December 18, 2006 The supreme court's announcements are here. The court issued two decisions, summarized below, and granted cert. in two cases. Defendant
was found guilty of first degree murder, conspiracy to commit first
degree murder, and attempt to commit first degree murder, on theories
of both extreme indifference and deliberation. In an original
proceeding, the supreme court holds the respondent in contempt and fines
her $6,000 for the unauthorized practice of law in two state court proceedings
and a civil action filed in the United States District Court for the
District of Colorado. The court found sufficient support in the record
that respondent practiced law in these proceedings without a license,
and in so doing, violated Colorado law and a previous order entered
by the court enjoining her against the unauthorized practice of law.
The court further held that Colorado’s ban on the unauthorized The court granted cert. in No. 06SC208, People v. Frazier, vacated and remanded to the Colorado Court of Appeals for reconsideration in light of People v. Johnson, 142 P.3d 722 (Colo. 2006). The court also granted cert. in No. 06SC631, Town of Foxfield v. Archdiocese of Denver, on these issues:
Whether the court of appeals erred when it concluded that a parking ordinance was subject to the Freedom to Gather to Worship Act, section 29-1-1201, C.R.S. (2006), despite the FGWA’s explicit exception for generally applicable parking laws.
Whether the court of appeals erred in concluding that Respondents met either of the relevant jurisdictional prerequisites of the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. section 2000cc (2006).
Whether the court of appeals erred in concluding that a parking ordinance is subject to strict scrutiny under the United States Constitution. December 15, 2006 December 14, 2006 Here are today's court of appeals announcements. The court issued 7 published decisions summarized below. Rape shield law does not bar evidence of other sexual conduct by victim in order to rebut evidence that injury to victim's hymen was evidence of defendant's guilt, and trial court erred in concluding otherwise. But the defendant failed to lay a sufficient foundation for the evidence of other sexual conduct, and therefore it was not an abuse of discretion for the trial court to exclude the evidence. The court of appeals said that if a proper foundation is laid, presumably before trial, but at least outside the presence of the jury, the defendant should be given a reasonable opportunity to inquire whether a young victim was sexually active with other persons in a manner that could have caused her hymenal injury. People v. Prentiss On remand from supreme court in order to reconsider in light of Davis v. Washington and People v. Vigil, court of appeals concludes that introduction of child victim's video interview by a private forensic interviewer without opportunity for defendant to cross-examine the victim violated defendant's confrontation rights and was plain error requiring a new trial. People v. Sharp Defendant's convictions for possession of a controlled substance and possession of manufacturing chemicals did not violate double jeopardy, where defendant's convictions were based on factually distinct conduct. Also, in addressing an issue of conditional relevance under CRE 104(b), the court concluded that a trial court should allow physical evidence to be presented to the jury if a reasonable jury could decide the evidence is what its proponent claims it to be. Any question as to the authenticity of the evidence is properly decided by the jury. People v. Crespi In a case involving the validity of county oil and gas regulations, the court of appeals concluded that certain county regulations on their face conflicted with state law. But the court also concluded that a majority of the regulations invalidated by the trial court could possibly be harmonized with the state regulatory scheme and, therefore, an evidentiary hearing was necessary to determine the extent of any operational conflicts. Board of County Commissioners v. BDS International LLC Before trial, defendant filed a motion in limine to exclude evidence of damages pertaining to managed care insurance contracts, also known as "capitated" insurance contracts, on the ground plaintiff had not timely disclosed her expert witness's opinion as to such damages. The trial court granted that motion on the first day of trial. On appeal, defendant contended plaintiff's counsel and damages expert repeatedly referred to capitated insurance contract damages during the trial, forcing defense counsel to "make objections throughout the course of the trial," and that this led to jury confusion as to what damages it could