June 30, 2005 (Update: summaries of June 30th cases are in the July 5th post) As you can see I have not yet been able to post summaries of today's court of appeals' decisions. And it looks like I'm not going to get to them today, as I have still to finish a draft brief (it involves some math which makes the whole process a bit slower). So I will try to get them posted tomorrow. But it may be next week before I can get them done. Please keep checking back, and accept my apologies for any inconvenience. The court of appeals' announcements for today are here. The court issued 8 published decisions. I have posted the links to the cases, but will not be able to summarize them until sometime later today, as I have a draft of a brief to finish up before I can review the decisions. So check back later, and thanks for your patience. June 27, 2005 Here are today's supreme court announcements. The court issued six decisions (two of which were consolidated in one opinion) and granted cert. in three cases. The summaries will be posted later today, after I finish a brief that's due today. The questions presented in the cases in which the court granted cert. are below. A defendant charged as a complicitor with the intentional commission of a crime may be entitled to a jury instruction on a lesser unintentional crime. In so holding, the court concludes that in common enterprise cases, a complicitor may be convicted of aiding and abetting a principal's unintentional crimes. On the facts of the case, the court concluded that the defendant could be liable as a complicitor in reckless manslaughter and therefore was entitled to an instruction to that effect. Justice Bender, joined by Justice Kourlis, dissented, concluding that a defendant should only be convicted under a theory of complicity when he intends to aide, abet or assist in the crime committed by the principal. Justice Coats did not participate. Grissom v. People Political supporter of Sen. Allard who was charged with disrupting a 2002 rally for Allard's opponent Tom Strickland, could be convicted of disrupting a lawful assembly (in other words the trial court constitutionally applied the statute prohibiting the disruption), but the evidence was insufficient to sustain the conviction (i.e., there was no sufficient evidence of disruption). The court did uphold another conviction for obstructing a peace officer. Justice Bender dissented in part, concluding that the statute as written could not be constitutionally applied. Dempsey v. People Subcontractors owe homeowners a duty of care, independent of any contractual obligations, to act without negligence in the construction of homes. Therefore, the economic loss rule does not apply in such circumstances Justice Kourlis, joined by Justice Coats, dissented, concluding that the homeowners' economic loss arose out of implied or express contractual duties and therefore negligence claims should have been barred by the economic loss rule. A.C. Excavating v. Yacht Club II Allowing jurors to ask questions through the court does not violate a criminal defendant's right to a fair trial. Where the trial court errs and asks an otherwise impermissible question, the error will be reviewed for harmless error. Justice Coats concurred in the judgment only, largely because he believed the court's historical/policy analysis was neither necessary nor appropriate. Medina v. People (together with Moses v. People) In a C.A.R.
21 proceeding, the supreme court held that the trial court did not err
in excluding the testimony of a murder defendant's ergonomics expert
who would have testified that it was more than 50% probable that the
defendant accidentally shot the victim. The supreme court held that
the trial court did not abuse its discretion in excluding that evidence
under a Shreck analysis. Justice Bender, joined by Justice Martinez,
dissented, concluding that the proffered testimony was both reliable
and relevant, and therefore the trial court erred in excluding it. People
v. Wilkerson The court granted cert. in the following three cases, two of which are related: People v. Alengi, No. 04SC493, on these issues:
Whether the Sixth Amendment right to counsel requires the trial court to make a detailed inquiry of a defendant’s financial affairs before a waiver of the right to counsel is valid.
Whether the court of appeals denied defendant his constitutional right to equal protection when it affirmed his convictions and reversed defendant’s wife’s convictions even though defendant and his wife were identically situated on appeal.
People v. Alengi, No. 04SC494, on these issues: Whether the Sixth Amendment right to counsel requires the trial court to make a detailed inquiry of a defendant’s financial affairs before a waiver of the right to counsel is valid.
