January 26, 2007 The supreme court will have no case announcements next week. January 25, 2007 Here are today's court of appeals announcements. The court issued 11 published decisions, summarized below. Where statements
defendant challenges were not introduced by the prosecution as part
of its case-in-chief, but instead introduced by defendant these statements
as part of his case-in-chief to show his mental state at or around the
time of the incident, defendant could not claim that his statements
(or those unfavorable portions thereof upon which the prosecution relied
in rebuttal) were admitted in violation of Miranda. In addition, the
trial court did not err in denying defendant's motion for acquittal
following prosecution case-in-chief because at that point no evidence
had been presented that defendant's mental condition was unconnected
to his use of drugs, so the evidence was insufficient to support an
insanity defense and require the prosecution to prove defendant's sanity
beyond a reasonable doubt. The court concluded that "the structure,
context, and clear and unambiguous import of the language used in §
16-8-101.5 reveal an unmistakable intent on the part of the General
Assembly to apply the exclusion for voluntary ingestion of intoxicating
substances to both prongs of the insanity test." People
v. Grant Court of appeals rejects defendant's argumen that the trial court erred in enhancing his sentence under C.R.S. § 18-1.3-401(9)(a) because he had not yet been “convicted” of the felony for which he had pleaded guilty and was on bond when the trial court sentenced him here. Defendant asserted that, because he had not yet been sentenced for the on-bond offense, no “conviction” had entered. The court concluded that a guilty plea constitutes a conviction within the meaning of § 18-1.3-401(9)(a). Because at defendant’s sentencing the fact of his guilt of a prior felony had already been determined by his guilty plea in another case, he had been “convicted” within the meaning of § 18-1.3401(9)(a). People v. French Defendant's sentence must be vacated because his convictions for sexual assault on a child by one in a position of trust and aggravated incest must be merged into a single conviction. People v. Mintz Exceptional
circumstances (an intervening supreme court decision) warranted court
Trial court’s determinations that plaintiff proved that a way of necessity is reasonably necessary and that defendants did not prove, in any concrete fashion, that plaintiff had either an alternate route of access or a present enforceable legal right to use one were not clearly erroneous. Therfore, the trial court’s determination that defendants failed to rebut plaintiff's showing of an entitlement to a private way of necessity under art. II, § 14 of the Colorado Constitution was not clearly erroneous. Tieze v. Killam Possession of marijuana is not a lesser included offense of contributing to the delinquency of a minor. People v. Graybeal It was error under Blakely for the trial court to have used defendant’s admissions at a revocation hearing to aggravate his sentence. But the error was harmless because when defendant was resentenced he had already been convicted of the offense of indecent exposure, which encompassed conduct to which he admitted at the revocation hearing. Thus, there was no reason to believe that the court, if informed of that conviction, would not have imposed the five-year aggravated range sentence. People v. Banark In an eminent domain case, the trial court’s judgment made a change of substance to the jury’s verdict. Therefore, he portion of the judgment awarding the damages to, and the value of, one of the parcels had to be reversed and remanded for a new trial. School District No. 12 v. Security Life of Denver Insurance Company Trial
court erred when it granted credit union’s motion for directed
verdict on plaintiff's negligence Trial court did not err when it imposed sex offender treatment as a condition of probation mandated by C.R.S. § 16-11.7-105(1). People v. Hernandez Violation of an applicable building code provision on a premises, without more, cannot constitute a dangerous condition about which the owner actually knew, or should have known, such that the owner is liable under C.R.S. § 13-21-115, for personal injuries sustained by an invitee. Or, put another way, negligence per se cannot be based on the violation of an applicable building code provision in the construction of a premises, without more, in order to establish liability under § 13-21-115. Lombard v. Colorado Outdoor Education Center, Inc. January 24, 2007 The court of appeals' oral argument calendar for March is here. The court of appeals will announce the following decisions tomorrow, including 11 published opinions: Published Opinions No.: 03CA1034 People v. Dale Sample Grant Unpublished Opinions No.: 03CA1817 People v. Glenn Howard Kemp January 22, 2007 Here are today's supreme court announcements. The court did not issued any decisions or grant cert. in any cases. In fact, they only addressed three cert. petitions, which were all denied. Not much activity--unless you're involved in one of those three cases. Of course, the court is busy getting ready for oral arguments, which it will hold Tuesday-Thursday this week. January 19, 2007 The supreme court will issue no decisions on Monday, but will announce cert. petitions. January 18, 2007 Here are today's court of appeals announcements. The court issued only unpublished decisions. January 17, 2007 The court of appeals will release the following unpublished decisions tomorrow: No.: 04CA0256 People v. Jose Anthony Ramos January 16, 2007 Here are today's supreme court announcements. The court issued one decision, Turbyne v. People, summarized below. The court also granted review in three cases, and the questions presented in those appeals follow the case summary. Where the police
