July 28, 2005 The court of appeals' announcements for today are here. The court issued 9 published decisions, summarized below. And the announcement page and the opinions have a new look and feel. Much better than the old format. Let's hope it's a permanent change. Where evidence
showed mere preparation and not substantial step towards commission
of crime (attempted murder), evidence was insufficient to sustain conviction.
The defendant had bomb-making materials but neither had a completed
bomb nor was in close proximity to the intended victim. Therefore, defendant
had not taken the required substantial step that would support an attempted
murder conviction. The court reversed that conviction, but affirmed
the defendant's conviction for possession of an explosive or incendiary
device. People
v. Lehnert Admission of evidence of other bad acts in prosecution for sexual assault on a child by a person in a position of trust was not plain error where evidence against defendant was strong, reference was a one-time event, and no other victims were identified by the reference. The court also rejected the defendant's argument that reversal was required because the prosecution and investigating detective improperly vouched for the credibility of the victims. People v. Lopez C.R.S. §
16-3-309(5), which permits the admission of laboratory reports without
requiring the prepare to testify, does not violate the Confrontation
Clause (either on its face or as applied). The defendant failed to request
the technician to testify as permitted under the statute. The court
held that admission of the report did not violate Crawford v. Washington.
The court rejected numerous other challenges by the defendant and affirmed.
People
v. Hinojas-Mendoza To be convicted of possession of a controlled substance under C.R.S. § 18-18-405, the prosecution need prove only that the defendant knew he was in possession of a controlled substance. The prosecution need not prove that defendant knew what type of controlled substance he possessed. People v. Perea Where undisputed
evidence showed that parties had agreed that bank would send notices
to a certain address and the plaintiffs would provide written notice
of any change of address, bank properly gave notice in foreclosure proceedings
by mailing to the specified address, despite the fact that plaintiffs
no longer resided there. Bank adhered to the deed of trust provisions
and complied with Rule 120. The plaintiffs' failure to provide the bank
with their new address doomed their case, with the court rejecting their
position that bank should have made reasonable efforts to locate their
new address. Estates
in Eagle Ridge, LLLP v. Valley Bank & Trust Summary judgment granted in legal malpractice action. The plaintiff has consulted defendant-attorney and disclosed confidential information to attorney in connection with the termination of a business. Attorney later represented plaintiff's business associate in an action against plaintiff. Attorney was disqualified in that action, and plaintiff brought the malpractice action. Affirming summary judgment, the court noted that plaintiff could not prove causation, since the business associate's new counsel said he and any reasonable attorney would have asserted similar claims against plaintiff. Because of that, plaintiff would have been sued regardless of who the business associate used as counsel. Therefore there could be no malpractice liability. Aller v. Law Office of Carole C. Schriefer, PC Dismissal of
fraud claim without prejudice was not a final judgment and therefore
was not reviewable on appeal. The court also held that the trial court
did not err in dismissing for lack of subject matter jurisdiction, under
Rule 12(b)(1), without first holding a hearing. Since the matter could
be resolved on undisputed facts, no hearing was necessary. On the merits
of that issue, the court noted that the allegedly defamatory statements
were made in the context of a church meeting convened to consider whether
the pastor should be terminated. To consider the issue, the court would
be required to review the motives of the church members who uttered
the allegedly defamatory statements, and thus would be required to engage
in a subjective evaluation of their choice of a spiritual leader. The
court said it had serious First Amendment concerns about the propriety
of doing so, and upheld dismissal. Seefried
v. Hummel A trial court may not enter a dispositional order without first entering an order adjudicating the child dependent or neglected. Here the mother denied the allegations in the DHS's petition. But the trial court did not hold an adjudicatory hearing and instead simply adopted the DHS's proposed treatment plan as its dispositional order. The court of appeals vacated and remanded for further proceedings and also remanded for reconsideration of the request by mother's appointed counsel to be relieved of the appointment. People in the Interest of J.L. Because the
trial court found that mother had not shown good cause for missing six
visits with children (part of the treatment plan), trial court was required
to find that mother was not in reasonable compliance with and had not
been successful under the treatment plan. See C.R.S. §19-3-604(1)(c)(I)(A).
The court also rejected mother's argument that there was insufficient
evidence to show that she was an unfit parent and could not become fit
within a reasonable time. The court thus upheld the termination of her
parental rights. July 27, 2005 The court of appeals will issue the following decisions tomorrow, including 9 published opinions: Published Opinions No.: 02CA2186 People v. Charity Lehnert Unpublished Opinions No.: 03CA0923 People v. Santana Pena July 25, 2005 The supreme court's case announcements for today are here. The court did not issue any decisions but did grant cert. in one case, No. 04SC547, Zab, Inc. v. Berenergy Corp., on this question:
Whether declaratory relief under C.R.C.P. 57 is available for matters involving oral arrangements. July 22, 2005 The court of appeals' oral argument calendar for September is here. Still waiting for the supreme court's calendar. July 21, 2005 The court of appeals' announcements for today are here. The court issued only unpublished decisions. July 20, 2005 The court of appeals will announce the following unpublished decisions tomorrow (no published ones): Unpublished Opinions No.: 02CA0024 People v. Louis A. Madden July 19, 2005 The state has filed a cert. petition in the U.S. Supreme Court seeking review of the Colorado Supreme Court's decision in People v. Harlan, in which the court vacated Harlan's death sentence due to the presence and use of a Bible during deliberations in the sentencing phase. I'll keep you posted on this one. July 18, 2005 The supreme
court's case announcements for today are here.