Whether the court of appeals can reject defendant’s admission that she was not indigent during an Arguello inquiry in determining whether her waiver of the right to counsel is valid. State Farm Auto. Ins. Co. v. Do, No. 05SC77, on this question: Did the Court of Appeals err in holding that the lack of noneconomic damage award in the jury verdict resulted from the jury’s failure to abide by the court’s instructions upon the subject. June 24, 2005 The supreme court will issue 6 decisions on Monday. I will try to summarize those at some point on Monday, but I have a brief due in the supreme court that day, so the summaries may be delayed a bit. Here are the cases the court will decide: 03SC792 Grissom v. People June 23, 2005 Here are the court of appeals' announcements for today. The court issued unpublished deicions only. June 22, 2005 The court of appeals will issue only unpublished decisions tomorrow. Here is the list of opinions the court will release: Unpublished Opinions Case No.: 01CA1459 People v.Long Ba Phan June 20, 2005 Here are today's supreme court announcements. The court issued no decisions and did not grant cert. in any cases. June 17, 2005 The supreme court will issue no new decisions on Monday, but will issue orders on cert. petitions. June 16, 2005 The court of appeals' announcements for today are here. The court issued six published decisions, summarized below. Where dismissal of case was without prejudice but applicable limitations period had passed at time of dismissal (meaning any new action would commence after the statute of limitations had expired), the dismissal without prejudice could operate as a final judgment. But because the dismissal order was not reduced to writing, it did not satisfy C.R.C.P. 58(a) and was not an appealable order. A later order on a motion to reconsider, however, did satisfy Rule 58 and therefore started the time running to file a notice of appeal. The notice of appeal was not filed within 45 days of that order, and thus the appeal was dismissed for lack of jurisdiction. SMLL, L.L.C. v. Daly C.R.S. § 13-21-105, which provides for strict liability to any person who causes damage by setting fire to woods or prairie, applies only to fires that are set on purpose. The phrase "sets fire to" refers to an act whose purpose is to start a fire, not an act that has a different purpose. Therefore, trial court did not err in refusing to instruct on strict liability in an action where Plaintiff claimed Defendant started a fire that damaged Plaintiff's property. Defendant allegedly started the fire when a bulldozer he was operating scraped a rock and started the fire. That act could not fall within the statute, the court held. Minto v. Sprague Auraria media center personnel were laid off supposedly for lack of funding. Two employees appealed their terminations to the Personnel Board. The ALJ concluded that Auraria's actions regarding one of the employees were arbitrary and capricious, but the actions towards the other employee were not. The Personnel Board reversed the determination that Auraria acted arbitrary and capricious as to the one employee. On appeal, the court of appeals held that the Personnel Board's reversal of the ALJ's determination that Auraria had acted arbitrarily and capriciously was itself an arbitrary and capricious decision. The court concluded that the ALJ's factual findings were supported by the record and that the Personnel Board's conclusion that Auraria did not act arbitrarily and capriciously had no reasonable basis in law. The court affirmed the Personnel Board's conclusion that Auraria did not act arbitrarily and capriciously as to the other employee. Rice v. Auraria Higher Education Center Property owners' appeal was stayed, where owners declared chapter 11 bankruptcy. Section 362 of the bankruptcy code prohibits the owners-debtors from pursuing an appeal where, as here, the original action was commenced against the debtor. The court rejected the owners' argument that they were "debtors in possession" and therefore entitled to proceed with the appeal under Bankruptcy Rule 6009. Way Architects, P.C. v. Rockrimmon Elderly Housing Partnership Transfer
of box plant to newly-formed subsidiary was a retail sale subject to
sales tax. But the trial court improperly held that certain pieces of
equipment were fixtures subject to sales tax because the court did not
first determine whether the equipment retained its legal status as tangible
personal property after being annexed to the real property. Finally,
the court rejected the taxpayers' argument that use tax was improperly