award. To remedy any potential prejudice, the trial court instructed the jury not to consider the testimony given by the expert in response to the last of the three questions to which defense counsel had objected. The trial court also ordered plaintiff's counsel to ask only leading questions when questioning the expert witness about the exhibit which included capitated insurance contract damages so as to prevent the expert from providing answers including references to such damages. In light of those corrective measures, the court of appeals concluded that the the trial court did not abuse its discretion in refusing to order a new trial. Mahan v. Capitol Hill Internal Medicine P.C. In a legal malpractice action, the trial court erred in ruling that plaintiffs failed to comply with the certificate of review statute. Plaintiffs' certificate of review under C.R.S. § 13-20-602 was sufficient because it contained the necessary declarations required under the statute and the trial court did not request any supplemental information on it. Therefore, plaintiffs cannot be faulted for failing to describe the expert's qualifications. In addition, plaintiff did not have to file separate certificates for each defendant. Plaintiffs acknowledged that their certificate was untimely, and the court of appeals noted that while Plaintiffs did file their certificate late, the trial court did not properly exercise its discretion in deciding whether to excuse the late filing, so a remand was necessary. The court also rejected Plaintiffs' contention that a certificate of review was not required for their negligent misrepresentation claim, as that claim was based on an underlying theory of professional negligence. RMB Services, Inc. v. Truhlar Summary judgment
on claim preclusion reversed. Because neither the terms of the insurance
policy nor State Farm's refusal to pay the UIM claim was at issue in
the earlier personal injury action, the court concluded that the previous
action was not related "in time, space, origin, or motivation"
to the bad faith action. Accordingly, claim preclusion did not apply.
Judge Webb specially concurred, noting that he would resolve this issue
by adopting the uniform rule among the federal Circuit Courts of Appeal
that a plaintiff need not amend to avoid claim preclusion because claim
preclusion is limited to claims that had accrued at the time the underlying
action was commenced, and thus could have been set forth in the initial
complaint. Camus
v. State Farm Mutual Automobile Ins. Co. December 13, 2006 The court of appeals will release the following decisions tomorrow, including 7 published opinions: Published Opinions No.: 03CA1364 People v. Corinthian Prentiss Unpublished Opinions No.: 03CA1590 People v. Thomas J. Howell December 11, 2006 There were not supreme court announcements today. Instead, the court was at Gateway High School in Aurora this morning, hearing arguments in two cases. I saw the end of the first argument, and watched the second (Shawn Gillum, an associate in my firm, argued for the petitioner). The auditorium was packed, and the during the Q&A sessions, the students asked insightful questions. The arguments were part of the Courts in the Community program. Kudos to the court for taking the time and effort to do it, to the schools for hosting, and to the students, faculty and staff for making it a great experience for all. December 7, 2006 Here are today's court of appeals announcements. The court issued only unpublished decisions. December 6, 2006 The court of appeals will release the following unpublished decisions tomorrow: No.: 03CA0741 People v. Darin James Klocker December 5, 2006 Here, finally, are the summaries of last week's published decisions from the court of appeals. In a case arising
from the fiasco involving transcripts of court reporter Valeri Barnes,
the court concludes that the transcripts, though flawed, "were
sufficiently reliable to enable intelligent review of defendant’s
substantive contentions." The court found no prejudice: "Defendant
does not identify, and we do not find, any errors or omissions that
relate to the substantive issues Defendant's
motion to suppress was properly denied. The statement that the defendant
sought to suppress occurred after defendant invoked his Miranda right
to counsel. But the detective’s answer to defendant's question
was merely informative and was not reasonably likely to elicit an incriminating
response. Therefore, defendant's statement was not the product of interrogation.
The court also concluded that the trial court's denial of the defense's
request to allow two incarcerated defense witnesses to appear in court
unshackled and in street clothes was harmless, even if it had been erroneous.
