December 29, 2004 This will be my last post for 2004. The court of appeals will be releasing decisions tomorrow, and the case announcements can be accessed here as of 8 a.m. (give or take) on December 30. I won't be doing summaries tomorrow, as I am taking the day off to spend with my son (think tickets, tokens, tubes and slides--and, of course, french fries). But I will summarize any published decisions some time next week. I thank you all for a great 2004 and for your support and comments, and I wish you all a Happy New Year. Drive safe, be safe. December 27, 2004 Here
are the supreme court case announcements for today. The court issued
no decisions and did not grant cert. in any cases. December 23, 2004 The court of appeals case announcements for today are here. The court issued only unpublished decisions. December 22, 2004 The court of appeals will announce the following unpublished decisions tomorrow. The court will not be issuing any published decisions. Unpublished Opinions No.: 02CA0171 People v. Miguel Trimble December 20, 2004 The Colorado state courts will be closed on December 24 and 31. Here are today's supreme court case announcements. The court issued one decision, summarized below. The court also modified its decision in People v. Cunefare, and denied a petition for rehearing in that case. The modified decision can be found here. Finally, the court granted cert. in two cases, and the issues in those appeals follow the case summary. In an appeal from a district court appeal in a DWAI case, exceptional circumstances were not present to justify the officer's failure to comply with the defendant's request for a blood test under C.R.S. § 42-4-1301(7) (the express consent statute). The defendant requested the blood test but the service provider for the sheriff's office was unable to provide the test. The officer then offered to conduct a breath test on the defendant. The supreme court said that there was no evidence that extraordinary circumstances prevented the service provider from performing the test: "Inconvenience, a busy work load or delay do not suffice to comprise extraordinary circumstances sufficient to excuse compliance with the statute." The court noted that "once the driver has made his choice [of the type of test to be performed] he has neither the responsibility nor the right to elect an alternative form of chemical test." Riley v. People The court granted cert. in these cases: People v. Vigil, No. 04SC532, on these issues:
Whether a child victim’s statements to a treating physician during a sexual assault examination constitute “testimonial” evidence pursuant to Crawford v. Washington, 124 S.Ct. 1354 (2004).
Whether the crime of child sexual assault encompasses a specific intent mental state, thereby entitling a defendant charged with that crime to an intoxication instruction, even though the statute defining the offenses uses the term “knowingly.”
Whether the court of appeals misapprehended harmless error analysis when it determined that the admission of the child victim’s videotaped police interview was not harmless beyond a reasonable doubt.
Whether the court of appeals erred in holding that admission of the alleged victim’s hearsay statements to his father and his father’s friend did not violate the cross-petitioner’s constitutional right of confrontation where the child was unavailable to testify at trial. Shepler v. Whalen,
No. 04SC553, on these issues: Whether a judgment debtor that fraudulently pays off a promissory note encumbering real property already titled in the name of the debtor’s spouse holds an equitable interest to which creditors’ recorded transcripts of judgment may attach.
Whether a junior judgment creditor is entitled to priority over senior judgment creditors where the junior judgment creditor first obtained an equitable lien against real property titled in a third person but tainted by a judgment debtor’s fraud.
December 16, 2004 Here are today's court of appeals announcements. The court issued 10 published decisions, (including the appeal of Terry Lynn Barton, who was convicted of starting the Hayman fire)and many unpublished ones. The published opinions are summarized below. C.R.S. § 18-4-405 does not permit recovery of real property obtained by fraud or deception when record title is held by a good faith purchaser. Strekal v. Espe Failure of trial court to advise defendant, under Crim P. 32(c), of his right to appeal does not automatically entitle defendant to obtain a late appeal. Instead, defendant must file a timely postconviction action under Crim P. 35(c) and request the remedy of a new appeal. If the trial court determines that a potential error occurred and prejudiced the defendant, then the trial court should vacate the initial sentence and summarily reimpose the same sentencing judgment. This summary resentencing will re-trigger the 45-day period in which to file an appeal. On a different issue the court of appeals held that Blakely did not apply because the defendant's sentences were final before Apprendi was announced. Finally, the court concluded that the defendant's loss of the right to vote during his imprisonment was a collateral consequence of his guilty plea that did not require an advisement. People v. Boespflug Admission of evidence about gangs and gang culture, including lay opinion on the subject by two police officers, was not error, and would have been harmless even if error. People v. James In accordance with C.R.C.P. 54(b), when there are no active or contested claims against an estate, administration of the estate need not be completed before a probate court's judgment regarding all pending claims and parties is final for appellate purposes. On the