May 29, 2008 Here are today's court of appeals announcements. The court issued 10 published decisions. Due to my schedule, I will not be able to post summaries until early next week. I apologize for the delay and any inconvenience. May 28, 2008 Here are yesterday's supreme court announcements. The court issued two decisions, summarized below. In addition, the court granted cert. in four cases. The questions presented in those appeals follow the case summaries. Following that is the list of decisions the court of appeals will issue tomorrow. Finally, below that, are the summaries of the court of appeals' published decisions from May 15. In an appeal arising from a suppression order suppressing statements made by the defendant, a recent Sudanese refugee to the United States, during a custodial interrogation, the supreme court held that because of the inadequate translation of the Miranda advisement, the substantial miscommunication between the defendant and the officer, and the defendant’s cultural background and limited intellectual ability, the defendant did not knowingly and intelligently waive his Miranda rights and agree to speak to the officer without a lawyer present. In addition, the court found that after the defendant unambiguously requested a lawyer, the officer did not honor the request by ending the questioning and leaving the room. Chief Justice Mullarkey wrote the majority opinion. Justice Eid, joined by Justices Coats and Rice, dissented, concluding that the defendant’s waiver was knowing and intelligent because his Miranda rights were adequately translated to him and because he had the “necessary level of rudimentary understanding” of those rights as required by People v. Al-Yousif, 49 P.3d 1165, 1172 (Colo. 2002). The dissenters would also have concluded that after requesting a lawyer, the defendant voluntarily initiated further communication with the detective and thereafter validly waived his right to counsel. People v. Redgebol The supreme
court held that the compensatory purpose of C.R.S. § 13-21-101
requires that a trial court calculate interest on the amount of the
final judgment, regardless of the jury’s determination. The court granted cert. in these cases: Catholic Health Initiatives Colorado v. City of Pueblo, No. 07SC905, on these issues:
Whether the court of appeals applied the proper test for religious activity.
Whether the test for religious activity applied by the court of appeals, with which Catholic Health must comply continually to retain its tax exemption, and which the City of Pueblo must apply in subsequent audits, is unconstitutional and creates an ongoing chilling and entangling effect.
Whether the court of appeals erred in its interpretation and application of the City’s sales and use tax exemption for religious organizations by applying a rule of broad and liberal construction which has heretofore been limited to property tax exemptions under Colorado Constitution, art. X, section 5. People v. Greenlee, No. 08SC10, on these questions:
Whether the court of appeals erred in holding that evidence of a defendant’s plan to shoot a woman and then hide her body made two months before he shoots a woman and hides her body is inadmissible as res gestae evidence at his murder trial.
Whether the court of appeals erred in not applying a plain error standard of review to the admission of the witness’s testimony about defendant’s plan.
Whether admitting evidence erroneously under a res gestae theory, when it might have been admissible under CRE 404(b), is reversible error. People v. Guatney, No. 08SC20, on these issues:
Whether a sex offender can request and accept a probationary sentence knowing he will refuse to discuss his offense, as required in treatment, but evade probation revocation proceedings by invoking the Fifth Amendment right against self-incrimination.
Whether the court of appeals erred by holding that a grant of use immunity would remove any threat of self-incrimination.
Krueger v. Ary, No. 08SC63, on these issues:
Whether the court of appeals erred in affirming the trial court’s decision not to instruct the jury, in accordance with C.J.I.4th 30:16, that the Subject Transfers were presumed to be unfair, unjust and unreasonable in review of the confidential relationship between the decedent and his caregiver.
Whether the court of appeals erred in affirming the trial court’s decision not to instruct the jury, in accordance with C.J.I.4th 34:16, that the Subject Transfers were presumed to be the product of undue influence in view of the relationship between the decedent and his caregiver, coupled with the fact that the caregiver was involved in the creation of the documents by which the transfers were made.
