The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Daniel Pierre BOIVIN, Defendant-Appellant.
No. 80CA0373
Colorado Court of Appeals, Div. III.
March 19, 1981
Rehearing Denied April 9, 1981.
Certiorari Granted Aug. 10, 1981.
632 P.2d 1038
BERMAN, Judge.
IV. Sufficiency of the Evidence
The final issue we consider is whether the evidence is sufficient to support the jury‘s verdict of guilty to the crime of child abuse. In considering the sufficiency of evidence we must determine whether the prosecution‘s evidence, when viewed as a whole and in a light most favorable to the prosecution, is substantial and sufficient to support a conclusion by a reasonable person that the defendant is guilty of child abuse as charged beyond a reasonable doubt. E. g., People v. Bennett, 183 Colo. 125, 515 P.2d 466 (1973); accord, People v. Gomez, Colo., 632 P.2d 586 (1981); People v. Elkhatib, Colo., 632 P.2d 275 (1981). Here there was no direct evidence of the defendant‘s infliction of the fatal injuries on the child on April 27, 1979. However, “[t]he substantial evidence test affords the same status to circumstantial evidence as to direct evidence, and an exclusively circumstantial case need not exclude every reasonable hypothesis other than guilt to withstand a motion for a judgment of acquittal.” People v. Elkhatib, supra, Colo., 632 P.2d at 279.
Expert medical testimony established that the three skull fractures and brain damage of April 27 did not occur in the manner described by the defendant to the emergency room attendants at Fort Carson Hospital. Rather, the prosecution‘s medical witnesses testified that these injuries were non-accidental, were probably inflicted with a blunt object, and, being separate and distinct from the injuries of March 19, were the direct cause of the child‘s death. Substantial evidence, albeit circumstantial, places the occurrence of these injuries during that period when the defendant was alone in the apartment with the child. Notwithstanding the efforts of the defendant‘s wife to repress all evidence of child abuse, the similar offense evidence demonstrates the defendant‘s abusive conduct toward the child on prior occasions and is circumstantially probative of his culpable mental state with respect to the offense charged. When the evidence is viewed in its totality and under the appropriate standard of review, it is sufficient to permit a reasonable person to conclude beyond a reasonable doubt that the defendant committed felony child abuse against his child on April 27, 1979.
The judgment is affirmed.
J. D. MacFarlane, Atty. Gen., Richard F. Hennessey, Deputy Atty. Gen., Mary J. Mullarkey, Sol. Gen., William Morris, Asst. Atty. Gen., Denver, for plaintiff-appellee.
Terry L. Perlet, Colorado Springs, for defendant-appellant.
Defendant (movant) asks this Court for leave to file out of time a notice of appeal from his conviction of aggravated robbery. The record reveals that the conviction in question occurred on June 28, 1976. In a
On July 7, 1980, movant filed in this Court a document which we elect to treat as a motion requesting this Court‘s leave to
I.
Relying on Haines, supra, the People argue that movant‘s request must be denied. Haines established a two-part standard to guide an appellate court in determining whether to permit untimely appeal from a criminal conviction. First, there must be “factors” indicating that movant was deprived of his appellate rights; second, “meritorious grounds for appellate review must be shown.”
Thus, the first question here is whether there are “factors” which excuse movant‘s failure timely to file notice of appeal. In this regard, movant claims that he was not aware of his right to appeal, and that his counsel did not advise him of such right. Movant further insists that the trial court itself did not advise him of such right, and consequently failed to comply with the dictates of
In a pro se2
Compliance with both
“the district court shall advise the defendant at the time of sentencing of his right to appeal, including his right to appeal the sentence, of the time within which the appeal must be taken, and his right to be represented by counsel. The time for filing the notice of appeal may be extended by either the sentencing court or the appellate court.” (emphasis added)
“[e]xcept in cases where judgment of conviction has been entered following a plea of guilty or nolo contendere, the court shall after passing sentence inform the defendant of his right to seek review. In cases in which the court has previously made a determination that the defendant is indigent, the court shall also inform the defendant of his right to the assistance of appointed counsel upon review, and of his right to obtain a record on appeal without payment of costs.” (emphasis added)
The question becomes whether noncompliance with the stated rules can be forgiven on the basis that a defendant acquired independent knowledge of his appellate rights. We hold that it cannot.
In the first place, a mere showing that a defendant at some point had some awareness of his right to appeal would scarcely obviate the need for full compliance with the quoted provisions. The purpose of the rules in question is not merely to alert a defendant that he has some right to appeal, but, rather, is to inform him as to what may be appealed, the pertinent time limits, and the availability, if defendant is indigent, of a free trial transcript and of appointed counsel to assist in pursuit of an appeal. Further, the rules are designed to provide such information in time for a defendant to put it to effective use.
