Friday, January 13, 2017

Murder, Burglary and the “Extraneous Theft”

This post examines a recent opinion from the Court of Appeals of Texas - 14th District 2017: Kahlid Yusuf Worrell v. State, 2017 WL 124351 (2017). The opinion addresses what is, at least to me, a novel scenario.  As the court explains,
[t]his is an appeal from two separate judgments. The first is a judgment adjudicating guilt, which arises out of an offense committed in 2011. The second is a judgment of conviction by jury, which arises out of an offense committed in 2015, when appellant was on community supervision. Several issues are raised between the two cause numbers, but we only address the merits of one issue in which appellant challenges the admission of extraneous-offense evidence
Kahlid Yusuf Worrell v. State, supra. You can read about the prior judgments in the news stories you can find here, here, here and here
The opinion goes on to outline the charges in and the outcome of each of the prior prosecutions, beginning with the burglary case:
NO. 14-15-00966-CR

Appellant pleaded guilty in 2011 to a charge of burglary of a habitation. The trial court deferred an adjudication of guilt and placed appellant on community supervision for a period of six years. In 2015, the State moved to adjudicate guilt, alleging that appellant had violated the terms of his community supervision by committing the murder that is the subject of the other cause number in this appeal. The trial court carried the motion with the murder trial and ruled on it after the jury returned a verdict in that other case.

Appellant's trial counsel filed notices of appeal in both the burglary case and the murder case. Appellant was appointed different counsel on appeal, and counsel here has filed a single brief addressing both cases together. In the combined brief, counsel concludes that the appeal of the burglary case (and only that case) is wholly frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738 (1967), by presenting a professional evaluation of the record and demonstrating why there are no arguable grounds to be advanced. See High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978).

A copy of counsel's brief was delivered to appellant, and he was advised of the right to examine the appellate record and file a pro se response. Appellant requested and was provided a copy of the record. Appellant also filed a pro se response to counsel’s Anders brief.

We have carefully reviewed the record, counsel's brief, and appellant's pro se response and agree that the appeal in the burglary case is wholly frivolous and without merit. Further, we find no reversible error in the record. We need not address the merits of each claim raised in an Anders brief or a pro se response when we have determined that there are no arguable grounds for review. See Bledsoe v. State, 178 S.W.3d 824, 827–28 (Tex. Crim. App. 2005).
Accordingly, we affirm the trial court's judgment in the burglary case.
Kahlid Yusuf Worrell v. State, supra. 
The court then outlines the facts and led to the charges in the appeal before it:
NO. 14-15-00967-CR
In the murder case, appellant's appointed counsel asserts three separate points of error, but they all complain of the same issue, which is the admission of extraneous-offense evidence. The State did not file a brief responding to the merits of this complaint.

Background. The complainant, a twelve-year-old boy, was fatally shot three times in his home. The exact reason for the shooting was never fully explained at trial. The evidence suggested that the complainant was merely in the wrong place, at the wrong time, caught in a terrible moment between his adult brother, Dashawn, and appellant, who was Dashawn's former friend.

Dashawn testified that he had known appellant for about a year. On the day of the shooting, Dashawn invited appellant over to his house to smoke marijuana. Dashawn also hoped that appellant would drive him to a barbershop to get his hair cut. Appellant arrived in the afternoon. He came into the living room and engaged in small talk with Dashawn. The complainant was also in the living room, watching cartoons. After a few minutes, Dashawn left for the bathroom to brush his teeth. He left the door to the bathroom open and carried on his conversation with appellant. Dashawn did not detect any sense of animosity or disagreement coming from appellant.

Without warning, appellant walked over to the area just outside the bathroom and shot Dashawn in the face. Dashawn managed to close and lock the bathroom door. Appellant then fired into the bathroom through the door. Dashawn was struck five more times. He escaped through the bathroom window and ran to a neighbor's house, where he sought help. Because he could not speak (a bullet had lodged in his throat), Dashawn used a neighbor's phone to write a message saying that he had just been shot by appellant. Dashawn also wrote that his siblings were still inside the home.

When the police arrived, appellant had already fled the scene. The complainant was pronounced dead on arrival. He had been shot in the head, in the living room where he had been watching television. Another sibling had been shot in the neck, but the bullet just grazed the skin.