Whether the court of appeals erred in failing to consider and apply the compelling policy considerations that dictate that the presumptions set forth in C.J.I.4th 30:16 and 34:16 should be given to the jury, irrespective of whether the defendant has introduced some evidence rebutting the presumption. The court of appeals will release the following decisions tomorrow: Published Opinions 03CA1261 People v. William Destro Unpublished Opinions 03CA1262 People v. William Destro Here are the summaries of the court of appeals' published decisions from May 15: By inputting data (i.e., pushing buttons on a telephone) in response to computer-generated questions in calls to the unemployment benefits automated phone system, the defendant accessed a "computer system," as the term "computer system" is defined in C.R.S. § 18-5.5-101(6). But the court agreed with the defendant that the evidence and argument presented by the prosecution at trial, combined with the elemental jury instruction on computer crime, constituted an impermissible expansion of the charge as set forth in the information. The court held that the result was a constructive amendment to the charge, which is per se reversible. People v. Rice The trial court properly held the search of defendant's vehicle was consensual. The initial detention of the vehicle was a justified traffic stop. The officer did not give a ticket but instead just gave a warning. After the officer returned the license and registration, said good-bye, and stated that he was not going to issue defendant a ticket, defendant walked back to his car, at which point officer asked if he could search the vehicle. The defendant agreed, and under the circumstances the search was consensual. People v. Montalvo-Lopez District court did not err in failing to question a juror about her ability to deliberate fairly after learning that at one point in the deliberations the juror was emotionally upset and refusing to deliberate. On the morning of the second day of the trial, immediately prior to jury deliberations, the court discharged the alternate juror. During jury deliberations, the court received a note from the jury foreman indicating that one juror "shut down, became isolated, and began to draw." She declared herself bipolar and locked herself in the bathroom. The majority held that it was not an abuse of discretion for the the trial court to not question the juror. Judge Roy dissented, concluding that "the fact that deliberations resumed after a break and the foreman reported that 'all 12 jurors seem to be fine and are proceeding' did not substitute for an inquiry, because while it ay indicate appropriate deliberations, without more, it could equally indicate acquiescence by the juror." He would have granted a new trial. People v. Mollaun Insurance company that contracted with PERA to provide PERA disability retirement benefits argued that it acts as PERA’s agent because, by statute, it acts in place of PERA when determining disability retirement benefits. As such, it argued, because PERA is an instrumentality of the state, and is considered a public entity under the CGIA, PERA’s immunity under the CGIA extends to it as PERA’s agent. The court of appeals rejected that position and reversed the contrary conclusion of the district court. The insurer's status as a private corporation, even one that has entered a contract with a public entity, precluded its treatment as a public entity under the CGIA. Moran v. Standard Insurance Company Facts alleged in complaint would establish only nonfeasance of defendant, not misfeasance. The court found no special relationship or other circumstances that would justify imposing a legal duty on defendant, and therefore the trial court properly dismissed plaintiffs' claims. Western Innovations, Inc. v. Sonitrol Corporation Plaintiff sustained injuries when she slipped on an icy residential sidewalk. She claimed defendant negligently installed landscaping in a way that allowed water and ice to accumulate on the sidewalk. The trial court granted a directed verdict, finding plaintiff had failed to prove (1) that she had complied with the notice requirements of the Construction Defect Action Reform Act (CDARA), C.R.S. §§ 13-20-801 to -807, and (2) that the sidewalk’s icy condition was the result of a construction defect. The court of appeals reversed, concluding plaintiff had presented sufficient evidence to survive a motion for directed verdict. The court noted that although CDARA limits certain types of claims against construction professionals, , it does not alter the substantive elements of a plaintiff’s negligence claim. Specifically, CDARA does not require a plaintiff to plead or prove (1) that the plaintiff complied with the notice process, or (2) that the alleged injuries or damages arose from a “construction defect.” Because CDARA did not require plaintiff to prove anything more than the elements of her common law negligence claim, the trial court's directed verdict was incorrect. Land-Wells v. Rain Way Sprinkler and Landscape, LLC No-Fault Act in effect at the time did not create a duty for insurer providing insurance through an automobile policy issued outside Colorado to provide enhanced PIP benefits. Pollard v. State Farm Mutual Automobile Insurance Co. Plaintiffs were injured in an automobile accident as a result of an alleged dangerous condition (ice) on the E-470 overpass at Jordan Road on the E-470 right-of-way. The E-470 Authority moved to dismiss plaintiffs under the CGIA. The trial court denied the motion. The court of appeals affirmed, concluding that E-470 constitutes the type of road included within the waiver of immunity in C.R.S. § 24-10-106(1)(d)(I) for federal interstate, federal primary, or federal secondary highway systems, and thus, the trial court did not err in finding that defendant’s immunity was waived. Lauck v. E-470 Public Highway Authority C.R.S. §
