April 28, 2006 The supreme court will issue no new decisions on Monday, but it will issue announcements on cert. petitions. Here are yesterday's court of appeals' announcements. The court issued unpublished decisions only. I'm hoping to get everything else updated by the end of the day Monday. Thanks for your patience. April 26, 2006 The court of appeals will release the following unpublished decisions tomorrow: No.: 02CA1975 People v. Keith Crumley April 24, 2006 Here
are today's supreme court announcements. The court issued 4 decisions
and granted cert. in one case, No. 05SC682, Hodges v. People, on this
issue: Whether the court of appeals erred in interpreting C.R.S. 21-2-101(1). I will try to get summaries of the new decisions (as well as last week's court of appeals' decisions) by the end of the week. Work continues to get in the way of blogging, at least for this week.
April 21, 2006 The supreme court will issue the following decisions on Monday: 06SA58 People v. Dixon (no orals) April 20, 2006 The court of appeals' announcements for today are here. The court issued 13 published decisions. I will summarize those as soon as I can. I apologize for not getting to them today (or tomorrow), but I have been and will be tied up in court and other non-blogging activities. The 9 finalists for the 3 new judgeships on the court of appeals are listed here. The governor has until May 4th to appoint 3. April 18, 2006 The supreme court's argument schedule for the 2006-07 term is here. The court will hold arguments on the following dates: 2006: September 12-14, October 24-26, December 5-7 2007: January 23-25, March 6-8, May 1-3, June 12-14 April 17, 2006 Here is the court of appeals' argument calendar for June 2006. The supreme court's announcements for today are here. The court issued one decision, summarized below, and granted cert. in two cases. The questions presented in those cases follow the case summary. In an interlocutory
appeal by the People, the court partially reversed a suppression order.
While accepting the trial court's findings of fact, the court rejected
the trial court's conclusion that Defendant did not voluntarily waiver
her Miranda rights. The court did agree, however, with the trial court's
conclusion that statements made after the defendant was advised of the
death of the victim were involuntary. Justice Coats, joined by Justice
Eid, dissented on the voluntariness. Justice Coats criticiezed the majoirty's
deference to the trial court: "Until today’s holding –
that we defer to a trial court’s conclusion of involuntariness
whenever its factual determinations include coercion and susceptibility,
maj. op. at 29 – it therefore appeared to be settled that a trial
court’s application of the due process standard to find statements
involuntary was in the nature of a mixed question of fact and law and
was subject to plenary review." Justice Coats reasoned that under
de novo review, the statements were voluntary and should not have been
suppressed: "if the majority had exercised its independent legal
judgment (as I believe it was obliged to do), the The court granted cert. in these cases: Silva v. People, No. 05SC519 Whether Petitioner has a constitutional right to assistance of counsel in pursuit of postconviction relief, and thus effective assistance of counsel under the Due Process and Equal Protections Clauses of the Fourteenth Amendment to the United States Constitution and Art. II, section 25 of the Colorado Constitution.
Whether the Colorado Court of Appeals erred in not reaching the merits of Petitioner’s other claims raised in his appeal of the denial of his application for postconviction relief under Crim.P. Rule 35(c) and not remanding those claims to the trial court to issue findings of fact and conclusions of law in accordance with Crim. P. 35(c)(3)(IV).
Whether a due process violation can arise from the simple appointment of postconviction counsel with a conflict of interest that the trial court “should have known about.” City of Florence v. Pepper, No. 05SC812: Whether section 8-40-202(1)(a)(I)(A), C.R.S. (2005), violates equal
protection guarantees by granting counties and municipalities the option
of providing workers’ compensation insurance coverage to volunteer
reserve police officers.