department had an adequate protocol in place for administering the requested
blood test, but the arresting officer could not obtain its performance
within the required two-hour period under Colorado's Express Consent
Statute, because of extraordinary circumstances beyond his control including
weather-related delays and a high call volume, the charges against the
defendant should not have been dismissed for failure to obtain the blood
test. But the supreme court did order the suppression of the breath
test results because they resulted from an invalid consent to search,
due to the arresting officer’s erroneous and coercive advice to
the defendant that he could lose his license by not submitting to a
chemical test he had not selected. Justice Martinez, joined by Chief
Justice Mullarkey and Justice Bender, dissented, concluding "In
my view, the paucity of evidence in this case offered to explain the
state’s failure to provide a blood test for the presence of alcohol
falls far short of demonstrating the factual basis for a The court granted review in the following cases: People v. Rickman, No. 06SC454, on this question:
Whether the court of appeals erred in reversing the defendant’s convictions on two counts of violation of bond when it concluded that pretrial services acted ultra vires and without statutory authority in imposing those bond conditions. Pena v. People, No. 06SC491, on these issues:
Whether the forfeiture by wrongdoing doctrine should be adopted in Colorado and, if so, whether application of the doctrine requires proof of defendant’s intent to prevent the declarant from testifying at trial.
Whether, assuming
arguendo that a defendant may be barred from raising a Confrontation
Clause claim, the court of appeals erred in refusing to consider whether
the challenged hearsay was admissible under the Rules of Evidence.
Whether the court of appeals erred in determining that a condemning authority could be compelled by a redeveloper to exercise its power of eminent domain through principles of estoppel in a situation when the landowners do not want their property condemned. January 12, 2007 The supreme court will issue one decision on Tuesday (Monday is a legal holiday), Turbyne v. People, No. 06SC21. Turbyne involves Colorado's Express Consent Statute. January 11, 2007 Here are today's court of appeals announcements. The court issued three published decisions, summarized below. C.R.S. §§ 18-3-301(1)(a) and 18-3-302(2) do not prohibit exactly the same criminal conduct while imposing disparate penalties, and therefore do not violate equal protection. The court rejected the defendant's argument that the inclusion of the terms "entices" and "decoys" in the second degree kidnapping statute means that the word "takes" necessarily prohibits only forcible seizures, and therefore prohibits the same conduct defined by § 18-3-301(1)(a). The court noted that the terms "entices" and "decoys" imply the use of deceit or trickery rather than force to accomplish a kidnapping, and that while "entices" and "decoys" are limited to nonforcible seizures, "takes" is not limited to forcible seizures. The term "takes" may encompass nonforcible seizures that are different from those accomplished by enticement or decoy. A taking could occur without force, with the intent to keep or conceal the child from his or her parent or guardian or with intent to sell, trade, or barter such child for consideration, but without the child's being enticed or decoyed away. Accordingly, the terms "entices" and "decoys" are not rendered meaningless by an interpretation of "takes" that encompasses nonforcible seizures. The court also noted the "obvious distinction" that § 18-3-302(2) applies only to children." People v. Kendall Provision of covenants provided that: "This Declaration and any amendments or supplements to it shall remain in effect from the date of recordation for a period of fifty (50) years. Thereafter, these Covenants shall be automatically extended for five (5) successive periods of ten (10) years each, unless otherwise terminated or modified as provided in this Article." Plaintiff asserted that this covenant must be construed as prohibiting amendments until after the initial fifty-year period, contending that to conclude otherwise would render the reference to the fifty-year term meaningless. The court disagreed: "The inclusion of the terms 'amendment' and 'supplements' contemplates that amendments may be made to the covenants during the initial fifty-year