13-64-403(11)
allows a person who holds a power of attorney to execute an arbitration
agreement, as part of a nursing home admissions contract, on behalf
of a patient who is unable to make a rational decision whether to execute
such an agreement. But on the record in this case, the court could not
determine whether the party who signed had authority to do so, so the
court remanded for further proceedings on that question. Moffett
v. Life Care Centers of America Ex-franchisee was sued by franchisor for breach of a covenant not to compete. In addition franchisee's new company (a corporation) was also named a defendant. In a preliminary injunction hearing, the trial court permitted franchisee, who proceeded pro se, to also represent his corporation. The court of appeals concluded that if the amount in controversy between the franchisor and franchisee's corporation exceeds $10,000, the corporation could be represented pro se by the franchisee. The court remanded for further proceedings on that issue. The court also remanded for the trial court to reconsider its denial of a preliminary injunction in the context of the covenant contained in a contract for the purchase and sale of a business. Keller Corporation v. Kelley In this workers’ compensation action, the ALJ denied temporary total disability benefits, finding that the claimant was responsible for the termination of his employment. The Panel affirmed. The court of appeals affirmed as well. The record reflected that claimant’s condition improved and he was released to return to work with some restrictions. But he was unable to work for employer because he violated employer’s “no tolerance” policy prohibiting the ingestion or use of illicit drugs. Gilmore v. Industrial Claim Appeals Office Following a traffic incident in which defendant provided false identifying information to a police officer, the People charged defendant with attempt to influence a public servant and identity theft, among other charges. At the preliminary hearing, the court found the facts sufficient to bind over for trial all the charges except those of attempting to influence a public servant and identity theft, which the court dismissed. The People appealed the dismissal of those charges. The court of appeals order the reinstatement of the charge of attempting to influence a public servant. The court noted that the statute (C.R.S. § 18-8-306) prohibits a person from attempting to influence a public servant using deceit with the intent of altering the public servant’s action. Actual influence is not required. Rather, the statute is aimed at attempts to influence public servants in their official capacities to improperly alter or affect the performance of their official duties. The evidence was sufficient to establish probable cause for that charge. The court, however, affirmed the dismissal of the identity theft charge. The court interpreted the term "thing of value" in the identity theft statute, C.R.S. § 18-5-902(1), by employing the statutory construction principle of ejusdem generis, which provides that where a general term follows a list of things in a statute, the general terms are applied only to those things of the same general kind or class as those specifically mentioned. Thus, the court concluded “thing of value” must be interpreted to apply only to those things that share the characteristics of the items listed in the identity theft statute. The court noted that the list of things in the identity theft statute includes items such as cash and things that can be lawfully exchanged for cash, or financial payments. They all have financial or economic value and can be lawfully obtained, or made in the case of a financial payment, through the use of a financial device or personal or financial identifying information. None is a public right, duty, or entitlement that cannot be lawfully obtained in exchange for payment. Therefore, the court rejected the People’s contention that, for purposes of the identity theft statute, the phrase “to obtain . . . any other thing of value” includes the nonpecuniary benefits of misleading and influencing the actions of a police officer, such as obtaining the use of another person’s driving record. People v. Beck May 23, 2008 Here are the court of appeals' announcements for Thursday. The court issued unpublished decisions only. The supreme
court will issue two decisions on Tuesday--No. 06SC558 Morris v. Goodwin,
and No. 07SA112 People v. Redgebol. Below are the summaries of the supreme court's decisions from today, this past Monday and last Friday. I was unable to get summaries done of the court of appeals' published decisions from May 15. I hope to post those early next week. In an original proceeding under C.R.S. § section 1-40-107(2) challenging the action of the Title Board in setting a title, the supreme court affirmed the title setting. The court held Initiative #57 contains a single subject in accordance with the Colorado Constitution. Further, the court held that the titles set by the Title Board are fair and accurate, and do not contain an impermissible catch phrase. Finally, the court determined that because the proponents’ amendments to the measure were made in direct response to comments from the directors of the Legislative Council, the initiative was not required to be resubmitted to the directors and the Office of Legislative Legal Services prior to its submission to the Title Board. In the Matter of the Title, Ballot Title, and Submission Clause for 2007-2008 #57 ("Criminal and Civil Liability of Businesses and Individuals for Business Activities") In an original proceeding, the supreme court issued a rule to show cause