The police quickly identified appellant as a likely suspect. Appellant had dialed Dashawn's house phone shortly before the shooting, and his number appeared on the caller ID. The complainant's twin had also identified appellant in a photo array. The twin was in another room when the shooting occurred, meaning that he did not witness the shooting, but the twin said that he had seen appellant in the home in the moments immediately preceding the shooting. The twin was also able to give a description of what appellant had been wearing.

Within a week of the shooting, the police found appellant driving around in the neighborhood. They initiated a traffic stop and searched his vehicle. In the trunk, they found the murder weapon, a box of ammunition, and a laptop. The laptop is the focus of appellant's extraneous-offense complaint.
Kahlid Yusuf Worrell v. State, supra.  If you are interested, you can read more about the facts in the second case in the news stories you can find here, here and here.
The opinion goes on to explain that,
In a hearing outside the presence of the jury, the State indicated that it was planning to introduce evidence that appellant had stolen the laptop. The State explained that this extraneous theft was relevant, in part, because the laptop led to the discovery of other important evidence. In its proffer, the State said that the laptop was registered to a Vietnamese man, who reported that the laptop was taken from the trunk of his car when he was shopping at Walmart. The theft occurred on the same day as the shooting, and the Walmart was less than two miles away from Dashawn's house. Based on that information, investigators sought the surveillance footage from inside the Walmart. From that footage and additional investigations, the State learned that appellant had paid cash for a box of ammunition, that the ammunition matched the kind that was both used in the shooting and found in appellant's car, and that the purchase occurred less than one hour before the shooting. The surveillance footage also corroborated the twin's description of appellant's clothing.

The State argued that the extraneous theft was admissible because of the role it played in the investigation. The State also argued that the extraneous theft was probative of appellant's motive and identity. Defense counsel objected. He argued that the evidence of appellant's purchase at Walmart could be introduced without mentioning the extraneous theft. The trial court overruled the objection.
Kahlid Yusuf Worrell v. State, supra. 
The Court of Appeals then explained that
[w]e need not determine whether the trial court abused its discretion by admitting the evidence of the extraneous offense because any error in the admission of that evidence would be subject to a harm analysis for nonconstitutional error, and under that standard, the error would be harmless.

Nonconstitutional error must be disregarded unless it affects a defendant's substantial rights. See Tex. R. App. P. 44.2(b). An error affects a defendant's substantial rights when the error has a substantial and injurious effect or influence on the jury's verdict. See King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). If the error had no or only a slight influence on the verdict, the error is harmless. See Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998).

When assessing harm, we consider `everything in the record, including any testimony or physical evidence admitted for the jury's consideration, the nature of the evidence supporting the verdict, the character of the alleged error and how it might be considered in connection with other evidence in the case.’ See Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000). We also consider the jury instructions given by the trial court, the State's theory and any defensive theories, closing arguments, and even voir dire, if material to the defendant's claim.
Kahlid Yusuf Worrell v. State, supra. 
The court goes on to point out that the
State produced overwhelming evidence of appellant's guilt. When the complainant was killed, the only other people in his home were his siblings and appellant. Dashawn testified that appellant was the only shooter, and the physical evidence supported that finding.

A total of eleven cartridge casings were recovered from the home. Ten of the casings were aluminum, and the eleventh was brass. A firearms expert testified that all eleven casings were fired from the same weapon—the gun found in appellant's vehicle. The aluminum casings matched the brand of ammunition that appellant purchased from Walmart. Moreover, the box of ammunition found in appellant's vehicle was missing exactly ten bullets. The State suggested that the bullet with the brass casing may have already been in the chamber when appellant loaded the magazine with the bullets with the aluminum casings.

The jury also heard testimony from one of appellant's coworkers that appellant had confessed to the murder. The coworker testified that appellant called him after the shooting, during a time when there was widespread media coverage of the killing. Appellant wanted the coworker to pick up appellant's paycheck, but the coworker declined. According to the coworker, appellant mentioned during their conversation that he was trying to hurt Dashawn and that the killing of the complainant was accidental.