April 13, 2006 Here are today's court of appeals announcements. The court issued only unpublished decisions. April 12, 2006 The court of appeals will release the following unpublished decisions tomorrow: UNPUBLISHED OPINIONS No.: 03CA0600 People v. Solomon Lopez-Martinez April 10, 2006 The supreme court's oral argument schedule for May is here. The court will hold arguments May 1, 3 and 4. The supreme court's announcements for today are here. The court issed two decisions, summarized below. The court also granted cert. in a whopping 10 cases (though three of them involve the same issue), and the questions in those cases follow the case summaries. Criminal impersonation
provision C.R.S. §18-5-113(1)(e) criminalizes a defendant’s
knowing use of a false or fictitious identity or capacity with the intent
to unlawfully gain a benefit for himself or another person or to injure
or defraud another person. The court rejected the defendant's argument
that this provision requires two acts for conviction (1) the act of
impersonation and (2) the act from which a defendant intends to receive
a benefit. Instead, the court held that the provision proscribes an
act of criminal impersonation that involves a requirement for the prosecution
to prove two culpable mental states (knowingly assuming a false identity
with the intent to unlawfully gain a benefit). Justice Bender dissented,
concluding the plain language of
The court granted cert. in the following cases: Fletcher v. People, No. 05SC646: Whether evidence of an alleged victim’s virginity in a sexual assault trial is inadmissible character evidence pursuant to C.R.E. 404(a)(2), inadmissible because it is irrelevant pursuant to C.R.E. 402, or unfairly prejudicial pursuant to C.R.E. 403.
Whether evidence of an alleged victim’s virginity constitutes “prior sexual conduct,” that is presumptively irrelevant and inadmissible under Colorado’s Rape Shield Statute, section 18-3-407(1), C.R.S. (2005), and whether the proponent of such evidence must comply with the notice and hearing provisions of the statute. City of Colorado Springs v. Powell, No. 05SC743, City of Colorado Springs v. Speight Family Partnership, No. 05SC744, City of Longmont v. Henry-Hobbs, No. 05SC746: Whether the court of appeals correctly determined that House Bill 03-1288 is prospective in application.
Trimble v. People, No. 05SC762: Whether the court of appeals erred in reviewing for plain error petitioner’s Confrontation Clause issues raised under Crawford v. Washington when the petitioner raised a contemporaneous general hearsay objection, he raised the confrontation issues at the close of the People’s case, and Crawford had not been issued at the time the hearsay was admitted.
Whether an excited utterance made to a police officer investigating a crime scene by a non-testifying declarant witness can be deemed testimonial hearsay under Crawford v. Washington. Andersen v. Lindenbaum, No. 05SC774: Whether the court of appeals properly adopted and applied the “sham affidavit” rule in affirming the trial court’s grant of summary judgment. Chambers v. People, No. 05SC828:
Whether the court of appeals erred in its conclusion that it is necessary to make a specific confrontation clause objection, beyond “hearsay,” to preserve the constitutional claim.
Whether the courts below erred in finding the out-of-court statements in the 911 and dispatch tapes to be admissible. In re Marriage of Gutfruend, No. 05SC902: Whether the court of appeals correctly determined that the deposit of funds into the court registry does not stop post-judgment interest from accruing if the funds are not available to the judgment creditor.
Whether the court of appeals correctly determined that a party has standing to seek post-judgment interest on an award of attorneys’ fees when the attorney has abandoned any interest in the award. People v. Lehnert, No. 05SC916: Whether the evidence was insufficient to show that the defendant took a substantial step toward murder, as required for conviction for attempted first-degree murder. D.H. v. People, No. 06SC75: Whether the court of appeals correctly determined that Petitioner waived her right to appeal the Amended Order Terminating Maternal Rights by failing to raise her claim before the district court.
Whether the Amended Order Terminating Maternal Rights constituted a final judgment within the meaning of C.A.R. 1(a).
Whether Petitioner demonstrated excusable neglect sufficient to warrant the excusal of her failure to seek review of the Amended Order Terminating Maternal Rights within five days.