In a very practical sense, effective access to the appellate process depends upon certain minimum knowledge concerning that process. The rules here involved were designed expressly to impart such knowledge. While that knowledge could indeed be acquired by other means, such as through advice of counsel, we think the intent behind the rules is to establish some minimum
The instant case illustrates well the problem the rules seek to avoid. As has been noted, movant had, at some point, some awareness of his appellate rights. But, there is nothing in the record to indicate precisely when such awareness arose, nor how comprehensive that awareness was. In the hearing pursuant to his March 21, 1980,
The People would have us remand the cause for a hearing limited to the issue of whether, despite the trial court‘s concession, movant nevertheless had timely actual knowledge of each appellate right listed in
Our holding is supported by opinions construing Federal Rule of Criminal Procedure 32(a)(2), of which our
Thus, once there is sufficient reason to believe that the trial court has not advised a defendant of his appellate rights (including the special rights of an indigent defendant), the burden falls upon the People to demonstrate that he was so advised. This is so because law, generally speaking, and formal logic place the burden of proof upon him who asserts the affirmative of a proposition; not upon him who asserts an existential negative. See generally American Insurance Co. v. Naylor, 101 Colo. 34, 70 P.2d 349 (1937). The People failed to meet that burden in this case.
In conclusion, we hold that movant‘s right to appeal was effectively frustrated, and, therefore, that the first element of the Haines test has been satisfied. See generally Wynn v. Page, 369 F.2d 930 (10th Cir. 1966).
II.
As to the second aspect of Haines, the threshold question is whether, in light of Rodriquez v. United States, 395 U.S. 327, 89 S.Ct. 1715, 23 L.Ed.2d 340 (1969), and its progeny, the Colorado Supreme Court would entirely adhere to its former opinion. Rodriquez, decided after Haines, involved a federal, rather than a state, defendant. In that case, petitioner brought “suit for post-conviction relief under
Both the District Court and the Court of Appeals held that applicants in petitioner‘s position were required to disclose what errors they would raise on appeal, and to demonstrate that denial of an appeal had prejudiced their cause. The United States Supreme Court reversed, holding that petitioner‘s failure to specify points he would raise were his right to appeal reinstated, after being lost for failure timely to file notice of appeal, did not justify rejection of his application for post-conviction relief.
In analyzing the question whether the Colorado Supreme Court would follow Haines in its entirety, we have the benefit of four somewhat overlapping classes of judicial precedents. First, there are cases from the lower federal courts which consider Rodriquez‘s scope, including especially its applicability to state defendants. Second, there are lower federal court cases which, though not relying on Rodriquez, establish a Rodriquez-like rule which is binding upon state courts. Third, there are cases from the courts of our sister states which consider the effect of Rodriquez on the law of their own states. Fourth, there are various cases which call into question the current vitality of those opinions upon which the Colorado Supreme Court relied in reaching its decision in Haines.
A.
As has been noted, Rodriquez itself involved a federal defendant. The United States Supreme Court has not spoken concerning whether the rationale of Rodriquez would require the rule in that case to apply also to state defendants. And, initially, that question produced a split of authority among the circuits of the United States Court of Appeals. Now, however, the circuits which have considered the question appear unanimously to hold “that Rodriquez is applicable to state prisoners seeking the reinstatement of an appeal through federal habeas corpus relief.” United States ex rel. Randazzo v. Follette, 444 F.2d 625 (2d Cir. 1971); Wilbur v. Maine, 421 F.2d 1327 (1st Cir. 1970); Riser v. Craven, 501 F.2d 381 (9th Cir. 1974), overruling Buster v. Hocker, 428 F.2d 820 (9th Cir. 1970).
B.
The United States Court of Appeals for the Seventh Circuit though not citing Rodriquez, has established a Rodriquez-like rule which that Court has applied to state defendants. Sutton v. Lash, 576 F.2d 738 (7th Cir. 1978); United States v. Woods, 440 F.2d 835 (7th Cir. 1971). Thus, the Seventh-Circuit rule, though based on somewhat different authority, is entirely consonant with that of the First, Second, and Ninth Circuits, see part A, supra.
C.
Rodriquez has generated five basic lines of cases in state courts.
First, there are cases which appear to find the federal-versus-state-defendant distinction to be an immaterial one and, therefore, find Rodriquez directly applicable to state proceedings. See, e. g., Ball v. State, 479 S.W.2d 486 (Mo.1972); Babson v. Wainwright, 376 So.2d 1187 (Fla.App.1979). This approach has been followed to overrule precedents quite analogous to Haines with respect to the requirement of an allegation of meritorious grounds for appeal. See, e. g., Stinnett v. Commonwealth, 446 S.W.2d 292 (Ky.1969).