People
v. Knight In insurance
bad faith cases, evidence of an attorney’s post-filing litigation
conduct may be admitted as evidence of bad faith if the risks of unfair
prejudice, confusion of the issues, or misleading the jury, and considerations
of undue delay, waste of time, or the presentation of unnecessary cumulative
evidence are substantially outweighed by the probative value of the Trial court did not err in admitting statements by defendant's wife wife under the doctrine of forfeiture by wrongdoing. Under the doctrine of forfeiture, a defendant waives his confrontation Clause rights where by his wrongdoing he procures the unavailability of a witness. The trial court found, in ruling on the admissibility of the wife's hearsay statements, that there was clear and convincing evidence that defendant killed his wife. People v. Vasquez A trial court’s failure to inquire into the grounds of a defendant’s dissatisfaction with counsel is not, in and of itself, structural error mandating a new trial. Instead, a trial court’s error in failing to inquire is subject to harmless error review. Accordingly, a defendant’s remedy is not an automatic order for a new trial, but rather a remand for a hearing on the defendant’s allegations. The court remanded the case for such a hearing to determine whether substitution of counsel was warranted. The court noted that "defendant will have the burden of establishing that he had a completely fractured relationship with appointed counsel because of an irreconcilable conflict or a total breakdown in communication, or that appointed counsel would not competently represent him." People v. Kelling Defendant was convicted of sexual assault as a class 3 felony, which, under C.R.S § 18-3-402(2) and (4)(a), requires a finding that the defendant caused the victim of the sexual assault to submit by physical force or physical violence. Without that finding, the sexual assault is a class 4 felony. On appeal, defendant argued that the trial court violated his constitutional rights to due process and trial by jury when it gave the jury the “physical force or violence” instruction separately from the sexual assault instructions. The court of appeals rejected that argument, concluding that the instructions were accurate and that the circumstances specified in § 18-3-402(4) do not require proof of a mens rea to convict the defendant of a class three felony offense. People v. Santana-Medrano Defendant's
post-conviction claims fell under Crim. P. 35(c), and because they were
not filed within three years of the date his conviction was final, they
were time-barred. People
v. Collier C.R.S. §
13-22-204(2) (2003) provided that "On application, the court may
stay an arbitration proceeding commenced or threatened on a showing
that there is no agreement to arbitrate. Such an issue, when in substantial
and bona fide dispute, shall be forthwith and summarily tried and the
stay ordered if found for the moving party. If found for the opposing
party, the court shall order In an appeal
of an order permitting mother to relocate with the children to another
state, the court of appeals noted that the goal of promoting the best
interests of the child while affording protection equally to a majority
time parent’s right to travel and a minority time parent’s
right to parent is best achieved, and the General Assembly’s intent
and the beneficial purpose of C.R.S. § 14-10-129 are best effectuated,
by construing the portions of § 14-10-129 that reference relocation
by “a party with whom the child resides a majority of the time”
to include and be consistent with relocation by a party who, at the
time the motion is filed, shares parenting time equally with the other
parent but desires to relocate with the child and to modify parenting
time so as to become the majority time parent. The court concluded that
the trial court effectively did so here. Therefore, the trial court
did not err in applying the best interests standard set forth in §
14-10-129(1)(a)(II) and considering the factors mandated under that
section, rather than applying the endangerment standard set forth in
§ 14-10-129(1)(b)(I) to mother’s motion to remove the children
to Florida. Judgment terminating
parental rights had to be vacated because the Citizen Potawatomi Nation
did not receive notice of the motion for termination, as required under
the Indian Child Welfare Act, 25 U.S.C. § 1912(a). The tribe was
entitled to notice. People
In the Interest of S.R.M. In an interlocutory
appeal, the People challenged a trial court's pretrial ruling requiring
the prosecution to reassemble thirty-one counts, which effectively resulted
in the dismissal of eleven of the original charges. The court of appeals
reversed: "There are no constitutional or other permissible grounds
upon which the trial court could require the prosecution to reassemble
the charges against defendant. Thus, insofar as its order resulted in
the mandatory dismissal of December 4, 2006 The supreme court's announcements for today are here. The court did not issue any new decisions and did not grant cert. in any cases. As a reminder, the court will hold arguments this week (Tuesday-Thursday). Next Monday, the court will hold two arguments at Gateway High School. I apologize for not getting last week's court of appeals cases summarized, but I got hit again with a bout of strep throat. I'm on the mend, but a bit behind the 8-ball. I will try to get some posted by day's end. December 1, 2006 The supreme court will issue no new decisions on Monday. It's not clear whether the court will issue rulings on cert. petitions or not. Thursday's court of appeals announcements are here. The court issued 11 published decisions, which I hope to summarize by the end of the day on Monday. The court of appeals' oral argument calendar for February 2007 is here.
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