period. Nothing in the Declaration limits the making of amendments until after the expiration of the initial term." The court also held that C.R.S. § 38-33.3-217(4.5) of the Colorado Common Interest Ownership Act (CCIOA), does permit homeowners to create a new use restriction or to remove a specifically-permitted land use. Good v. Bear Canyon Ranch Association, Inc. Where tribe determined that child was not enrolled nor eligible for enrollment in tribe, such determination was conclusive and the juvenile court did not err in concluding that the Indian Child Welfare Act did not apply. People In the Interest of J.A.S. January 10, 2007 Apparently, this site was having technical difficulties the last few days, requiring users to enter a login (password, domain, etc.). I don't understand what happened, but I am told the problem has been fixed. Feel free to let me know of technical difficulties, since I don't always see them from this end. I apologize for any inconvenience. If I could upload free ice cream to compensate, I would. The court of appeals will issue the following decisions tomorrow, including three published decisions: Published Opinions No.: 04CA1212 People v. Aaron M. Kendall Unpublished Opinions No.: 04CA0329 People v. Harutyun Abrahamyan January 8, 2007 The supreme court's oral argument calendar for January is here. The court will hear arguments January 23-25. Here are today's supreme court announcements. The court issued four published decisions (two of which are companion cases), summarized below. The court did not grant cert. in any cases. In two companion cases, the supreme court held that proceeds of a CGL insurance policy are available to satisfy the judgment of a subsequent purchaser of damaged property against the homebuilder when (1) the builder insured itself against liability for damage occurring during the policy period, (2) the damage to the property occurred during the policy period, (3) no exclusion to the policy rendered the insured's policy coverage inapplicable because of a change in the property's ownership, and (4) the builder was liable for the damage to the property. Hoang v. Assurance Co. of America, Travelers Casualty & Surety Co. v. Village Homes of Colorado, Inc. A court may restrict speech within a courtroom, a nonpublic forum for First Amendment purposes, provided that the restriction is both reasonable and viewpoint neutral. The supreme court held that the trial court's order to petitioner to remove a T-shirt containing a political symbol during his criminal trial did not violate the First Amendment because the court's order was reasonably based on its duty to preserve the courtroom for the presentation of evidence, and not to restrict the particular viewpoint espoused by the petitioner. The supreme court also held that under C.R.C.P. 107(a)(2), a court may only hold a person in direct contempt when the court has either given prior warning that a person's behavior, if repeated, will constitute contempt and the contemnor persists in such behavior, or the person's conduct is "so extreme that no warning is necessary." Because the trial court did not warn the petitioner that his conduct would be contemptuous if repeated and because his conduct was not "so extreme that no warning was necessary," the court held that the trial court abused its discretion when it held petitioner in direct contempt. Justice Coats concurred in the judgment only, concluding that "[w]hether summary contempt at trial might have been justified under the circumstances of this case or not, the trial court simply failed to summarily hold the defendant in contempt for the conduct which it ultimately sanctioned with incarceration; and it clearly violated the dictates of procedural due process by citing the defendant at a later time, without affording him notice or an opportunity to defend. Because the majority effectively acknowledges as much, I consider wholly gratuitous its exploration of the complex relationship between contempt powers and First Amendment guarantees, as well as its attempt at severely restricting the type of conduct summarily punishable as contemptuous. Perhaps most importantly, however, I object to the majority's unspoken (but unmistakable) presumption, which flatly conflicts with the prior jurisprudence of this court, that rule 107 of the Colorado Rules of Civil Procedure circumscribes the inherent contempt powers of the criminal courts of this jurisdiction." In re People v. Aleem The supreme
court concludes that the defendant abandoned cocaine prior to its being
seized. Therefore, the cocaine was not the fruit of an unlawful seizure
and the trial court erred in suppressing it. Justice Martinez, joined
by Justice Bender, dissented, concluding that the record was inadequate
for appellate review: "the majority concludes that McClain was
not seized until after he dropped a clear plastic bag, thus legitimizing
a stop made under troubling circumstances. After a careful review of
the facts in this case and our controlling legal authority, I conclude
that the determinative facts of this case are unclear and neither the
record nor the trial court's findings are sufficient to permit adequate