to consider whether the trial court erred by declaring a mistrial when the jury became deadlocked on the charge of first-degree murder against the defendant. The trial court refused to instruct the jury to return a partial verdict on the charge and its lesser-included offense of second-degree murder. The trial court also refused to poll the jurors on those offenses. The defendant offered affidavits from the jurors to support his claim that the jury would have acquitted him of the offenses of first- and second-degree murder. But the trial court refused to consider the affidavits and rejected the defendant’s argument that double jeopardy principles limited retrial to the lesser-included offenses of manslaughter and criminally negligent homicide. The supreme court held that a mistrial was manifestly necessary because the jury was deadlocked as to the first-degree murder charge. Consequently, double jeopardy does not bar retrial of the defendant on the first-degree murder charge or its lesser-included offenses of second-degree murder, manslaughter, and criminally negligent homicide. The court further held that the trial court properly refused the defendant’s requests to poll the jury as to the offenses of first- and second-degree murder and to consider the jurors’ affidavits as evidence of a partial verdict. The court therefore discharged the rule to show cause. Justice Martinez dissented, noting, "Although I agree with the majority that this court may not consider the jurors’ affidavits, which revealed that the jury acquitted the defendant of first- and second-degree murder, I disagree that the trial court had no authority or responsibility to conduct a partial verdict inquiry to determine if the jury acquitted Richardson of the greater offenses. The danger realized here is that, prior to the jury’s discharge, there was no procedure allowing the jury to report an acquittal on the greater charge, and yet, after the jury’s discharge, we cannot consider juror affidavits or testimony revealing the jury’s acquittal. Consequently, defendants such as Richardson may be retried, and thereby put in jeopardy a second time, for offenses on which they were in fact acquitted. Thus, the effect of the majority’s opinion is to prevent a future double jeopardy violation by assuring that a court cannot know about (or cannot legally recognize) the double jeopardy violation." In re People v. Richardson The supreme court held that the Colorado Education Association and Poudre Education Association did not make prohibited expenditures in violation of article XXVIII, section 3(4)(a) of the Colorado Constitution when they organized volunteer events for their members to distribute campaign literature on two weekends in support of Bob Bacon’s candidacy in state senate district 14 prior to the 2004 general election. Payment of union staff salaries for time spent organizing these events constituted “payments for communication solely with members and their families” under section 2(8) of article XXVIII, and thus fell within the article’s membership communication exception. The court also held that the associations did not make prohibited contributions under section 3(4)(a) when they organized these events for members. Allowing the same payments to be protected from regulation as expenditures yet prohibited as contributions would be contrary to the will of the electorate and result in an unreasonable application of article XXVIII. Thus, the court concluded the membership communication exception had to be extended to the definition of a “contribution.” In support of that construction, the court, construing article XXVIII consistently with the First Amendment, held that the unions’ conduct did not satisfy the definition of “contribution” under section 2(5)(a). Justice Coats and Justice Eid both filed dissents, and joined each other's dissents. Justice Coats concluded that the challenged conduct was "clearly a prohibited political expense . . . . I believe the CEA’s and PEA’s conduct in this case not only falls within the prohibition of article XXVIII, but actually lies at its heart." He said "the majority’s construction virtually stands the unambiguous language of this constitutional provision on its head." Justice Eid's dissent took issue with the majority's First Amendment analysis: "the question is not whether the First Amendment allows the union to conduct the challenged campaign activities, [but] . . . whether the campaign activities could be paid for with general funds, or whether segregated funds should have been used instead." She concluded that "I can see no reason to question the constitutionality of Colorado’s segregated-funds scheme, and thus no reason to read the membership communication exception so broadly that it swallows the prohibition on union contributions and expenditures." Colorado Education Ass'n v. Rutt A police officer
pulled over the defendant, after seeing defendant’s automobile
parked behind a commercial building late at night. The officer suspected
the vehicle’s occupants may have been involved in a burglary or
vandalism of the building. After identifying defendant and a passenger
and questioning both men about their behavior, the investigating officer
continued to briefly detain the vehicle while he inspected the exterior
of the building where the vehicle had been parked. While the investigating
officer was away from the vehicle, another officer noticed the smell
of marijuana emanating from the vehicle and the officers ultimately
seized drugs and drug paraphernalia from the vehicle. The trial court
granted defendant’s motion to suppress, ruling that the investigating
officer exceeded the scope of the investigatory stop when he continued
to detain the vehicle while inspecting the exterior of the nearby building.