The evidence of guilt in this case was strong and compelling. Appellant's role in an extraneous theft was not likely to move the jury from a state of non-persuasion to a state of persuasion.
Kahlid Yusuf Worrell v. State, supra. 
The Court of Appeals went on to explain that the
appellant was charged with murder, not theft, and because two offenses are dissimilar, there is a reduced chance that the jury would have convicted appellant based on a pattern of past conduct. We also note that the jury received a limiting instruction in the charge, which further reduced the chance that the conviction was based on an impermissible inference of character conformity. See Jones v. State, 944 S.W.2d 642, 654 (Tex. Crim. App. 1996).
Kahlid Yusuf Worrell v. State, supra. 
The court then took up the remaining issues in the case:
The State did not mention the extraneous theft during its closing argument. Neither did defense counsel, which means the jury probably gave little weight to it. See Lester v. State, 889 S.W.2d 592, 594 (Tex. App.—Houston [14th Dist.] 1994, pet. ref'd) (`Because the prosecutor did not mention the extraneous offense in her closing argument, the jurors probably gave little weight to it’).

However, defense counsel emphasized a different extraneous offense: the aggravated assault against Dashawn. Even though appellant did not testify, counsel accepted as true that appellant went to Walmart, that he purchased a box of ammunition, and that he then went into Dashawn's house with a loaded gun. Counsel said that all of those facts were `uncontroverted.’ What happened inside the house is where counsel's story differed from the State's. Counsel said that there was a two-person gunfight between Dashawn and appellant. Counsel's strongest piece of evidence in favor of this theory was the brass casing, which was found inside the bathroom. Counsel suggested that Dashawn must have fired the bullet from this casing (allocating all of the aluminum casings to appellant), meaning that Dashawn could have been responsible for the death of the complainant.

Counsel then argued that the State had overreached when it filed its criminal charges against appellant:

`Is he guilty of something? Damn straight. Yes, he is. Should he pay for what he did? Yes. But he should . . . pay for what he did, not for what the State has the power to charge him with. Because you know that there'[re] other offenses he can be charged with. Aggravated assault.

But appellant was not charged with the aggravated assault of Dashawn; he was charged instead with the murder of the complainant. By emphasizing this extraneous assault, counsel drew attention away from the extraneous theft and any unfair prejudice it might have created.
Based on the entire record, we cannot say that the evidence of the extraneous theft had a substantial and injurious effect on the jury's verdict. At most, the evidence only slightly influenced the jury. We conclude that any error in the admission of this evidence was harmless. See Johnson, 967 S.W.2d at 417.
Kahlid Yusuf Worrell v. State, supra. 

The Court of Appeals therefore held that the “trial court’s judgments are affirmed.” Kahlid Yusuf Worrell v. State, supra. 

Wednesday, January 11, 2017

Delinquency, the Tweets and the First Amendment

This post examines a recent opinion from the Colorado Court of Appeals:  People of Colorado In the Interest of R.D., Juvenile-Appellant, 2016 WL 7473807 (2016). This Wikipedia entry explains what juvenile courts are and how they differ from regular adult criminal courts.
The Court of Appeals begins its opinion by explaining that “R.D., a juvenile appeals the district court’s adjudication of delinquency.” In the Interest of R.D., supra. If you are interested, the site you can find here provides a clear, comprehensive overview of Colorado’s “criminal juvenile law.”  Among other things, the site cited in the previous sentence explains that Colorado law defines a “delinquent act” as a
`violation of the law over which juvenile court has jurisdiction is a delinquent act. This includes violations of state and federal statutes and court orders. There are certain violations of state law over which juvenile court does not have jurisdiction. These include non-felony state traffic laws, parks and recreation and game and fish laws or regulations; and offenses concerning tobacco products by an underage person. A juvenile who is charged with committing one of these offenses has his or her case heard in county court.’
The Court of Appeals’ opinion goes on to explain that
[t]his case arises out of an argument between students from Littleton High School and Thomas Jefferson High School on the social networking website Twitter. The argument began after a student from Thomas Jefferson High School posted a Tweet expressing support for Arapahoe High School after a shooting had occurred there. A student from Littleton High School Tweeted that students from Thomas Jefferson High School did not care about the shooting, leading to an argument between students from both schools.

As the argument progressed, R.D., a student at Littleton High School, joined the conversation. R.D. directed multiple Tweets at A.C., a student from Thomas Jefferson High School. These Tweets included:

• `[i]f I see your bitch ass outside of school you catching a bullet bitch’;
• `you a bitch, ill come to Tgay and kill you nigga’;
• `all you fuck niggas will get your ass beat real shit’; and
• `you think this shit a game, I'm not playing.’

