People v. Moore
2010 Colo. App. LEXIS 1828
Colo. Ct. App.2010Background
- Moore was convicted by a jury of attempted first degree murder, two counts of first degree burglary, first degree assault, sexual assault, menacing, and violation of a protection order, and was adjudicated a habitual offender.
- The trial court gave a Curtis advisement; Moore did not testify, and he now challenges the advisement as defective.
- The court held the Curtis error, if any, was not plain error under unsettled Colorado law at the time of trial.
- During trial, a newspaper article about Moore’s criminal history was published; juror S was exposed to it, and Moore moved to excuse her.
- Pen packs and certificates of authenticity were admitted at the habitual offender trial, Moore challenging them under the Confrontation Clause in light of Melendez-Diaz.
- The court vacated one burglary-related conviction (burglary-assault/menace) as erroneous, left other sentences intact, and remanded to correct the mittimus; sentences were otherwise affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Curtis advisement plain error? | Gomez unsettled law; advisement defect not plain error. | Advisement defective, could affect knowing waiver. | Curtis error not plain; no relief. |
| Juror exposure to prejudicial publicity requires reversal? | Exposure could prejudice; juror S should be excused. | Trial court did not abuse discretion; juror remained impartial. | No abuse; denial affirmed. |
| Admission of pen packs and certificates: Confrontation Clause? | Pen packs are testimonial; violate confrontation. | Pen packs not testimonial; no Confrontation Clause violation. | Not a Confrontation Clause violation; admission affirmed. |
| Sentence integrity: improper duplication of burglary methods (assault/menace vs dead weapon)? | Remand to vacate the burglary-assault/menace sentence necessary. | Consecutive vs concurrent sentencing proper per law. | Only burglary-assault/menace sentence vacated; remand for mittimus correction. |
| Concurrence of sentences for burglary and attempted murder? | Evidence supports distinct acts; concurrent sentences not mandated. | Should run concurrently. | Consecutive sentences upheld; not identical evidence. |
Key Cases Cited
- People v. O'Hara, 240 P.3d 283 (Colo. App. 2010) (post-conviction waiver review; unsettled law on Curtis issue)
- People v. Blehm, 983 P.2d 779 (Colo. 1999) (Curtis advisement must be raised in post-conviction proceedings)
- People v. Gomez, 211 P.3d 53 (Colo. App. 2008) (waiver issue; judicial economy considerations)
- People v. Chavez, 853 P.2d 1149 (Colo. 1993) (Curtis advisement may be expanded if correct; proper scope)
- Melendez-Diaz v. Massachusetts, 557 U.S. 305 (Supreme Court 2009) (testimonial certificates; confrontation clause impact)
- People v. Shreck, 107 P.3d 1048 (Colo. App. 2004) (pen packs admissibility pre-Melendez-Diaz; not testimonial)
- Muckle v. People, 107 P.3d 380 (Colo. App. 2005) (abuse-of-discretion standard for juror exposure cases)
- Woellhaf v. People, 105 P.3d 209 (Colo. 2005) (multiple punishments for the same offense; identical evidence test)
- People v. Turner, 50 Cal.3d 668 (Cal. 1990) (concurrent vs consecutive sentencing considerations referenced)
- Juhl v. People, 172 P.3d 896 (Colo. 2007) (identical evidence test for concurrent sentencing)