The court issued no new decisions and did not grant cert. in any cases.
The court did modify its decision, and deny rehearing, in Ready Mixed
Concrete Co. v. Farmers Reservoir and Irrigation Co. The modified opinion
can be found here. July 15, 2005 As a reminder, the formatting requirements for briefs in the court of appeals and supreme court changed effective July 1. The most important changes are that 14-point type is now required for pleadings and the court has, wisely, implemented word limits (9500 for principal briefs and 5700 for reply briefs). Be sure to review the new rules. The supreme court will have an announcement sheet on Monday. But it doesn't look like the court will be issuing any decisions. I'll have the announcements Monday and will let you know if the court grants cert. in any cases. July 14, 2005 In case you hadn't heard, Chief Justice Rehnquist was released from the hospital today. I wish the Chief a full and speedy recovery. The court of appeals' case announcements for today are here. The court issued 8 published decision summarized below. Appointment of counsel who was not on the list of counsel for the Office of Alternate Defense Counsel was not plain error, where defendant showed no fundamental unfairness. In addition, the trial court did not abuse its discretion in denying counsel's motion to withdraw. The court also noted that ineffective assistance of counsel claims are better resolved in postconviction proceedings. The court did vacate defendant's sentence in part because two of defendants' convictions were on counts that referred to sentence enhancers, not substantive offenses. People v. Hodges Court of appeals
affirms order requiring defendant to pay prosecution's costs for transferring
him from a Georgia prison to Colorado, at defendant's request. Defendant
had filed a request under the Interstate Agreement on Detainers (IAD),
C.R.S. § 24-60-501, and he was transferred to Colorado. Once in
Colorado, Defendant pled guilty and was sentenced. The trial court granted
the People's request for recovery of costs. The court rejected defendant's
argument that the cost statute, C.R.S. § 18-1.3-701, conflicted
with the IAD. People
v. Fogarty Trial court erred in denying defendant's motion to suppress. The Colorado highway patrol, having received a tip from Utah law enforcement, stopped the car in which defendant was riding for exceeding the speed limit. The officer conferred with the driver and eventually returned her paperwork to her, stating "please slow down, get an insurance card and have a safe trip." But shortly thereafter the officer told the driver he had concerns about her story and asked several times for permission to search her car for drugs. Eventually, the driver said "sure" and over defendant's vociferous protests, a drug-sniffing dog was put in the back seat of the car. A large quantity of cocaine turned up. The court of appeals concluded that once the officer had returned the paperwork to the driver, there was no basis for the continued detention of the car or its occupants. Therefore, the continued detention was unlawful and rendered the search unconstitutional. People v. Brandon Because defendant's
convictions were final before the U.S. Supreme Court decide Apprendi,
Blakely and Apprendi did not apply to defendant's sentences, which exceeded
the applicable presumptive ranges. The court also rejected defendant's
arguments that he had ineffective assistance of both trial and appellate
counsel. In addressing the claim of ineffective assistance of appellate
counsel, the court held that there is no constitutionally-mandated standard
that requires appellate counsel to advise the defendant about opportunities
for statutory postconviction relief or federal habeas corpus. People
v. Alexander Restrictive covenant provision that terminated covenants in the event the condo association "shall legally dissolve" did not apply to terminate covenants where association was administratively dissolved by the secretary of state then later reinstated. The court interpreted the provision as intending to terminate the covenants only when the condominium owners agreed or when the covenants were no longer needed. Ski Time Square Condominium Association, Inc. v. Ski Time Square Enterprises Gun club was not exempt from ad valorem taxation on its nonresidential property. The court concluded that the club was not entitled to the charitable use tax exemption for "qualified amateur sports organizations," under C.R.S. § 39-3-108(1.3). The Property Tax Administrator had concluded that the club was not a qualified amateur sports organization and therefore not exempt. The court of appeals upheld that determination, concluding that the club could not satisfy the threshold requirement that it be organized exclusively to foster amateur sports competition. Cherry Creek Gun Club, Inc. v. Huddleston, in her official capacity as Property Tax Administrator Court remands for further findings in workers comp case arising out of fatal traffic accident. The court noted that the issue whether travel is singled out for special treatment as an inducement to employment when the employer pays an increased hourly premium to induce workers to travel to a particular worksite had not been addressed by Colorado courts previously. The court concluded that the inquiry is fact-specific and remanded for further factual inquiry. Sturgeon Electric v. Industrial Claim Appeals Office Computation of average weekly wage (AWW) in workers comp context must include the claimant's cost of continuing his employer's group health insurance plan. Judge Hawthorne wrote the majority opinion, in which Judge Marquez concurred. Judge Graham dissented, concluding that the AWW should not include