R.D. also Tweeted a picture of a gun with the message `this all I'm saying. We don't want another incident like Arapahoe. My 9 never on vacation.’

A.C. directed multiple Tweets at R.D. in response. These Tweets included:
• `I'll see u tomorrow fuck boy];
• `you are all talk so go the fuck to bed come up to TJ and get slept’;
• `shoot then pussy’; and
• `you ain't never shot no one so sit down and get off google images bruh.’
In the Interest of R.D., supra.
The opinion then explains that, as noted above, the
People filed a petition in delinquency charging R.D. with conduct that if committed by an adult would constitute harassment by communication under section 18-9-111(1)(e), C.R.S. 2013. At a bench trial, A.C. and another student testified that they believed R.D.'s statements were threats. The district court adjudicated R.D. a juvenile delinquent based on conduct that would constitute harassment if committed by an adult.
In the Interest of R.D., supra.
The court goes on to explain that
R.D. argues that the application of section 18-9-111(1)(e) to his conduct violated his First Amendment right to free speech. The People respond that R.D.'s statements were not protected by the First Amendment because they were true threats and fighting words. We conclude that because R.D.'s statements were neither true threats nor fighting words, the statute as applied violated his right to free speech.
In the Interest of R.D., supra.
Before it began its analysis of R.D.’s First Amendment argument, the court noted that
[w]e review the constitutionality of a statute as applied de novoHinojos-Mendoza v. People, 169 P.3d 662, 668 (Colo. 2007); People v. Stanley, 170 P.3d 782, 787 (Colo. App. 2007). A statute is presumed to be constitutional, and the party challenging the statute has the burden of proving unconstitutionality beyond a reasonable doubt. People v. Janousek, 871 P.2d 1189, 1195 (Colo. 1994). Where a statute is not facially unconstitutional, a challenger must show that the statute is unconstitutional as applied to his or her conduct. People v. Baer, 973 P.2d 1225, 1231 (Colo. 1999).
In the Interest of R.D., supra.
The court then took up the First Amendment issue, explaining that the
First Amendment of the United States Constitution provides that “Congress shall make no law . . . abridging the freedom of speech.’ Colorado's counterpart to the First Amendment, article II, section 10 of the Colorado Constitution, provides that `[n]o law shall be passed impairing the freedom of speech.’

While the First Amendment protects the right to free speech, its protection is not absolute. Stanley, 170 P.3d at 786 (citing Virginia v. Black, 538 U.S. 343, 358 (2003)). Some categories of speech, such as true threats and fighting words, are unprotected by the First Amendment and, thus, may be regulated by the government. Id. (citing Black, 538 U.S. at 359); see also People in the Interest of K.W., 2012 COA 151, ¶ 30 (citing Cohen v. California, 403 U.S. 15, 20 (1971)). Because R.D. does not assert that he is entitled to greater protection under the Colorado Constitution, we address only the First Amendment.
In the Interest of R.D., supra.
The court went on to address the related issue of “true threats,” explaining that a
threat is a statement of purpose or intent to cause injury or harm to the person, property, or rights of another, by committing an unlawful act. People v. McIntier, 134 P.3d 467, 472 (Colo. App. 2005) (citing People v. Hickman, 988 P.2d 628, 637 (Colo. 1999)). But the critical inquiry is `whether the statements, viewed in the context in which they were spoken or written, constitute a true threat.’ Id. (quoting Janousek, 871 P.2d at 1198 (Mullarkey, J., specially concurring)). A true threat is not merely talk or jest, and it is evaluated `by whether those who hear or read the threat reasonably consider that an actual threat has been made.’ Id. (quoting Janousek, 871 P.2d at 1198 (Mullarkey, J., specially concurring)).’

While whether a statement is a true threat is a question of fact to be determined by the fact finder, where First Amendment concerns are implicated, the court has an obligation to make an independent review of the record to assure that the judgment does not impermissibly intrude on the field of free expression.
People v. Chase, 2013 COA 27, ¶ 70 (Colorado Court of Appeals 2013) (citations omitted).
In determining this, we first consider the plain import of the words used. Stanley, 170 P.3d at 790 (citing Janousek, 871 P.2d at 1195). Then we look to the context in which the statements were made. Id. (citing McIntier, 134 P.3d at 472). Among other contextual factors, we may consider (1) to whom the statement is communicated; (2) the manner in which the statement is communicated; and (3) the subjective reaction of the person whom the statement concerns. Id. (citing Watts v. United States, 394 U.S. 705, 708 (1969)).