assessed for nonfixed assets. Appeal dismissed without prejudice for lack of a final judgment. The case arose out of an enforcement action by the attorney general under the Colorado Consumer Protection Act. The trial court bifurcated the trial and conducted phase I of it. Phase I involved only a few consumers, and resulted in $280,000 in civil penalties and other relief. The trial court certified that portion of the case as final under C.R.C.P. 54(b), and defendants appealed. The court of appeals fully reviewed ("scrutinized") the trial court's Rule 54(b) determination (which seems to be akin to de novo review, but not quite all the way there). The court held that the trial court's adjudication of phase I did not involve adjudication of a separate claim or claims, and therefore the Rule 54(b) certification was not proper. Therefore, the appeal had to be dismissed, without prejudice, for lack of an appealable judgment. State of Colorado ex rel. Salazar v. General Steel Domestic Sales, LLC June 15, 2005 The court of appeals will issue the following decisions tomorrow, including six published opinions: Published Opinions No.: 03CA1626 SMLL, L.L.C. v. Richard P. Daly, et al. Unpublished Opinions No.: 02CA1670 People v. Kevin Lamont Moore The state court's website has added a section on victim restitution, which has many useful links including answers to frequently asked questions. It's a good, and important, addition to the court's site. June 14, 2005 The court of appeals' oral argument calendar for August is here. June 13, 2005 The supreme court's announcements for today are here. The court issued 6 decisions, summarized below. The court granted cert. in one case, People v. Isaacks, No. 05SC87, on this issue: Whether a defendant’s failure to make corrections or additions to his presentence report when asked by the court constitutes an admission of information not related to the elements of the crime permits an aggravated sentence under Blakely v. Washington and Lopez v. People. Water court correctly dismissed the change of water right application when Ready Mixed Concrete failed to carry its burden of proving the historical consumptive use measure of the water right for change purposes. In the Matter of the Application for Water Rights: Ready Mixed Concrete Co. v. Farmers Reservoir and Irrigation Co. Under the totality of the circumstances, an accused who interrupts law enforcement during his Miranda advisement and twice states "why don't I have an attorney now," unambiguously requests the presence of counsel such that custodial interrogation must stop until an attorney is provided. Therefore, statements obtained after that request but outside the presence of counsel, violated Miranda and had to be suppressed. Justice Coats, joined by Justice Kourlis, dissented, concluding that the defendant knowingly waived his Miranda rights and that the request for counsel was not a request for counsel during questioning but an expression of "indignation" by the defendant that he had not been provided counsel already for the defense of the case. People v. Adkins Insulin-induced hypoglycemia may, depending on the particular facts of a case, constitute the affirmative defense of involuntary intoxication. Therefore, the trial court erred in not allowing the defendant to raise that defense independent of an insanity plea and defense. Justice Coats, joined by Justices Kourlis and Rice, dissented, concluding that there was nothing in the record to suggest that the defendant was deprived of a fair opportunity to present the defense of intoxication, involuntary or otherwise. Any error by the trial court, Justice Coats reasoned, was harmless. People v. Garcia Arbitrator had statutory power, under C.R.S. § 13-22-211, to modify award to eliminate confusion and make it clearer so as to effectuate the arbitrator's intent. Therefore, the arbitrator had the power to modify his award to eliminate an unintended double charge against the petitioner. The statute does not require that the confusion be evident on the face of the award or be patently ambiguous in order for the arbitrator to be able to modify it. But the arbitrator may not redetermine the merits. Sooper Credit Union v. Sholar Group Architects, P.C. District court had jurisdiction to rule on People's application for entry of judgment and sentence for breach of deferred sentence agreement. The district court had accepted an original guilty plea under a deferred sentencing agreement. Following the People's timely allegation of breach and application for entry of judgment and sentence, the district court accepted a second agreement between the defendant and the People, which called for the People to withdraw its application and for an extension of the original deferred sentence period for an additional four years. Shortly after the expiration of the four-year period for the original sentencing agreement, the defendant moved to withdraw his plea and for the dismissal of the charges. The district court permitted the district attorney to proceed on the application previously filed, found a breach, and entered judgment and imposed a sentence. The supreme court concluded that the district court could do so. Justice Martinez, joined by Justice Bender, dissented, concluding that the majority "tacitly endorses the use of conditional deferred judgment agreements that exceed the statutory four-year limit" of C.R.S. § 18-1.3-102(1), and thereby expanded the authority of the trial court to permit deferred judgment agreements that circumvent the maximum four-year period. People v. Simonds Responding to a question from the United States Court of Appeals for the Tenth Circuit, the supreme court held a contract was performable within one year and therefore not rendered void by the statute of frauds. The question from the circuit was Under Col. Rev. Stat. § 