Justice Mullarkey on Criminal Justice
From Judgepedia
In a 4-3 decision, Justice Mullarkey concurred in the majority opinion, which concluded, over the dissents of Justices Eid, Coats, and Rice that a police officer's search of the defendant and his vehicle, which resulted in the discovery of marijuana and cocaine, was unconstitutional, because the officer's stop was predicated only on the belief that the tree-shaped air freshener hanging from the defendant's-driver's rear-view mirror unlawfully obstructed the defendant-driver's vision.
* ON SEARCH AND SEIZURE:The officer followed the defendant for a dozen blocks, and, observing no traffic violations, finally decided to pull the defendant over for having a tree-shaped air freshener hanging from his rear-view mirror-- the only "possible ground" for stopping the defendant, because it "could have" obstructed the driver's vision. "However, no showing was made that [the officer] believed it obstructed the driver's vision at the time of the stop." The officer did not verify "whether the air freshener actually obstructed the driver's vision." The defendant testified that "the air freshener in no way obstructed his vision."
* ON SEARCH AND SEIZURE:"To stop a vehicle based on [driving with obstructed vision], there must be more than a possibility that the driver's vision is obstructed. An officer must reasonably believe that the statute is being violated or is about to be violated, and he must be able to communicate this reasonable belief to the court. Here, Officer Gray testified that he pulled over Arias because the air freshener “could have” obstructed the driver's vision through the windshield. The trial court appeared to conclude from this testimony that [the officer] believed the air freshener hanging from the rear-view mirror was in violation of the statute without regard to whether the driver's vision through the windshield was actually obstructed. Because [the officer] did not testify with any specificity how the air freshener was displayed in the windshield or how the angle of vision may have actually been obstructed, he did not persuade the court that his belief that the air freshener obstructed the driver's vision was reasonable."
Justice Eid authored the dissenting opinion, in which Justices Coats and Rice joined, protesting that because the trial court had concerns abut the vagueness of the obstructed view statute, it was not adequately able to make a factual finding as to whether the air freshener actually obstructed the defendant's view of the road. Thus these three justices would have the case remanded to the trial court for further findings.
Justice Mullarkey concurred with the majority opinion of the Court, which concluded, over the dissent of Justice Coats, that a 13-year-old accused of burglary could not be tried or sentenced as an adult, even though he had turned 14 since the time of the crime, where he had committed the crime when 13. In his dissent, Justice Coats indicated his belief that any lack of jurisdiction over the defendant was waived when the defendant failed to object to being sentenced as an adult, and instead pleaded guilty.
In a 4-3 decision, Justice Mullarkey concurred in the majority opinion, written by Justice Martinez, which concluded, over the vigorous dissents of Justices Coats, Rice, and Allison Eid, that the defendant's confession to sexual assault should not be admitted as evidence against him because the defendant indicated that he had a desire to speak with an attorney prior to making the confession. In his dissent, Justice Coats indicated that "rather than an isolated example of misapplication, the majority's application in this case seems to me to be typical of * * * its hostility or antipathy toward the use of confessions as a tool to solve crimes."
In a 5-2 decision, Justice Mullarkey concurred in the majority opinion, written by Justice Martinez, which concluded, over the vigorous dissents of Justices Coats and Eid, that, in a first-degree murder case, the defendant's confession to stabbing the victim was not made voluntarily, and therefore was not admissible against him at trial, where, even though the defendant waived her Miranda rights, the defendant's confession was made under "psychological coercion" and "emotional vulnerability" because the questioning officers informed the defendant that the victim had just died from the stabbing wounds; and that the "persistent questioning of the defendant after her emotional breakdown was psychologically coercive." The dissent shot back, noting that the majority's decision would "substantially impact the law of confessions," that "it is difficult for one who is told he is free to refuse to answer questions to complain that his answers were the product of intimidation or psychological coercion," and that "the defendant was not only willing to answer but consistently sought to excuse her own conduct * * *."
In this parolee disenfranchisement case, plaintiff Danielson brought suit against defendant in her capacity as Colorado Secretary of State alleging that a Colorado statute stating that no person "serving a sentence of parole shall be eligible to register to vote or vote in any election" was in conflict with the Colorado Constitution, Article VII, section 10.
Article VII, Section 10 of the Colorado Constitution states: "No person while confined in any public prison shall be entitled to vote; but every such person who was a qualified elector prior to such imprisonment, and who is released therefrom by virtue of a pardon, or by virtue of having served out his full term of imprisonment, shall without further action, be invested with all the rights of citizenship, except as otherwise provided in this constitution."[1]
Justice Hobbs wrote the opinion of the court, which ruled that the statute wasn't in conflict with the state Constitution and affirmed the trial court's dismissal, stating:"We hold that the General Assembly did not violate article VII, section 10 of the Colorado Constitution by enacting a law that prevents a person who has been convicted of a felony and is serving a sentence of parole from voting or registering to vote. A person who is serving a sentence of parole has not served his or her full term of imprisonment within the meaning of this constitutional provision."