appellate review. This case should be remanded for the creation of an
adequate record upon which we can base our holding." People
v. McClain January 4, 2007 I'm finally back. I was both snowed in and out of the office for the holidays. Luckily, the court of appeals and supreme court did not have many published decisions or other news to report, so this post will get you up to date. The supreme court issued these announcements on January 2nd. The court did not issue any published decisions, however, nor did it grant cert. in any cases. The court of appeals' announcements for today are here. The court issued only unpublished decisions. The court of appeals' announcements from December 28, 2006 are here. The court issued 9 published decisions, summarized below. Defendant was arraigned on charges in an unrelated matter. During that arraignment, defense counsel filed a motion in which he asserted defendant's right to counsel and right to silence. In a suppression hearing in the case before the court, defense counsel asked the court to take judicial notice of counsel's invocation of defendant's right to counsel. The trial court denied the motion to suppress and the court of appeals affirmed. The defendant did not allege that he personally asserted his right to counsel at any time before police approached him regarding the charge at issue, and he did not request counsel during his interrogation. Therefore, he did not invoke his Fifth Amendment right to counsel and there was no basis for suppressing his statements made during interrogation. People v. Vasquez In a CRCP 106 action reviewing the actions of a municipal liquor licensing board, the court of appeals concluded that the licensing board afforded due process to applicant for liquor license transfer. The court of appeals concluded that there was no conflict between C.R.S. § 12-47-312(1) and the city's local rules, noting that the statute requires that the licensing authority conduct an investigation and make its findings known to the applicant and that the local rule permitted the city clerk to conduct the investigation, make initial findings as the Board's agent, and provide a copy of its report to the Board. Both provisions permit the licensing authority to obtain the results of the initial investigation, and here the Board is the licensing authority. In addition, the court concluded that the local rules were not violated. Jayhawk Cafe v. Colorado Springs Liquor and Beer Licensing Board Notice of lis pendens was insufficient to give constructive notice of claimed interest in property. While the notice was filed with the clerk and recorded and contained all the information required by the lis pendens statute, C.R.S. § 38-35-110 (the name of the court where the action was pending, the names of the parties to that action, and a legal description of the property), a notice of lis pendens is not notice to a person who acquires an interest in the property from someone other than the parties named in the notice. The notice was ineffective because it did not appear in the chain of title. Therefore, the notice did not affect the ability to foreclose. Thomas v. Lynx United Group, LLC Dismissal without prejudice constituted a final appealable order because under the circumstances of the case the action could not be saved by amendment. Therefore, notice of appeal filed more than 45 days after dismissal order was untimely. Harris v. Regional Transportation District C.R.S. § 18-4-515(2) permits a licensed land surveyor, after notice, to enter public and private land to investigate and utilize boundary evidence, and to perform boundary surveys. Board of County Commissioners of the County of San Miguel v. Roberts The term "suspend," as used in C.R.S. § 8-42-105(2)(c), is fairly susceptible of different interpretations and is, therefore, ambiguous. The court interpreted "suspend" to contemplate a forfeiture of temporary total disability (TTD) benefits for the period of the claimant's suspension, and therefore claimant was not entitled to TTD benefits for the period of his suspension. Sigala v. Industrial Claim Appeals Office Servitudes created by a general development plan are binding upon subsequent purchasers with notice of the restrictions even if the purchaser's deed does not include the restriction. Allen v. Nickerson Claim preclusion barred relitigation of the compensability of claimant's cervical condition. There were not two separate injuries, because in each claim the injury for which compensation was sought was the cervical condition. Thus, claimant was precluded from litigating whether he had sustained an occupational disease in the second proceeding. Holnam, Inc. v. Industrial Claim Appeals Office Where amended
arbitration award significantly altered the amount to be received by
plaintiff, it affected the merits of the of the controversy and not
just the form of the award. Therefore, the arbitration panel exceeded
its authority in modifying the initial arbitration award and the In denying a petition for rehearing from a previously unpublished decision, the court ordered the modified opinion to be designated for publication. People v. Al-Yousif
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