38-10-112 (1)(a), is an oral agreement void when: (1) the agreement contemplates performance for a definite period of more than one year but (2) allows the party to be charged an option to terminate the agreement by a certain date less than a year from the making of the agreement and when (3) the party to be charged has not exercised that option to terminate the agreement? Professional Bullriders Associations, Inc. v. Autozone, Inc. June 9, 2005 Today's court of appeals announcements are here. The court issued only unpublished decisions. June 8, 2005 The court of appeals will issue the following unpublished decisions tomorrow (no published decisions this week): Unpublished Opinions No.: 02CA1410 People v. Steven Anaya June 7, 2005 Gilbert Roman has been appointed by Governor Owens to the Colorado Court of Appeals. Soon-to-be Judge Roman will replace Judge Nieto, who is retiring at the end of the month. I wish Judge Roman many years of great service to the court. He comes to the court from the Rothgerber firm, and will make an excellent addition to the court. And I wish Judge Nieto all the best in retirement. June 6, 2005 The supreme court's announcements for today are here. The court issued 5 decisions, summarized below. The court also granted cert. in 4 cases. The issues in those cases follow the case summaries. In a C.A.R. 21 original proceeding arising out of a personal injury action, the court held that the trial court abused its discretion in ordering a blanket disclosure of all of the plaintiff's medical records and the past ten years of pharmaceutical records. Instead, the court held that the trial court should have tailored its order to only those records related to the injuries and damages claimed by plaintiff. The court also held that the plaintiff need not disclose her tax returns absent a showing of compelling need by the defendant (which the defendant had not shown). Alcon v. Spicer The supreme court resolved a conflict among its cases on the proper standard of review where constitutional error is alleged but where no objection was made at trial. The court held that if no objection is made, then the plain error standard applies. The Chapman standard applies, therefore, only where a proper objection is made. On the merits, the court concluded that the asserted instructional error was not plain error. Justice Bender, joined by Justice Martinez, specially concurred, concluded that the constitutional harmless error standard should apply, not plain error analysis. He concluded that on the merits, the alleged error was harmless beyond a reasonable doubt. People v. Miller Internal
Revenue Code section 2207A governs apportionment of all estate taxes,
federal and state, arising from the inclusion of a QTIP trust in the
decedent's estate. On the facts, the language of the testamentary documents
at issue was insufficient to waive apportionment of either federal or
state estate taxes. Katz,
Look & Moison, P.C. v. Shirley (In re Estate of Klarner) In
an initial determination to allocate parental responsibilities under
C.R.S. § 14-10-124(1.5), a court has no statutory authority to
order a parent to live in a specific location. Instead, the court must
accept the location of the parents and allocate parental responsibilities
according to the best interests of the child. Therefore, the trial court
abused its discretion in ordering the mother to live in close proximity
to the father. Spahner
v. Gullette In
determining what is in child's best interests, the court must consider
all of the relevant factors under CRS § 14-10-129(2)(c). Section
14-10-129 eliminated the 3-part test of In re Marriage of Francis, 919
P.2d 776 (Colo. 1996), including the presumption in favor of the parent
who had the majority of parenting time. Instead, under the statute both
parents equally bear the burden of demonstrating what is in the child's
best interests. On the facts, the trial court abused its discretion
by prematurely concluding that it would be in the best interests of
the child to remain in close proximity to both parents. That conclusion
had the effect of creating a presumption in favor of the father contrary
to the legislative intent of § 14-10-129(2)(c). In
re Marriage of Ciesluk The court granted cert in these cases: People v. Cross, No. 05SC17, on this question: Whether a conviction for harassment by stalking – emotional distress requires the jury to find that the defendant was “aware that his conduct was practically certain to cause, and did cause serious emotional distress.” Roberts v. People, No. 05SC140, on this issue: Whether the court erred in including an award of prejudgment interest as well as an award of post restitution order interest in its restitution order. Liggett v. People, No. 05SC142, on this issue:
Whether the district court reversibly erred by allowing the prosecutor, over defense objection, to repeatedly force petitioner to comment on the veracity/credibility of other witnesses. People v. Manzo, No. 05SC203, on these questions: Whether the traffic code offense of leaving the scene of an accident causing serious bodily injury – § 42-4-1601, CRS (2004) – is a public welfare strict liability offense for which there is no mental state requirement.
