding that the Fifth Amendment only covers incriminating statements if they are used in trial. The Tenth Circuit, however, relying on dicta from Chavez v. Martinez, 538 U.S. 760, was willing to extend Fifth Amendment protections to the pretrial process. The court took into consideration pieces of constitutional history regarding the Fifth Amendment and held that it had a broad application in criminal cases.

http://www.bloomberglaw.com/public/document/Vogt_v_City_of_Hays_No_153266_2017_BL_1063_10th_Cir_Jan_04_2017_C.

Accusatory Texts Are Inadmissible Hearsay in Oregon Court

Oregon Supreme Court determines that text messages sent by victim with the assistance of the police are non-admissible hearsay

State v. Schiller-Munneman, 2016 BL 210679, Ore., No. SC-S063526, 6/30/16.

   The Oregon Supreme Court found that text messages sent by a victim of sexual assault without a response by the defendant are inadmissible evidence under Oregon’s hearsay laws. After being assaulted, the victim, with the assistance of the local police, sent text messages to the defendant asking him several questions about the assault with the intention of having him confess or admit culpability. Instead, there was no response.

   The prosecution in the case wanted to draw attention to the lack of response by the defendant to support their case against him. The court, however, found that such evidence was impermissible under Oregon law because the sent messages were not questions, but statements within the context of the situation. Additionally, the court refused to admit the texts under the “adoptive admission” exception under the hearsay rule, which would allow a no-response to be adopted as the defendant’s manifestation of his agreement to the truth of the statement. The court declined to accept this argument as well, stating the rule cannot apply because several contradictory inferences can be reasonably made from the silence.

   In addition, the court refused to answer whether the Fifth Amendment blocks prosecutors from commenting on an accused’s pre-arrest and pre-Miranda right to remain silent.

https://www.bloomberglaw.com/public/desktop/document/State_v_SchillerMunneman_No_SC_S063526_2016_BL_210679_Or_June_30_?1467833090