December 11, 2017

Archives for July 10, 2014

Enlightenment Made Simple (Part 8): Is It Worth It?

rhodesWe want purpose, meaning, autonomy, happiness, and all the rest of what career and personal enlightenment have to offer. We also want getting them to be safe, easy, and certain. We don’t want to rock the boat. We want to be able to look around and know where we are. We want to be able to do the things we’ve always done, think the way we’ve always thought, but just be happier about it.

In other words, we want enlightenment to be different, but we also want it to feel as safe as the life we’re trying to leave behind.

Where in the world did we ever get such an idea? From ego. From the survival instincts lodged in the most ancient part of our brains. From our brains’ embedded practice of maintaining status quo. And from the collective expressions of those things in the organizations, cultures, firms, and other institutions that make up the milieu of our lives.

Challenge all that in the name of greater satisfaction and happiness? Better think twice. It’s not going to go well. Status quo gets old, but so does constantly having to create our chaotic new lives in the name of making them better. It’s fun at first, but eventually it feels like all we accomplished was to trade one kind of stress for another. It’s possible to get past that point, but a lot of people never do, it’s just so entirely demoralizing.

For some crazy reason, life is set up so the pursuit of enlightenment is optional. We can get it, but it’ll cost us, and the cost is high: we have to end the reign of ego. Most people won’t do it. Most people probably shouldn’t. Better for them if they don’t turn pro in the enlightenment game. Better if they keep the day job, don’t cash in the 401k.

That’s not cowardice. Nobody says you have to do this. After all, ego and status quo are effective: they get the job done, pay the bills. We challenge them at our own risk, and the people who do aren’t exactly good role models.

Ever notice that so many of the people we admire live unbalanced lives? It costs a lot to do be who they are and do what they do. They’re the creative fringe, the radical, aberrant few. They left the safe center of the bell curve behind long ago, and now they’re statistically irrelevant, three or more standard deviations out. They’re out there on the edge, delusional by any standard of normalcy. They’re no longer productive citizens — at least not as status quo measures it. They take irrationality to new extremes, become a danger to themselves and others. They think “getting a life” is overrated. They work too hard and don’t know when to quit. They’re often not likeable or fun or safe to be around.

They’re also the creative leaders we’ve always needed in our world, and need again right now.

And who knows, you might be one of them.

Kevin Rhodes has been a lawyer for nearly 30 years, in firms large and small, and in solo practice. Years ago he left his law practice to start a creative venture, and his reflections on that topic will appear in an upcoming article in the August and September issues of The Colorado Lawyer. His new ebook, Life Beyond Reason: A Memoir of Mania, chronicles his misadventures and lessons learned, which are the foundation of much of what he writes about here. Follow this link for a FREE book download (available in all formats — phone, Kindle, as a pdf. etc.). You can email Kevin at kevin@rhodeslaw.com.

Colorado Court of Appeals: Witness’s Factual Observation Admissible Despite Use of Word “Guilty” to Describe Defendant’s Appearance

The Colorado Court of Appeals issued its opinion in People v. Acosta on Thursday, July 3, 2014.

Discovery—Sanctions—Due Process—Relevant—Evidence—Ultimate Issue—Testimony—Summary Characterization—Hearsay—Bias.

Defendant attended a party in his apartment complex that was hosted by a couple he did not know. At least two children, including the 7-year-old victim, C.L., also were present. Defendant was asked to leave the party when someone observed him acting inappropriate with C.L. After speaking with C.L., the responding officer and a forensic interviewer determined that defendant had behaved inappropriately with her. Defendant subsequently was found guilty of sexual assault on a child.

On appeal, defendant asserted that the trial court erred by refusing to sanction the prosecution for withholding, until just before trial, the fourth interrogation of defendant, and for misrepresenting the content of the interrogation. However, defendant did not suffer any prejudice resulting from the late disclosure. Defendant received the evidence before the trial began, he was offered additional time to effectively review it but refused a continuance, and he was able to use the information during cross-examination of the detective. Additionally, the late disclosure was not willful. Hence, the trial court did not abuse its discretion in declining to sanction the prosecution for its late disclosure of evidence.