After independently reviewing the record, we conclude that R.D.'s Tweets did not constitute true threats because they were not `a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.’ People v. Stanley, supra (quoting Virginia v. Black, supra). While the language of R.D.'s Tweets was violent and explicit, the context in which the statements were made mitigated their tone in three ways. Id. (citing People v. McIntier, supra).
In the Interest of R.D., supra.
The Court of Appeals went on to explain how the context in which the statements were made “mitigated their tone”, as noted above. In the Interest of R.D., supra. It noted that the
first contextual factor we consider is to whom the statements were communicated. R.D. Tweeted `you don't even know me. Mf I don't even know were tf your lame bitch ass school is.’ This Tweet showed that he did not know A.C. personally and did not know where Thomas Jefferson High School was located. 

See Chase, ¶ 73 (stating that defendant personally knowing the victims and knowing where they lived supported the conclusion that his e-mails were true threats). And, R.D. never referred to A.C. by name. He addressed him only by his Twitter username of `iTweetYouShutUp.’ See id. (finding that defendant expressly referred to the named victims in his e-mails supported the conclusion that the e-mails were true threats).
In the Interest of R.D., supra (emphasis in the original).
The Court of Appeals then explained that,
[n]ext we consider the manner in which the statements were communicated. R.D. posted his messages to Twitter, a public forum. While he did use `@’ to direct his messages toward A.C., the messages could be viewed on R.D.'s Twitter homepage and were not sent to A.C. in a private message. 

So, Tweets can be differentiated from e-mails and other social media messages, which are sent directly — and usually privately — to a person or specified group of people. See id. at ¶ 74 (e-mails sent to named victims can constitute a true threat).
In the Interest of R.D., supra.
The court then noted that,
[f]inally, we consider the subjective reaction of the person whom the statements concern. When R.D. indicated that he did not know where Thomas Jefferson High School was located, A.C. responded by Tweeting the school's address: `3950 S. Holly street. I'll see u tomorrow fuck boy.’ A.C. subsequently Tweeted `you are all talk so go the fuck to bed come up to TJ and get slept” and “shoot then pussy.’ And, when R.D. Tweeted a picture of a gun, A.C. responded `you ain't never shot no one so sit down and get off google images bruh.’ 
In the Interest of R.D., supra.
The opinion goes on to explain that
A.C.'s Tweets demonstrate that he did not appear threatened by R.D.'s Tweets and that he did not take precautionary measures to protect himself from R.D. See id. at ¶ 73 (stating that victims having taken specific precautionary measures to protect themselves from defendant supported the conclusion that his e-mails were true threats).

While A.C. later testified that he believed R.D.'s Tweets were threats against him, the critical inquiry in true threat analysis is `whether the statements, viewed in the context in which they were spoken or written, constitute a “true threat.’ McIntier, 134 P.3d at 472 (quoting Janousek, 871 P.2d at 1198 (Mullarkey, J., specially concurring)). A.C.'s reaction to R.D.'s Tweets shows that he did not view the statements as true threats when they were received.

In sum, based on the context in which R.D.'s statements were made, we conclude that the Tweets did not constitute true threats.
In the Interest of R.D., supra.
The Court of Appeals then took up the next issue: “fighting words.” In the Interest of R.D., supra. It explained that
[f[ighting words are `personal abusive epithets that when directed to the ordinary citizen are inherently likely to provoke a violent reaction.’ K.W., ¶ 30 (citing Cohen, 403 U.S. at 20). In determining whether a statement constitutes fighting words, again we must consider `[t]he context or circumstances in which the language is used.’ Id. (citing FCC v. Pacifica Found., 438U.S. 726, 745 (1978)).
In the Interest of R.D., supra.
The opinion goes on to articulate the Court of Appeal’s holding on this final issue:
After independently reviewing the record, we conclude that R.D.'s Tweets did not constitute fighting words. Fighting words, by their definition, can occur only when the speaker is in close physical proximity to the recipient. Statements that are made from a distance cannot `incite an immediate breach of the peace’ because a remote recipient would necessarily have a cooling off period before he or she could confront the speaker. Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942). Even a brief cooling off period ensures that statements will not `incite an immediate breach of the peace.’ Id. (emphasis added).