The supreme court reversed, In an original proceeding under C.R.S. § section 1-40-107(2) challenging the action of the Title Board where the Board vacated, upon rehearing, a title it had originally set for a proposed ballot initiative 2007-2008 #61 (“Initiative”), the supreme court unanimously concluded the initiative satisfied the single subject requirement of article V, section 1(5.5) of the Colorado Constitution. A majority of the court then ordered the Title Board to set the title originally set by the Board before rehearing. The dissenters, Justices Rice, Coats and Eid, while agreeing that the initiative satisfied the single subject requirement, would have remanded for the Title Board to set a new title. In the Matter of the Title, Ballot Title, and Submission Clause for 2007-2008 #61 ("Federal Standards for Discrimination/Preferential Treatment by Colorado Governments") In an original proceeding under C.R.S. § section 1-40-107(2) challenging the action of the Title Board in setting a title, the supreme court affirmed the title setting. The court held that the initiative contained only one subject in compliance with article V, section 1(5.5) of the Colorado Constitution. The court also concluded that the titles set by the Title Board clearly express the subject of the Initiative and contained no catch phrases. Finally, the court concluded that amendments made to the initiative in response to comments from legislative staff did not violate the requirement that substantial amendments must be resubmitted to the directors of the Legislative Council and the Office of Legislative Legal Services. Justice Hobbs dissented, concluding that the initiative violated the single subject requirement. In the Matter of the Title, Ballot Title, and Submission Clause for 2007-2008 #62 ("Cause for Employee Suspension and Discharge") Here are the court of appeals' announcements for May 15. The court issued the following 12 published decisions: People v. Rice May 21, 2008 The supreme court issued two decisions on ballot title appeals last Friday, concerning proposed initiatives #61 and #62. I will summarize those decisions when I post the other outstanding summaries later this week. The court of appeals will issue the following unpublished decisions tomorrow: 05CA1284 People v. Manuel Benitez-Ramirez May 19, 2008 The supreme court's announcements for today are here. The court issued the following three decisions: In re People v. Richardson, Colorado Education Ass'n v. Rutt, and People v. Pacheco. The court did not grant cert. in any cases. Due to my schedule this week, I will not be posting summaries until Thursday or Friday. But I will post all the summaries of today's supreme court decisions and last week's court of appeals' decisions by the end of the week. Thanks for your patience. May 14, 2008 The court of appeals will release the following decisions tomorrow, including 12 published decisions. Due to my schedule, I may not be able to get summaries posted until next week. Published Opinions 05CA0931 People v. Nina B. Rice Unpublished Opinions 05CA1135 Delores Autobee, Robert Autobee, and the Estate of Eric J.