Defendant also asserted that the trial court erred by allowing J.H. to testify that defendant was “very guilty-looking” following the incident. A lay witness may testify about a summary conclusion based on the witness’s perception. Here, J.H. was physically present at the party where the assault occurred, and observed defendant immediately after the incident occurred with C.L. J.H. provided a summary characterization of her perception of how defendant looked and acted immediately following the incident. Therefore, the trial court did not abuse its discretion by allowing the challenged testimony.

Defendant further argued that the trial court erred by allowing C.L.’s father to testify that C.L. had attended a support group after the assault and had told him that thinking about the incident made her feel sick to her stomach. Because C.L.’s statements described her state of mind or physical condition resulting from the incident with defendant, the testimony did not violate the hearsay rules and was admissible.

Defendant additionally argued that admission of the father’s testimony violated the trial court’s orders and his right to an impartial judge when the court advised the prosecutor how the testimony might be admitted without providing discovery about the support group to defendant. The judge did not act as an advocate, and the testimony conformed with the court’s orders. Therefore, admission of this testimony was not error. The judgment was affirmed.

Summary and full case available here.

Colorado Court of Appeals: Defendant Knowingly, Intelligently, and Voluntarily Waived Right to Counsel Despite Lack of Arguello Advisement

The Colorado Court of Appeals issued its opinion in People v. Schupper on Thursday, July 3, 2014.

Indigent—Court-Appointed Counsel—Right to Counsel—Advisement—Recusal—Bias.

On September 7, 1995, defendant was charged with a single count of felony theft. After numerous hearings on defendant’s claim that he was indigent and had requested court-appointed counsel, defendant’s request ultimately was denied. He represented himself at trial and was found guilty of theft.

On appeal, defendant contended that the trial court erred when it determined he was not entitled to court-appointed counsel based on the collection investigator’s report. The Court of Appeals affirmed the trial court’s judgment.

First, defendant did not meet his burden to prove he was indigent. Second, the trial court’s finding that defendant “lived a luxury lifestyle” was supported by the evidence introduced at numerous hearings over a period of six months. Therefore, the trial court did not abuse its discretion in determining that defendant was not entitled to court-appointed counsel.

Defendant next contended that the court erred by failing to provide him an express advisement concerning his right to counsel before forcing him to proceed pro se at trial. The trial court never gave defendant an express advisement of his rights after it decided defendant was not entitled to court-appointed counsel. The record establishes that defendant knew of his right to counsel, his right to court-appointed counsel if he was indigent, and the importance of having counsel. Also, defendant is highly educated, and he understood the charges against him and the possible penalties from those charges. Defendant demonstrated that he understood his Fifth Amendment right to remain silent, as well as his right to subpoena and confront witnesses. Based on the totality of these circumstances, defendant knowingly, intelligently, and voluntarily waived his right to counsel.

Defendant further contended that Judge Schwartz erred in denying his repeated requests for recusal based on the court’s alleged bias. Rulings of a judge, including an indigency determination, are not sufficient in themselves to show bias or prejudice. Additionally, although Judge Schwartz may have been a material witness in the perjury cases against defendant, the case would not be heard in his court. Therefore, it was not err for the court to deny defendant’s request for recusal. The judgment was affirmed.

Summary and full case available here.

Colorado Court of Appeals: Absence of Defendant During Allen Instruction May Have Prejudiced Jury

The Colorado Court of Appeals issued its opinion in People v. Payne on Thursday, July 3, 2014.

Allen Instruction—Constitutional Right—Jury Deliberations—Evidence—Theft—Value.

V.V.’s home was burglarized while he and his family were away. A neighbor, who had observed part of the burglary, reported that she had noticed a car parked near V.V.’s house. Four days after the burglary, police officers pulled over defendant and noticed that the vehicle he was driving matched the description the neighbor had given to the police. Defendant was subsequently found guilty of second-degree burglary and theft.