While this issue has not been specifically addressed in Colorado, a number of states have concluded that `[t]he potential to elicit an immediate violent response exists only where the communication occurs face-to-face or in close physical proximity.’ City of Billings v. Nelson, 322 P.3d 1039, 1045 (Mont. 2014); see also Citizen Publ'g Co. v. Miller, 115 P.3d 107, 113 (Ariz. 2005) (`This case does not fall within the fighting words exception to the First Amendment. The statements at issue were made in a letter to the editor, not in a face-to-face confrontation with the target of the remarks’); State v. Drahota, 788 N.W.2d 796, 804 (Neb. 2010) (`[E]ven if a fact finder could conclude that in a face-to-face confrontation, [defendant's] speech would have provoked an immediate retaliation, [the recipient] could not have immediately retaliated. [He] did not know who sent the e-mails, let alone where to find the author’); but see Davidson v. Seneca Crossing Section II Homeowner's Ass'n, 979 A.2d 260, 283 (Md. Ct. Spec. App. 2009) (upholding a permanent injunction prohibiting the sending of e-mails and letters based on the fighting words doctrine, where the enjoined party also engaged in verbal attacks and made vulgar gestures in the presence of the parties requesting the injunction).

We consider these cases well reasoned and follow them here. So, because R.D. was not in close physical proximity to A.C. at the time of the incident, his Tweets could not have constituted fighting words.

Because we have concluded that R.D.'s Tweets were not true threats or fighting words, applying section 18-9-111(1)(e), C.R.S. 2013, to R.D.'s conduct violated his First Amendment rights. For these reasons, we further conclude that the statute is unconstitutional as applied.
In the Interest of R.D., supra.


Monday, January 09, 2017

Sexual Assault on a Child, Lime Wire and the Remote Computer Search

This post examines a very recent opinion from the Colorado Court of Appeals – Division VII: People v. Phipps, 2016 WL 7473811 (2016).  The court begins by explaining that
[b]ased on a plea agreement in which many other serious charges were dismissed, defendant, Randy Scott Phipps, pleaded guilty to sexual assault on a child. He was sentenced to an indeterminate prison term of seventeen years to life. Phipps then sought postconviction relief under Criminal Procedure 35(c), claiming ineffective assistance of counsel. The district court denied his motion without holding a hearing.
People v. Phipps, supra.
The Court of Appeals then noted that “Phipps asserts on appeal that the district court (1) was required to hold a hearing on his motion and (2) erred in rejecting his ineffective assistance of counsel claims.” People v. Phipps, supra. We will come back to that issue later.
The opinion goes on to explain how, and why, the prosecution arose and how, and why, Phipps was convicted.  People v. Phipps, supra. As the court explains,
[d]uring an investigation to detect child pornography shared over the Internet, the police remotely searched a computer onto which at least two files depicting child pornography had been downloaded. Using that computer's Internet Protocol (IP) address, the police determined that the computer was located in Phipps' home. The police obtained and executed a search warrant of Phipps' home.

Phipps was not home at the time of the search, but an officer spoke with him on the phone during the search and explained why his home was being searched. During that recorded phone call, Phipps admitted that he stored child pornography on his computer and that once the officer searched his computer, `his life was over.’ The police seized Phipps' computer, on which they found over thirty videos of children engaged in sexual acts.

One of these videos depicted Phipps' stepdaughter when she was approximately eight or nine years old. She was mostly nude, and the video showed Phipps instructing her to use sex toys as well as Phipps using sex toys on her. In her police interview, Phipps' stepdaughter identified herself and Phipps in the video and stated that Phipps had sexually assaulted her numerous times.
People v. Phipps, supra.
The court goes on to explain that
Phipps was charged with sexual assault on a child (position of trust –pattern of abuse) under sections 18-3-405.3(1), (2)(b), C.R.S. 2016; aggravated incest under section 18-6-302(1)(a), C.R.S. 2016; sexual exploitation of a child (inducement) under section 18-6-403(3)(a), C.R.S. 2016; and sexual exploitation of children (possession) under section 18-6-403(3)(b.5). The court found Phipps indigent and appointed counsel to represent him.