facts of the case, the court held that the appeal was timely. Judge Casebolt dissented, concluding that the notice of appeal was untimely, and therefore that the appeal should be dismissed for lack of jurisdiction. The majority held on the merits that the trial court erred in granting partial summary judgment. Though I'm no psychic, I predict this case is likely to receive supreme court review on the jurisdictional issue. In the Matter of the Estate of Scott Hayman fire defendant's sentence vacated. The court of appeals concluded, under Blakely v. Washington, that her sentence could not stand because the judge found aggravating circumstances, rather than a jury. In addition, due to certain comments by the sentencing judge and due to the personal effect the fire had on the judge, the court of appeals ordered resentencing to be conducted by another judge. People v. Barton Conduct found offensive to the authority and dignity of the court under C.R.C.P. 107 is not criminal conduct, and contempt is not a statutory criminal offense. Instead, the power to impose punitive sanctions is an inherent and indispensable power of the court. Therefore, permitting opposing counsel, rather than the district attorney, to prosecute the contempt proceedings was not error. Eichhorn v. Kelley Lease
phrase reading, "Provided that all other tenants are similarly
obligated" was a condition precedent to tenant's obligation to
pay pass-through charges. Dinnerware
Plus Holdings, Inc. v. Silverthorne Factory Stores, LLC Plain language of C.R.S. § 30-28-101(10)(b) (exemption from subdivision regulation for parcels of 35 acres or more) applies only to subdivision, not zoning regulation. Therefore, there is no parallel exemption from zoning regulation for 35-acre plus parcels. Thus, county's zoning regulation was not invalid on its face . The court remanded for further proceedings to determine whether the regulation was illegal as-applied to the facts of the case. Boone v. Board of County Commissioners Court of appeals declines to adopt an arbitrator's manifest disregard of the law as a ground for vacating an arbitration award under the Colorado Uniform Arbitration Act, (either arising from former § 13-22-214(1)(a)(III) or as a nonstatutory common law ground). Coors Brewing Co. v. Cabo Court lacked jurisdiction to proceed on claim against bankruptcy trustee in his official capacity because plaintiff did not obtain leave of bankruptcy court to bring the action. But the court did not dismiss the appeal on that ground. Instead, it concluded that because the district court had decided (and dismissed) the case on statute of limitations grounds, it had jurisdiction over the appeal of that decision as a final judgment under C.R.S. § 13-4-102. The court of appeals then affirmed the district court's dismissal, albeit on a different ground (the lack of subject matter jurisdiction). Sounds like a law school exam question to me. Torrez v. Edwards December 15, 2004 The court of appeals will release the following decisions tomorrow: Published Opinions No.: 02CA2163 John Strekal v. Dwight E. Espe and Dorothy B. Espe Unpublished Opinions No.: 02CA1451 People v. Darwin Roy Vanraalte December 14, 2004 The supreme court will hold a public hearing on January 24, 2005 between 3:30 and 4:30 p.m. to consider proposed appellate rule 3.4. That rule concerns appeals from dependency and neglect proceedings, and would govern the timing, the contents of the notice of appeal, and basically all procedures in such cases. Here is a link to the rule, which you will find by scrolling to the bottom of the link. And for Tenth Circuit practitioners, you'll want to be sure to familiarize yourself with the court's emergency order on electronic submission, which can be found at this link. If you need to file a brief or other pleading in the Tenth Circuit, be sure to follow this order, and call the clerk's office (303-844-3157) if you need assistance. It's a great resource. December 13, 2004 The court of appeals' oral argument schedule for February 2005 is here. No supreme court case announcements today. December 9, 2004 The court of appeals announcements for today are here. The court issued only unpublished decisions. December 8, 2004 The court of appeals will issue the following unpublished decisions tomorrow: No.:
02CA1208 People v. Duane Edward Trujillo December 6, 2004 The supreme court issued six decisions this morning. The case announcements for today are here. Summaries will appear below as I get them done during my busy day today. If you don't see them please check back later. I promise they'll all be up by day's end. Also, the court granted cert. in three cases. The issues in those cases will appear below shortly as well. Admission of a prior out-of-court statement by a witness who is testifying at trial does not violate a defendant's confrontation rights. In a sexual assault trial, the prosecution sought to introduce videotaped statements made by two children to a law enforcement officer. The court held that introduction of the videotapes would not violate Crawford because the children were also going to testify at trial. People v. Argomaniz-Ramirez State Treasurer Mike Coffman violated the Colorado Fair Campaign Practices Act by issuing three press releases addressing Amendment 23 before the 2000 election. In a 6-1 decision, the supreme court held that nothing in the state constitution or statutes permitted the treasurer to avoid the constraints of the Act with respect to the expenditure of state funds to advocate either for or against a ballot measure pending before the electorate. The court concluded that the Act applied to the press releases and that none of the Act's exemptions immunized