Whether the felony offense of leaving the scene of an accident involving
serious bodily injury – Colo. Rev. Stat. § 42-4-1601(1),(2)(b)
– requires knowing both involvement in an accident and that serious
bodily injury has occurred. June 2, 2005 The court of appeals' announcements for today are here. The court issued 8 published decisions, summarized below: Because city charter granted exclusive original jurisdiction to municipal court to hear claims arising under city's ordinances, district court lacked jurisdiction to hear plaintiffs' claims relating to the application and enforcement of those ordinances. Olson v. Hillside Community Church SBC By changing defendant's sentence from concurrent to consecutive, trial court did not impermissibly increase defendant's sentence in violation of defendant's double jeopardy rights. The defendant had been rejected from community corrections, and following the rejection, the district court required her new sentence to run consecutively to her sentence in another case. Because, under C.R.S. § 18-1.3-101(h), the trial court was authorized, following the defendant's termination from community corrections, to sentence her in the same manner as if she had been placed on probation, the trial court could order her sentence to run consecutively to the sentence in the other case. People v. Adams Legal malpractice lawsuits arising out of settlements of the underlying actions are not barred. On the merits, the court reversed summary judgment in favor of defendants, concluding that defendants failed to meet their initial burden to showing the absence of any material fact as to their negligence. White v. Jungbauer Trial
court erred in denying Plaintiff damages for damage to his corn crop,
loss of fertilizer and cleanup costs resulting from defendant's cattle
intruding on Plaintiff's land. Trial
court's orders denying defendant free transcripts and defendant's request
for appointment of counsel (for a Crim. P. 35(c) motion) were not final
appealable orders, and therefore defendant's appeal had to be dismissed.
People
v. Thomas Second postconviction motion was untimely, except for claims of alleged ineffective assistance of counsel and conflict of interest, because time bar of C.R.S. § 16-5-402(1) was not tolled during the litigation of defendant's first postconviction motion. The court also held that since the defendant had no statutory right to postconviction counsel, he could not claim, in his second postconviction motion, that he received ineffective assistance of counsel in his first postconviction motion. In other words, there is no cognizable claim for ineffective assistance of postconviction counsel. Judge Roy dissented in part, concluding that a claim for ineffective assistance of postconviction counsel is a cognizable claim. I expect that the supreme court will look at this case. People v. Silva A
mental impairment rating may not be combined with a nonscheduled impairment
rating to determine whether a claimant's whole person impairment exceeds
25% for purposes of determining the applicable benefits cap under C.R.S.
§ 8-42-107.5. The court also rejected the claimant's argument that
the Panel's interpretation of that statute and section 8-42-107(7)(b)(III)
violated equal protection and substantive due process.Dillard
v. Industrial Claim Appeals Office Trial court should have applied permanency hearing statute, C.R.S. § 19-3-702, in resolving motion seeking a definitive long-term decision regarding child's permanent placement. Because the trial court failed to do so, a remand was necessary. People In the Interest of C.M. June 1, 2005 The court of appeals will issue the following decisions tomorrow, including 8 published opinions (which I will summarize tomorrow afternoon as I have a meeting outside the office all morning): Published Opinions Nos.: 03CA2000 & 03CA2152 Marian Olson and Ida Mae Brueske v. Hillside
Community Church SBC; et al. Unpublished Opinions No.: 02CA0865 People v. Suzanna Neeley
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