A plea agreement was negotiated and Phipps pleaded guilty to the sexual assault charge. In exchange, the district attorney dismissed the remaining charges and promised that the United States Attorney would not prosecute Phipps on child pornography charges.

At the sentencing hearing, Phipps took full responsibility for his crimes. He stated that he did not wish to put his family through a `horrific ordeal with a jury trial,’ and that his `remorse, regrets, shame, despair, sadness, and sorrow cannot be measured.’
People v. Phipps, supra.
On appeal, Phipps argued that his trial attorney was ineffective, among other reasons, because he “failed to challenge the legality of the initial, remote search of Phipps' computer, which violated his Fourth Amendment rights.” People v. Phipps, supra. That is the only argument he made on appeal that is examined in this post.
The Court of Appeals went on to explain that Phipps
argues that if not for the constitutionally deficient conduct of his counsel he would not have pleaded guilty to sexual assault on a child, and he contends that the district court erred in concluding otherwise without holding a hearing.

The United States and Colorado Constitutions guarantee a criminal defendant's right to receive reasonably effective assistance of counsel. U.S. Const. amends. VI, XIV;  Colo. Const. art. II, § 16; [Strickland v.Washington, 466 U.S. 668, 685-86 (1984)]; People v. Norman, 703 P.2d 1261, 1272 (Colo. 1985). To prevail on an ineffective assistance of counsel claim, the defendant must establish that (1) counsel's performance was constitutionally deficient and (2) the deficient performance resulted in prejudice to the defendant. Strickland, 466 U.S. at 687; Ardolino v. People, 69 P.3d 73, 76 (Colo. 2003).

To satisfy the prejudice prong in the context of a guilty plea, the defendant must show that there is a reasonable probability that `but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.’ People v. Stovall, 2012 COA 7, ¶ 19 (citation omitted).

In determining whether counsel's performance was deficient, we evaluate the representation from counsel's perspective at the time of the representation, and we `indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.’ Ardolino v. People, 69 P.3d 73, 76 (Colorado Supreme Court).

To prove deficient performance, the defendant must overcome the presumption that, under the circumstances, the challenged action might be sound trial strategy. Davis v. People, 871 P.2d 769, 772 (Colo. 1994) (citing Strickland, 466 U.S. at 689); People v. Lopez, 2015 COA 45, ¶ 59. With regard to trial strategy, defense counsel has final authority to make strategic or tactical decisions, including `what strategy should be employed in the defense of the case.’ Arko v. People, 183 P.3d 555, 558 (Colorado Supreme Court 2008) (quoting Steward v. People, 179 Colo. 31, 34, 498 P.2d 933, 934 (1972)).
People v. Phipps, supra.
The court then took up the issue Phipps raised in his that this post examines – the remote computer search. People v. Phipps, supra.  The court began its analysis of the issue by explaining that
We first address Phipps' argument that his counsel provided deficient representation when he failed to challenge the legality of the initial, remote search of his computer. The district court rejected this claim, concluding that there was no arguable basis to make such a challenge and that the challenge inevitably would have failed.

The police initially discovered child pornography on Phipps' computer by using LimeWire, which is a `peer-to-peer file sharing application that connects users who wish to share data files with one another.’ United States v. Stults, 575 F.3d 834, 842 (U.S. Court of Appeals for the 8th Circuit 2009) (quoting United States v. Lewis, 554 F.3d 208, 211 (U.S. Court of Appeals for the 1st Circuit 2009)).

The Eighth Circuit described the operation of LimeWire software as follows:

`When a user wants to download files from other users, he launches LimeWire and inputs a search term or terms. The application then seeks matches for those terms in the file names and descriptions of all files designated for sharing on all computers then running the LimeWire application. . . . LimeWire will then display a list of file names that match the search terms, and the user can select one or more of those to begin downloading the files.
Id. (citations and alteration omitted).’
People v. Phipps, supra.
The Court of Appeals went on to explain that the argument Phipps made with regard to the remote computer search was predicated on the Fourth Amendment to the U.S. Constitution. People v. Phipps, supra. As Wikipedia’s entry on the Fourth Amendment explains, the amendment
prohibits unreasonable searches and seizures. It requires governmental searches and seizures to be conducted only upon issuance of a warrant, judicially sanctioned by probable cause, supported by oath or affirmation, describing the place to be searched and the persons or things to be seized. 
Getting back to the Court of Appeals’ opinion, the court goes on to explain that
[w]hen the police conducted the initial Internet search of computers to uncover child pornography, they did not have a warrant to search any particular computer. Phipps contends that the initial discovery of child pornography files on his computer constituted a warrantless search that violated the Fourth Amendment.