Autobee v. Colorado Department of Corrections; Joe Ortiz, individually
and in his official capacity as the Executive Director of the Colorado
Department of Corrections; Nolin Renfrow, individually and in his official
capacity as Director of Prisons of the Colorado Department of Corrections;
Gary Watkins, individually and in his official capacity as Warden of
the Limon Correctional Facility; A Estep, individually and in his official
capacity as Deputy Warden of the Limon Correctional Facility; Kip Strode,
individually and in his official capacity as Staff Lieutenant of the
Colorado Department of Corrections; and Edward Montour May 12, 2008 Here are today's supreme court announcements. The court issued 6 decisions, summarized below. The court did not grant cert. in any cases. In a case about the type of notice required to increase or decrease coverage and the effect of lare notice, the court concluded that the term “requirements” as it is used in the third sentence of the notice statute, C.R.S. § 10-4-110.5(1), as referring to the notice requirements set forth in the statute’s first sentence and not to the remedy provided for in the statute’s second sentence. The court construed the third sentence as providing an insured with the remedy of a full-term renewal of the insured’s existing policy, but only if the insurer fails to provide adequate notice to the insured before the expiration of the insured’s existing policy. The court construed the second sentence of the statute as a remedy provision which “automatically extend[s]” the existing policy for forty-five days at a prorated premium. Here, the insurer provided late, but adequate, notice five days before the policy expired. The late notice resulted in a forty-five-day extension of the policy at a prorated premium, but avoided a full-term renewal of the policy. Because the insured's loss occurred after the expiration of the forty-five-day extension, the loss was governed by the terms of the policy as renewed by the parties. Justice Eid concurred, agreeing with the majority's resutl and reasoning, but noting, "I would not resort to an examination of the statute’s legislative history." Granite State v. Ken Caryl Ranch The decision whether to request jury instructions on lesser offenses is a tactical decision that rests with defense counsel after consultation with the defendant. The supreme court concluded trial court and the court of appeals erred when they held that the defendant’s decision not to submit a lesser non-included offense instruction contrary to the objection of defense counsel was appropriate. The court also held that defendant's claim that the trial court erred by failing to give the lesser non-included offense instruction requested by his counsel is not precluded by the doctrine of judicial estoppel, and that defendant’s personal objection to the instruction requested by defense counsel does not constitute invited error or acquiescence. Justice Coats, joined by Justice Eid, dissented, concluding, "Because I agree with the court of appeals that the decision to request a lesser non-included offense instruction in this jurisdiction implicates a fundamental right, and therefore must remain with the defendant himself rather than his counsel, I respectfully dissent. More to the point, I believe the majority opinion simply fails to address the unique situation created by this jurisdiction’s liberal (and highly unusual) procedure allowing criminal defendants to present juries with offenses neither charged by, nor even included within charges filed by, the prosecution. Although they may use the similar term 'lesser offense,'none of the majority’s authorities – including both federal and state case law and ABA Standards – remotely contemplate an instruction on a 'lesser non-included offense,'and therefore none offer the slightest support for its conclusion." Arko v. People The correction of an illegal sentence renews the three-year deadline contained in C.R.S. § 16-5-402(1), for bringing a collateral attack on the defendant’s original judgment of conviction. Justice Coats, joined by Justice Eid, dissented, concluding that "the majority confounds the question of jurisdiction to impose sentence with the legality of the sentence actually imposed." Leyva v. People In a worker's compensation case, the supreme court held the term “suspend” as used in C.R.S. § 8-42-105(2)(c) means “stop temporarily” and not “bar or exclude.” Therefore, temporary total disability benefits that are suspended when a claimant fails to attend a rescheduled appointment with his or her attending physician accrue during the period of suspension and must be paid to the claimant once he or she attends an appointment with the attending physician. Because the claimant in this case eventually attended an appointment with her attending physician, she is entitled to receive the temporary total disability benefits that were withheld by her employer during the period of suspension. Justice Eid, joined by Justice Coats, dissented, concluding that § 8-42-105(2)(c) "allows an insurer to suspend 'payment' of compensation when an employee misses two appointments with his or her attending physician. That section does not say that compensation accrues during the period of suspension; rather, payment simply resumes under the statutory language when the employee 'appears at a subsequent rescheduled appointment.'” Sigala v. Atencio's Market In an original proceeding under C.A.R. 21, the supreme