the press releases from compliance with the Act. Therefore, the three press releases violated the Act's fifty-dollar expenditure limit for expressions of opinion on campaign and ballot issues by state officials or employees with policy-making responsibilities. Justice Coats dissented, concluding that the treasurer's actions were not prohibited by the Act, and that the majority's contrary conclusion will have a "deleterious impact on the public's right to be informed by its elected officials about the merits of pending ballot issues." Coffman v. Colorado Common Cause Expert testimony of industry standards is not required to prove a tort claim for breach of the insurer's duty of good faith when the standard of care is within the knowledge and experience of the average juror, and when the court's jury instructions conform to the Unfair Claims Practices Act, C.R.S. § 10-3-1104 (which establishes valid, but not conclusive, evidence of the standard of care). American Family Mut. Ins. Co. v. Allen Where the trial court failed to make an adequate inquiry into whether a defense witness violated a witness sequestration order, it was constitutional error to preclude the witness's testimony. Because the error was not harmless, the conviction could not stand. The court concluded that when a violation of a sequestration order is alleged, the trial court must make a diligent inquiry into whether the violation actually occurred and whether the witness's unrestricted testimony would cause prejudice to the other party. The court noted that disqualification of a witness is a severe sanction that should be imposed only after careful consideration. The court listed factors to be considered in determining whether to impose sanctions: (1) evidence of the party's or counsel's "consent, connivance, procurement or knowledge" of the violation; (2) the witness's actions and state of mind in violating the sequestration order--was it inadvertent or deliberate?; (3) is the proffered testimony material and relevant to the case, bearing in mind that a criminal defendant has a substantial right to present favorable evidence and his version of the facts. People v. Melendez "Actual trial" clauses in insureds' uninsured motorist coverage, which clauses attempt to preclude default judgments against uninsured motorists from effectively establishing liability, violate public policy as expressed in C.R.S. § 10-4-609. The court also held that the insurer was not entitled to a jury trial on its insured's tort claim against the uninsured motorist. Justice Kourlis, joined by Justice Coats, dissented on both holdings. State Farm v. Brekke In consolidated workers' comp cases, the court held that C.R.S. § 8-42-105(4) bars temporary total disability wage loss claims when the voluntary or for-cause termination of the modified employment causes the wage loss, but not when the worsening of a prior work-related injury causes the wage loss. Justice Coats dissented, concluding that the statute did not require payment of any wage loss for work-related injuries that become disabling after the employee chose to quit his job. Anderson v. Longmont Toyota The court granted cert. in these three cases: Frank
M. Hall & Co. v. Newsom, No. 04SC275, on this issue: Whether the court of appeals’ interpretation of section 8-41-401, C.R.S. 2003 and its reference to section 8-40-202(2)(b), C.R.S. 2003 in section 8-41-401(a), creates public policy detrimental to Colorado’s workers and employers, and is contrary to legislative intent in that it is inconsistent with section 8-41-401(2) and (3). USAA Cas. Ins. Co. v. Anglum, No. 04SC390, on this question: Whether the court of appeals erred in holding an automobile insurer cannot adjust its premium to reflect a newly acquired vehicle as of the date of acquisition, but instead must insure the vehicle at the original premium rate from the date of acquisition until the date the insured notifies the insurer of the new vehicle. Edwards v. People, No. 04SC565, on this issue:
Whether the court of appeals erred when it concluded that Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354 (2004), does not apply to the defendant’s postconviction motion. December 3, 2004 The supreme court will issue the following six decisions on Monday: No.
04SA109 People v. Argomaniz-Ramirez I'll
have summaries sometime Monday. December 2, 2004 The court of appeals case announcements for today are here. The court issued four published decisions, summarized below. Crim. P. 35(b) motion need not be heard by same judge who originally sentenced defendant. People v. Banuelos-Landa Claimant
who was required to attend a vocational rehabilitation evaluation should
be compensated under the quasi-course of employment doctrine for injuries
sustained in a car accident when he was traveling home from the required
evaluation. Turner
v. ICAO Some of inmate's challenge to a prison regulation he had previously challenged in a federal action was barred by collateral estoppel. For claims not barred, the court rejected his constitutional challenges. Negron v. Golder C.R.S. § 8-43-204(4) (which provides for an administrative lien and attachment of workers' compensation awards or settlements for payment of child support arrearages) was a procedural amendment to workers' compensation law, and therefore could apply retroactively to lump sum settlements reached in cases where the industrial injury occurred before the amendment was enacted. Division of Child Support Enforcement v. ICAO December 1, 2004 The court of appeals will announce the following decisions tomorrow. Published Opinions People v. Banuelos-Landa Unpublished Opinions People v. Linnemeyer
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