Second, there are cases which, though not necessarily finding the federal-versus-state-defendant distinction to be an immaterial one, nevertheless find the reasoning in Rodriquez sufficiently persuasive to warrant
Third, at least one case also follows the local circuit of the United States Court of Appeals, see part A, supra, holding that Rodriquez applies to state defendants. Brine, supra.
Fourth, there are cases which find Rodriquez distinguishable on grounds absent in the instant case.3
Finally, there are cases which distinguish Rodriquez on grounds which might be thought also to justify distinguishing the instant case. See, e. g., State v. LeRoy, 30 Ohio St.2d 138, 283 N.E.2d 136 (1972); Jones v. State, 3 Kan.App.2d 578, 598 P.2d 565 (1979). These latter cases, however, appear to run contrary to the rule established in the various circuits of the United States Court of Appeals, see parts A and B, supra. Indeed, three Justices of the Ohio Supreme Court, relying, inter alia, on Wilbur, supra, and Randazzo, supra, vigorously dissented in LeRoy.
D.
In holding that “an essential and reasonable requirement of a request for a late filing of a writ of error is a showing that meritorious grounds for review exist,” (emphasis in original), the Haines Court placed primary reliance upon a pre-Rodriquez case, Fennell v. United States, 339 F.2d 920 (10th Cir. 1965). Because Fennell involved a federal defendant, the holding in that case is brought into direct question by Rodriquez. Though Rodriquez did not itself cite Fennell, a comparison of the two opinions suggests that Rodriquez overruled Fennell.
While it is not, of course, conclusive of the question whether the Colorado Supreme Court would adhere to Haines, the invalidation of Fennell does substantially erode Haines’ underpinnings in its “meritorious grounds for review” aspect.4
Further, the Tenth Circuit position vis-a-vis state defendants, as expressed in a post-Fennell opinion delivered by an entirely different panel of judges from that which decided Fennell, required, under circumstances quite analogous to those of the instant case, no allegation of meritorious grounds as a condition precedent to a late appeal. Wynn v. Page, supra.
E.
In measuring the current force of Haines, “our function cannot be limited to a mere blind adherence to precedent. We must determine with the best exercise of [those] mental powers of which we are capable that law which in all probability will be applied to [this litigant] or to others similarly situated. If this means the... applying of a ‘new doctrinal trend’ [to our courts,] this is our task to be performed directly and straightforwardly, rather than [to be] ‘artfully’ dodged.” Spector Motor Service v. Walsh, 139 F.2d 809 (2d Cir. 1943). And, as expressed by Learned Hand, dissenting in Spector: “It is always embarrassing for a lower court to say whether the time has come to disregard decisions of a higher court, not yet explicitly overruled.... [But,] I agree that one should not wait for formal retraction in the face of changes plainly foreshadowed....” Judge Hand went on to say: “I conceive that the measure of [a lower court‘s] duty is to divine, as best it can, what would be the event of an appeal in the case before it.”
III.
We conclude that, in the instant case, movant has satisfied what we consider to be the current requirements of Haines. In so doing, he has also met the
Therefore, the motion to file late appeal is granted, and the cause shall stand docketed in this Court as of the date of this order. The time for filing of the record and the briefs shall run in accordance with
VAN CISE, J., concurs.
ENOCH, C. J., dissents.
ENOCH, Chief Judge, dissenting.
I respectfully dissent.
In part two of its opinion, the majority concludes that a meritorious ground for appellate review need not be shown before an appeal may be filed out of time. The majority rationalizes that this requirement, as announced in Haines v. People, 169 Colo. 136, 454 P.2d 595 (1969), would, in light of the United States Supreme Court‘s opinion in Rodriquez v. United States, 395 U.S. 327, 89 S.Ct. 1715, 23 L.Ed.2d 340 (1969), and its progeny, no longer be followed by the Colorado Supreme Court. While the Supreme Court might well reconsider Haines in light of subsequent authority, such conclusion is not foregone.
The Rodriquez standard was not imposed as a requirement upon the states, and although there may be a trend toward abandonment of the requirement that a meritorious ground be shown, the jurisdictions are not unanimous. See, e. g., Jones v. State, 3 Kan.App.2d 578, 598 P.2d 565 (1979). Furthermore, I find nothing offensive in the requirement that for defendant in this case to be allowed to file a notice of appeal over three and one-half years late, he must at least show some meritorious ground for appellate review.
Whether Haines remains viable authority is a question better left for the Supreme Court, and, since defendant has failed to show a meritorious ground for review, I would deny the motion to file a notice of appeal out of time.
Jose L. MARTINEZ, Petitioner, v. INDUSTRIAL COMMISSION of the State of Colorado, Charles J. McGrath, Director of the Division of Labor, and GAF Corporation, Respondents.
No. 80CA0868.
Colorado Court of Appeals, Div. I.
March 26, 1981.
Rehearing Denied April 16, 1981.
Certiorari Denied Aug. 4, 1981.