court followed existing Colorado case law excluding evidence of future tax liability, and declined to establish a new rule that would require consideration of a decedent’s future income tax liability when calculating economic damages in a wrongful death action. The majority recognized that the legislature could enact such a rule if it saw fit. Justice Rice, joined by Justice Coats and Justice Eid, dissented, noting, "I cannot see that a calculation of future tax liability is unduly speculative considering the other predictive calculations a trier of fact is asked to evaluate in determining net pecuniary loss. Though the tax laws may change, we have decades of historical data (almost a century in the case of the federal income tax) providing likely parameters for such changes. Such predictions are usually the province of competing experts, who provide competing calculations that the trier of fact can evaluate." In re Hoyal v. Pioneer Sand Petitioner filed a petition for dissolution of her marriage to Respondent. Four months after the dissolution petition was filed, Petitioner filed a declaratory judgment action seeking to determine the validity of the antenuptial agreement between her and Respondent. The trial court ruled that the agreement was invalid, and certified its judgment as a final judgment for purposes of appeal. Petitioner appealed to the court of appeals. While the appeal was pending, Petitioner died, and her estate pursued the appeal. The court of appeals then dismissed the appeal, finding Petitioner's death rendered the case moot. The supreme court reversed, holding that Petitioner's death did not moot the declaratory judgment action because resolution of that action will have a practical legal effect upon Respondent’s recovery in an ongoing probate proceeding. Schwartz v. Schwartz May 9, 2008 The supreme court will issue these six decisions on Monday: 06SC627 Granite State v. Ken Caryl Ranch 06SC798 Arko v. People 07SC60 Leyva v. People 07SC73 Sigala v. Atencio's Market & ICAO 07SA249 In re Hoyal v. Pioneer Sand 07SC353 Schwartz v. Schwartz Here are yesterday's court of appeals announcements. The court issued only unpublished decisions. May 7, 2008 The court of appeals will release the following unpublished decisions tomorrow: 05CA1023 People v. Roy Standingcrow May 5, 2008 Happy Cinco de Mayo! The supreme court has not posted any case announcements this morning, so I'm assuming they will not be releasing any (which makes sense since the court heard arguments last week, including arguments in Delta). May 2, 2008 According to the supreme court's announcements page, no cases will be announced on Monday. I don't know whether that means there will be no rulings on cert. petitions or not. Guess we'll have to stay in suspense till then. Gov. Ritter has appointed the new court of appeals judges: Sean Connelly, Richard Gabriel, and David Richman (who clerked for the same judge as I). The press release announcing the appointments is here. Congratulations to them and best wishes for a great tenure on the court. The appointments are effective July 1, so I expect they will all take office around then. May 1, 2008 Here are today's court of appeals announcements. The court issued 10 published decisions, summarized below. In a sexual
assault on a child case, the trial court erred in conducting the competency
hearing of the victim in the presence of the jury. The court of appeals
concluded that holding a competency hearing in the jury’s presence
is error since, where credibility is the central issue, the impact of
conducting the competency proceedings in the presence of the jury cannot
be diminished. Because here the competency hearing was held in the jury’s
presence, the defendant’s convictions had to be set aside. People
v. Wittrein Interpreting C.R.S. § 42-4-1301.1(8), the court of appeals concluded that probable cause was required to collect blood of unconscious defendant. Defendant was found unconscious at the scene of a traffic accident in which his passenger was killed. The court remanded to the trial court to determine whether probable cause was present at the time the blood was collected. In addition, the court concluded that DUI under C.R.S. § 42-4-1301(1)(a) is a lesser included offense of vehicular homicide under C.R.S. § 18-3-106(1)(b)(I). People v. Grassi In a case of first impression in Colorado involving consideration of a police officer’s identification following the pursuit and capture of a fleeing or just-apprehended suspect, the court upheld the trial court's denial of defendants motion to suppress. Defendant argued that the plainclothes officer did not identify him as part of a criminal investigation, but rather did so as a witness to the ongoing criminal act, in an unnecessarily suggestive one-on-one identification. The court of appeals' rejected that argument, concluding that "A police officer: (1) is a trained observer; (2) has a primary interest in capturing the right person to protect the public, his or her integrity, and that of the prosecution; (3) can be expected to be relatively calm, deliberate, and less suggestible when compared to a victim of, or witness to, a recent crime; (4) is familiar with the identification procedure and is unlikely to be startled or distracted by the circumstances or the scene." People v. Howard “No damages for delay” clauses are valid and enforceable in Colorado. But they are to be strictly construed against the owner or contractee. And