Whether the court of appeals correctly determined that Petitioner waived her ineffective assistance of counsel claim by failing to raise her claim before the district court. April 7, 2006 The supreme court will issue two decisions on Monday, No. 05SA299, People v. Reed (no orals), and No. 04SC868, Alvarado v. People. Here are the
summaries of yesterday's published court of appeals decisions: Colorado's habitual offender sentencing scheme is not unconstitutional. The court rejected the defendant's arguments that it is unconstitutional for the court, rather than a jury, to find (1) that prior convictions were based on charges separately brought and tried, (2) that they arose out of separate and distinct criminal episodes, and (3) that the accused was the person named in each prior conviction. The court concluded that there was no "impermissible judicial factfinding" underlying defendant's habitual criminal sentence. The court said that, even recognizing that, there may be facts "about" a prior conviction that would have to be found by a jury, this case did not present such a situation. That defendant was convicted of more than three prior felonies"based upon charges separately brought and tried" and "arising out of separate and distinct criminal episodes" was definitively established based on the judicial records introduced at the habitual criminal trial. People v. Nunn The trial court did not commit plain error by not issuing a limiting instruction to the jury regarding a prior act of domestic violence. The court also held that while third degree assault is not a crime of violence, it is an extraordinary risk crime, and under the sentencing statute in effect at the time of the defendant's offense, the sentencing range for third degree assault was increased by six months to a maximum of twenty-four months. The court therefore affirmed defendant's sentence on third degree assault. The court did however, agree that the mittimus needed to be corrected to remove the domestic violation notation because sentencing provisions for domestic violence in C.R.S. § 18-6-801(1) did not apply to his case since his entire sentence was to be served in the DOC. People v. Torres District court abused its discretion under the circumstances of the case by denying motion to vacate arbitration award based on fraud claim without providing movant the opportunity to present all its evidence. The district court had set the motion for an evidentiary hearing, but then denied the motion to vacate two weeks before the hearing, without first affording the movant the opportunity to provide additional evidence. Therefore, the court remanded to the district court for the parties to submit additional evidence on the motion to vacate. BFN-Greeley, LLC v. Adair Group, Inc. Trial court erred in determining as a matter of law that defendant landlord was not a "landowner" under the Premises Liability Act. The provisions of the lease supported the conclusion that defendant was "a person in possession" of the premises because (1) the tenants had surrendered their right to exclusive possession and control over the property in such a way as to share control with the landlord, and (2) the landlord had reserved the power or authority to manage, superintend, direct, or oversee repairs on the premises. Under the circumstances, there were issues of fact that precluded summary judgment in favor of the landlord. The court also concluded, however, that the landlord did not independently qualify as a "landowner" under the Premises Liability Act, rejecting the plaintiff's argument that the landlord was "legally responsible" for the condition of the property. Nordin v. Madden Trial court erred in failing to award wife the amount she would have received from husband's military pay had he not applied for, and received, disability benefits. Wife was entitled to that relief based on the provisions of the couple's separation agreement. The court concluded that the Uniformed Services Former Spouses' Protection Act and Supreme Court decisions did not require courts to completely ignore the economic consequences of a military retiree's decision to waive retirement pay in order to collect disability pay. In re Marriage of Warkocz District court did not abuse its discretion in denying motion for sanctions for spoliation of evidence. The evidence, a mirrored-column that had fallen on the plaintiff at a nighclub, was retained for a year and a half after the accident, was discarded before the complaint was filed and defendant had not been given clear, prompt notice that a complaint would be filed. Castillo v. The Chief Alternative, LLC C.R.S. § 43-4-506(1)(h)(II)(B) is a fee and cost-shifting statute. In determining whether to award fees under that provision, the trial court properly considered whether fees sought were "reasonably necessary." E-470 Public Highway Authority v. Revenig Insurer had
a duty to inform insureds, when they purchased their policy, that they
could purchase Temporary protective
custody orders, like other temporary orders, are interim orders pending
a final factual determination of the allegations set forth in the petition