that cost unless the claimant actually continued the employer's coverage at his own cost. Judge Graham's position was the position the Panel had adopted. I expect this case may receive supreme court review. Ray v. Industrial Claim Appeals Office July 13, 2005 I recently ran across a blog that emphasizes criminal appeals in the Tenth Circuit. Entitled "Direct Appeal," the blog summarizes 10th circuit criminal cases. It's written by Russ Wheeler, an attorney in Oklahoma City. It appears to be very useful for those practicing criminal defense (or prosecution) in the Tenth, and is a welcomed new addition to my favorites. Check it out here. The court of appeals will release the following decisions tomorrow (including 8 published decisions, which I'll summarize): Published Opinions No.: 03CA0018 People v. Terrence T. Hodges Unpublished Opinions No.: 03CA0742 People v. Peter L. Pugsley July 11, 2005 The supreme court had no case announcements today (that's two weeks in a row). Maybe next week. July 7, 2005 The court of appeals' announcements for today are here. The court issued only unpublished decisions. July 6, 2005 The court of appeals will release the following unpublished decisions tomorrow (no published ones): Unpublished Opinions No.: 03CA0075 People v. Victor D. Baca July 5, 2005 The supreme court had no case announcements today. But so you won't go home empty-handed, here are the summaries of last Thursday's court of appeals' published opinions. Because federal gun control act prohibited police officer from possessing a firearm, officer was disqualified as serving as Denver police officer. The federal law prohibits individuals convicted of misdemeanor domestic violence charges from possessing firearms. The officer was convicted of third degree assault on a woman with whom he had lived for a year but was not living with at the time of the assault. The ATF advised the DPD that it interpreted the officer's conviction as falling within the federal statute's prohibition. The hearing officer had disagreed with the ATF's interpretation and recommended reinstatement. The civil service commission reversed the hearing officer's ruling, disagreeing with the hearing officer's interpretation of the federal law. The court upheld the commission's interpretation of the federal law and therefore upheld the officer's termination. Woods v. City and County of Denver Hockey player, who claimed to be "enforcer" whose role was to play particularly aggressively and to engage in fights with opponents, filed claim under insurance policy when his hand was injured in a fight. The insurer denied coverage on the ground that the injury was not the result of an unexpected event as required under the policy and that he was not permanently totally disabled under the policy. The court of appeals upheld summary judgment in favor of the insurer, concluding that the injury was not caused by an accident and therefore was not covered. Certain Underwriters at Lloyd’s London v. Rychel Trial court made no findings of fact and did not state its reasons in denying father's bill of costs following successful appeal. Therefore, the court of appeals reversed and remanded for the trial court to make findings. The court of appeals rejected father's argument that an award of costs was mandatory. Marriage of Goodbinder By failing to request that criminal laboratory technician testify at trial, defendant waived any objection to the People introducing the lab report (in this case a report of blood alcohol content) under C.R.S. § 16-3-309(5). The court did vacate the defendant's DUI conviction because it was a lesser included offense of his vehicular assault conviction. People v. Cruthers Probate court did not err in refusing to invalidate decedent's will. While there was uncontested evidence that decedent suffered from a mental illness (schizophrenia) and had been a protected person under a Veterans Administration guardianship over his financial affairs, the probate court gave credence to the testimony of the attorney who drafted the will about the decedent's testamentary capacity. The court concluded that the probate court's findings of fact were not clearly erroneous and therefore affirmed. Estate of Romero Evidence
was sufficient to convict defendant of forgery and attempting to influence
a public servant. The court also rejected defendant's arguments that
the trial court erred in allowing a prosecution investigator to comment
on the strength of the evidence and explain why handwriting analysis
was not performed. The court also concluded that the prosecution did
not improperly comment on defendant's right to remain silent.
People
v. Taylor Properties
owned by organization that provides transitional housing for the homeless
were properly held to be tax exempt by the Board of Assessment Appeals.
The Property Tax Administrator argued that because the properties were
not occupied on January 1 for the tax year in question, they were not
exempt under C.R.S. § 39-3-112(4). The court of appeals concluded
that statutory section was inapplicable and held the properties to be
exempt from taxes. Family
Tree Foundation v. Property Tax Administrator Court
of appeals orders forfeiture judgment to be set aside and surety to
be exonerated. The court concluded the trial court abused its discretion
by failing to set aside the forfeiture because the state surrendered
the defendant to the INS who then deported him to Mexico. The state
thereby played a major role in defendant's nonappearance. The court
found it significant that the surety had no knowledge or reason to know
that defendant was illegally in this country and therefore faced deportation.
People
v. Escalera
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