active interference by an owner or contractor is a recognized exception to such clauses. Here, the record contained sufficient evidence for a jury to find such interference, and thus, the trial court did not err in denying defendant's motion for a directed verdict. Tricon Kent Co. v. Lafarge North America, Inc. In ordering respondent to cease and desist from acting as a booking agent, the Director of the Division of Registrations, interpreted the term “soliciting” in the definition of “outfitter” in C.R.S. § 12-55.5-102(5) to include “acting as a booking agent . . . for outfitters.” The court of appeals said that although this is a reasonable interpretation of the term “soliciting,” the term “soliciting” does not stand alone in the definition. Instead, it is part of the phrase “soliciting to provide . . . outfitting services.” The court concluded that in order to give effect to each statutory word, an "outfitter" is not one who simply solicits outfitting services, but one who solicits to provide outfitting services. Accordingly, a person who solicits on behalf of others who provide outfitting services is not an outfitter within the plain language of the statute. Thus, to the extent the Director ordered respondent to cease and desist from acting as a booking agent based on a determination that a booking agent is an “outfitter” within the definition of § 12-55.5-102(5), the Director erred. The court also concluded that the Director exceeded her statutory grant of authority by promulgating rules that regulate the booking agent activities of revoked outfitters. Judge Hawthorne dissented from that part of the decision. McCool, Director of the Division of Registrations, in her official capacity, on behalf of the Office of Outfitters Registration v. Richard K. Sears While deeds procured by fraud are generally voidable, a deed procured by "fraud in the factum" is void. Fraud in the factum occurs if a person has been fraudulently deceived about the nature of a document, so that he or she is excusably ignorant about what has been signed. Unlike other types of fraud, fraud in the factum yields an instrument that is void, and not merely voidable. Here, Plaintiff alleged fraud in the factum, and had supporting evidence in the form of affidavits (the signer of the deed was mentally incapacitated to some degree). Therefore, a material issue of fact existed on whether deed was void or merely voidable. If Plaintiff proves fraud in the factum, the deed is void. If Plaintiff does not, then the alleged mental incapacity at the time of the execution of the warranty deed, by itself, would render the warranty deed merely voidable. Delsas v. Centex Home Equity Company, LLC C.R.S. § 13-17-202(1)(a)(III), rather than a rule, establishes the period for accepting an offer of settlement. Thus, the three-day extension of time set forth in C.R.C.P. 6(e) does not apply. When a statute sets forth a particular procedure, court-promulgated rules simply do not apply. Therefore, the Plaintiff was not entitled to an extra 3 days to accept the statutory offer of settlement, and his acceptance was therefore untimely. Montoya v. Connolly’s Towing, Inc. City adopted regulations under the Areas and Activities of State Interest Act (AASIA), C.R.S. §§ 24-65.1-101 to -502. City asserted that CDOT must comply with these regulations. CDOT disagreed and sought declaratory relief, arguing it was exempt from the city’s regulatory scheme for three reasons: (1) CDOT is not subject to regulations promulgated under the AASIA because it is not a “person” within the meaning of that law; (2) Alternatively, the AASIA conflicts with, and implicitly has been repealed by, provisions in Title 43 of the Colorado Revised Statutes; and (3) Insofar as they may apply to CDOT’s core functions, the city’s regulations are preempted by Title 43. The court of appeals disagreed. The court concluded that CDOT is a "person" as defined in C.R.S. § 24-65.1-102(6). The court also held that there was no statutory conflict and that the city's regulations were not preempted by Title 43. Colorado Department of Transportation v. City of Idaho Springs In reading C.R.S.
§ 13-21-101(1), as applied in Rodriguez v. Schutt, the court of
appeals perceived a contradiction between the plain meaning of the term
“postjudgment interest” and language in that section that
seems to provide that the date of accrual for “postjudgment interest”
is the date the action accrued. The final sentence of § 13-21-101(1),
as read and applied by Rodriguez, thus lends In a quiet title
action, in response to service by publication, defendant's son faxed
an unsigned letter to the court with the deed of trust attached, stating:
(1) “I am writing this letter on behalf of my father,” (2)
“I have attached a copy of the recorded Deed of Trust, which has
not been satisfied or paid,” (3) “no service has ever been
attempted on my father in this case,” and (4) “We would ask
you to dismiss [the] quiet title action, since my Father’s interest
in the land is evident.” The trial court granted a default judgment,
and refused to set it aside. The court of appeals reversed, concluding
that the letter was a communication with the court that indicated defendant's
intention to defend. The letter showed defendant's interest in the property
by attaching the deed of trust, and requested that the court “dismiss
the Plaintiff’s quiet title action, since [the] interest in the
land
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