A search violates the Fourth Amendment only when the defendant has a `legitimate expectation of privacy in the areas searched or the items seized.’ People v. Curtis, 959 P.2d 434, 437 (Colorado Supreme Court 1998) (citation omitted). No Colorado appellate court has addressed whether a person has a legitimate expectation of privacy in computer files accessed through peer-to-peer sharing software such as LimeWire. However, federal and other state courts have uniformly held that a person who installs and uses file sharing software does not have a reasonable expectation of privacy in those files. 
People v. Phipps, supra.
As Wikipedia’s entry on the Fourth Amendment explains, to constitute a Fourth Amendment “search,” the law enforcement activity has to violate someone’s “reasonable expectation of privacy” in the place or thing searched.  
The Court of Appeals goes on to explain that the
leading case is United States v. Ganoe, 538 F.3d 1117, 1127 (9th Cir. 2008). There, the court held that while, generally, an individual has a reasonable expectation of privacy in his or her personal computer, that expectation does not survive the installation and use of file sharing software, such as LimeWire, at least with respect to the files made available through the file sharing software. Id.see also United States v. Borowy, 595 F.3d 1045 (9th Cir. 2010).
In [United States v. Stults], 575 F.3d 834, 843 (U.S. Court of Appeals for the 8th Circuit 2009), the Eighth Circuit similarly held that the defendant did not have a `reasonable expectation of privacy in files that the FBI retrieved from his personal computer where [the defendant] admittedly installed and used LimeWire to make his files accessible to others for file sharing.’ The court analogized the defendant's actions to giving his house keys to all of his friends, and concluded that he `should not be surprised should some of them open the door without knocking.’ Id.
People v. Phipps, supra.
The court goes on to explain that
[o]ther federal and state courts have reached the same result. See United States v. Conner, 521 F. App'x 493, 498 (6th Cir. 2013) (computer user had no reasonable expectation of privacy in the contents of files that had been downloaded to a publicly accessible folder through file sharing software); United States v. Perrine, 518 F.3d 1196, 1205 (10th Cir. 2008) (same); State v. Welch, 340 P.3d 387, 391 (Ariz. Ct. App. 2014); State v. Aston, 125 So. 3d 1148, 1154 (La. Ct. App. 2013) (same); State v. Peppin, 347 P.3d 906, 911 (Wash. Ct. App. 2015) (same). Indeed, we have found no reported case that has held that a computer owner has a reasonable expectation of privacy in files that he or she makes available through software such as LimeWire.
People v. Phipps, supra.
The opinion goes on to explain that Phipps
argues that he nevertheless retained a reasonable expectation of privacy in his computer files because he was not aware that the files stored on his computer were publicly accessible through LimeWire, and that, therefore, he did not `knowingly or intelligently allow[ ] private files and information on his PC to be broadcast out to the network and web.’ The Ninth Circuit Court of Appeals rejected a similar argument in Borowy. In that case, the defendant had installed a feature which allowed him to prevent others from downloading or viewing his files, but that feature was not engaged when the police located the files. Borowy, 595 F.3d at 1047. The court concluded that because the files were `still entirely exposed to public view,’ the defendant's `subjective intention not to share his files did not create an objectively reasonable expectation of privacy in the face of such widespread public access.’ Id. at 1048. We agree with this analysis.

Consistent with these cases, we hold that Phipps did not have a reasonable expectation of privacy in the files that he made available for public viewing through LimeWire. Because Phipps did not have a reasonable expectation of privacy in those files, his counsel's failure to challenge the search on Fourth Amendment grounds, even if deficient, could not have constituted Strickland prejudice.
People v. Phipps, supra. This Wikipedia entry explains “Strickland prejudice.”
For these and other reasons, the Court of Appeals affirmed the “district court's order denying Phipps' motion for postconviction relief under Crim. P. 35(c)”.  People v. Phipps, supra.