in dependency or neglect. April 6, 2006 Here are today's court of appeals case announcements. The court issued nine published decisions, which I will summarize by Monday. I will be in court today and won't be able to get summarizing before Friday. April 5, 2006 Okay. I'm caught up. The list of decisions the court of appeals will issue tomorrow appears below. And below that list are the updates I missed while on vacation. The court of appeals will release the following decisions tomorrow: PUBLISHED OPINIONS No.: 03CA0939 People v. Ralph R. Nunn UNPUBLISHED OPINIONS No.: 03CA1166 People v. Michael D. McKnight Here are the updates I missed while on vacation: April 3, 2006 supreme court announcements. The court issued one decision and granted cert in one case: In a water decision, the court concluded that rights represented by a contract were not water rights with a statutory right to change use. The contract at issue did not specifically grant the right to change the use of the subject water. Because the contractually-delivered water rights are “far different” than a water right acquired by original appropriation, diversion, and application to beneficial use, the court declined to interpret the silence as granting the right to change the use of the water. Thus, the holder of the contractually-delivered water right may not change its use without the consent of its holder. The court also held that the plan for augmentation did not violate the contract’s terms prohibiting a change in the point of diversion for the subject water. Justice Coats, joined by Justice Eid, concurred in part and dissented in part, concluding that the plan for augmentation did violate the contract. Public Serv. Co. v. Meadow Island Ditch Co. No. 2 The court granted cert. in Raile v. People, No. 05SC756, on this question:
Whether the court of appeals erred in holding that the hearsay declarant’s statements to the investigating officer were not testimonial. March 30, 2006 court of appeals' announcements (unpublished decisions only). March 23, 2006 court of appeals summaries: A convicted felon is not automatically disqualiifed from serving on a jury. The court held that C.R.S. § 13-71-105(2) does not include felony convictions as a ground for disqualifying a potential juror. Moreover, § 13-71-105(3), the only section of the juror qualification statute that addresses felony convictions, specifically states that only prospective grand jurors are subject to disqualification for prior felony convictions. In addition, the court held that the trial court did not err in seating the juror even though she was not on the county voter registration. People v. Ellis Engineer who sued railroad for negligence based on its failure to provide him with a reasonably safe work environment was not required to file a certificate of review or to present evidence regarding a medical standard of care because he did not file a medical malpractice claim. Nichols v. Burlington Northern and Santa Fe Railway Defendant charged
with attempted sexual assault on a child and enticement was not entitled
to raise entrapment as an affirmative defense. Defendant did not admit
that he believed the “victim” to be under the age of fifteen
years. Therefore, he did not admit to all of the elements of attempted
sexual assault on a child or enticement of a child, and thus was not
entitled to assert entrapment. Trial court did not err in directing a verdict against the plaintiff on a premises liability claim where the court determined that plaintiff was trespassing on the motel property where he was injured. The trial court found that plaintiff had a standing invitation from a motel resident to enter the property for social visits. But the court also found that plaintiff had returned to the motel, not for a social visit, but for the purpose of fighting the man with whom he had previously argued. Because this purpose was outside the scope of permission given by the motel resident, and because plaintiff was not on the premises for any other lawful reason, the court properly determined that plaintiff was a trespasser when he was injured. Chapman v. Willey The marital
communications privilege is personal to the spouses and may not be invoked
by a third party. The court also held that prejudgment interest cannot
be awarded on future profits. Finally, the court concluded that C.R.S.
§13-33-102(4), which allows the award of expert Failure to respond to request for admission resulted in factual matter being deemed admitted, and led to summary judgment on statute of limitations grounds against plaintiff. The court of appeals upheld the summary judgment. Grynberg, d/b/a Grynberg Petroleum Company v. Karlin District court
did not err in determining that notices of stepparent adoption petition
issued to the biological father, and served upon him under C.R.S. §
19-5-203(1)(d)(II), were sufficient to vest April 4, 2006 I'm back. I was on vacation through yesterday and did not have blogging capabilities (nor frankly the desire to do so while on vacation). In addition, right before my vacation, my firm was updating some computer things (don't ask me what), which meant I was out of blogging commission for that period as well. So I have some catching up to do on my posting. I will have summaries of the March 23rd court of appeals decisions and yesterday's supreme court decision sometime this week and I hope to also have the new court of appeals decisions summarized after they come out on Thursday. Thanks for your patience. Once I get through the mountain of work on my desk, I hope to update you with some actual substantive information.
|
|||||||||||||||||||||||||