December 17, 2017

Archives for July 2, 2014

Colorado Supreme Court: In POWPO Case, No Error to Give Jury Choice of Evils Instruction Requiring Reasonableness and Imminence

The Colorado Supreme Court issued its opinion in People v. Carbajal on Monday, June 30, 2014.

Colo. Const. art. II, § 13—Right to Bear Arms—Possession of a Weapon by a Previous Offender—Choice of Evils—Jury Instructions—Affirmative Defense.

Reversing the court of appeals, the Supreme Court held that the trial court did not err in instructing the jury that, to raise an affirmative defense to possession of a weapon by a previous offender (POWPO), defendant must show that he possessed the weapon for the purpose of defending himself, his home, or his property from what he reasonably believed to be a threat of imminent harm. This instruction properly reflects the Court’s precedent in People v. Blue, 544 P.2d 385, 391 (1975), which upheld the POWPO statute against a claim that it unconstitutionally infringed on the right to bear arms under Colo. Const. art. II, § 13, based on the legislature’s provision of a choice of evils affirmative defense. Because the choice of evils defense includes both a reasonableness and imminence requirement, the trial court did not err in including these requirements in its instruction.

Summary and full case available here.

Colorado Supreme Court: Electricity is a Service, Not Tangible Personal Property, so No Tax Exemption Available

The Colorado Supreme Court issued its opinion in Department of Revenue v. Public Service Company of Colorado on Monday, June 30, 2014.

Taxation—Sales Tax—Statutes—Construction.

The Colorado Department of Revenue petitioned for certiorari review of the court of appeals’ decision affirming respondent’s entitlement to a sales and use tax refund. The Supreme Court granted certiorari and now reversed.

Respondent Public Service Co. claimed that it is entitled to a sales and use tax refund for sales and use taxes paid on machinery purchased for the generation of electricity. CRS §§ 39-26-709 and 39-30-106 provide a sales and use tax exemption for machinery used for the production of tangible personal property. Public Service Co. argued that electricity constitutes tangible personal property and that it therefore is entitled to the sales and use tax exemption for its machinery used in the production of electricity.

The Court held that electricity is treated as a service, not as tangible personal property, under the sales and use tax statutes. Therefore, Public Service Co. is not entitled to the machinery tax exemption.

Summary and full case available here.

Colorado Supreme Court: District Courts Should Order Disclosure of Possibly Exculpatory Material Throughout Post-Conviction Proceedings

The Colorado Supreme Court issued its opinion in In re People v. Owens on Monday, June 30, 2014.

CAR 21 Original Proceeding—Death Penalty—CRS §§ 16-12-201 to -210—Discovery and Disclosure.

Owens and Ray petitioned pursuant to CAR 21 for relief from a series of discovery rulings of the district court relative to post-conviction proceedings in their respective death penalty cases. Each had moved to discover the prosecution’s investigation of the claims raised by Owens’s motion for post-conviction review, on the grounds that such disclosure was required either by Crim.P. 16 or by the federal or state constitution. The district court ruled that Crim.P. 16 did not impose obligations on the prosecution with respect to its preparation to meet defendants’ post-conviction claims, but that the prosecution continued to have obligations to disclose information that was both exculpatory and constitutionally material, without regard for the time of or impetus for its discovery.

The Supreme Court issued a rule to show cause why the district court’s ruling should not be disapproved for too narrowly limiting the prosecution’s discovery obligations during the unitary review proceedings prescribed by statute for all death sentences and convictions resulting in death sentences in this jurisdiction. The Court held that because Crim.P. 16 imposes disclosure obligations on the prosecution only with regard to materials and information acquired before or during trial, the district court did not err in finding it inapplicable to information acquired in response to defendants’ post-conviction claims. However, because the Court previously has held not only that a prosecutor’s constitutional obligation to disclose information favorable to an accused extends through the appeal of a death sentence, but also that district courts should order the disclosure of some possibly exculpatory material, despite being unable to find a reasonable probability that nondisclosure would change the result of the proceeding, the Court remanded the cases with directions for the district court to apply the due process standard and procedure announced in People v. Rodriguez, 786 P.2d 1079 (Colo. 1989).

Summary and full case available here.

Tenth Circuit: Unpublished Opinions, 7/1/2014

On Tuesday, July 1, 2014, the Tenth Circuit Court of Appeals issued three published opinions and seven unpublished opinions.

United States v. Freerksen

Creamer v. Larned State Hospital

Wofford v. Colvin

Knox v. Trammell

United States v. Velasquez

Mothershed v. State of Oklahoma

McNamara v. Brauchler

Case summaries are not provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.