On appeal, defendant contended that his right to be present at his trial was violated when the trial court delivered a “modified Allen instruction” to the jury in his absence during jury deliberations and against his counsel’s objection. Because of the psychological influence his absence or presence may have on the jury, a defendant has a constitutional right to be present when a modified Allen instruction is read to a deadlocked jury. Therefore, the Court determined that defendant’s constitutional right was denied. Because the People failed to carry their burden of proving beyond a reasonable doubt that there was no possibility that defendant was prejudiced by his absence when the court read the instruction, defendant’s convictions were reversed.

Defendant also contended that the evidence was insufficient to support his conviction of theft of property valued between $1,000 and $20,000. V.V.’s testimony that the digital camera and video camera were worth a total of $780 was sufficient evidence of value for those items. However, V.V.’s testimony that the television cost $1,400 could not support an inference that the purchase price of the television was comparable to its fair market value at the time the offense was committed. Accordingly, the evidence was insufficient to sustain a conviction of class 4 felony theft of property valued between $1,000 and $20,000. The judgment was reversed, defendant’s sentence was vacated, and the case was remanded with directions.

Summary and full case available here.

Tenth Circuit: Bankruptcy Reorganization Does Not Create Separate Legal Entity

The Tenth Circuit Court of Appeals issued its opinion in ASARCO LLC v. Union Pacific Railroad Co. on Monday, June 23, 2014.

ASARCO, along with Union Pacific Railroad Corp. and Pepsi Co., operated in a four-square-mile area in Denver known as the Vasquez site, which was found to be environmentally contaminated. The EPA brought a CERCLA action against ASARCO. The CERCLA action was still pending when ASARCO filed for Chapter 11 bankruptcy in the Southern District of Texas. The EPA filed proofs of claim in ASARCO’s bankruptcy case to recover its expenses for cleaning the Vasquez site. ASARCO eventually moved for approval of a settlement agreement, in which it would agree to pay over $1.5 million to resolve its CERCLA claims at the Vasquez site and other sites, and the bankruptcy court approved the settlement on June 5, 2009. The bankruptcy plan was also approved, which reorganized ASARCO as ASARCO LLC and noted that all claims, including any pending environmental claims, would be paid in full on the effective date of December 9, 2009.

ASARCO LLC filed a lawsuit against Union Pacific and Pepsi on December 10, 2012, asserting that it paid more than its fair share for environmental remediation at the Vasquez site. ASARCO LLC brought two claims: a direct contribution claim under CERCLA, and a contribution claim as debtor-ASARCO’s subrogee under CERCLA. The magistrate judge recommended dismissal of both claims – as to the first claim, it found that the claim was untimely, as it was brought more than three years after the date the bankruptcy court approved the settlement. As to the second claim, the magistrate judge rejected ASARCO’s argument that it was a separate legal entity from debtor-ASARCO and it could not be subrogated to itself. The magistrate judge also noted that CERCLA provided the exclusive legal remedy to ASARCO’s claims. The district judge accepted the magistrate judge’s recommendations and dismissed the complaint in its entirety. ASARCO appealed to the Tenth Circuit.

ASARCO first argued that its claim was not barred by the statute of limitations. The Tenth Circuit commented that the plain language of the statute did not support ASARCO’s argument, since the statute refers to the date the judicially approved settlement is entered. The Tenth Circuit also noted that all of the case law cited by ASARCO counseled the same result, that the statute of limitations had expired prior to ASARCO’s filing of the complaint. As to the second argument, the Tenth Circuit denied that ASARCO became a separate legal entity after bankruptcy reorganization, and noted that an entity cannot become subrogated to itself. Because the direct contribution claim was time-barred and because ASARCO is not a subrogee, the Tenth Circuit affirmed the district court’s order.

Tenth Circuit: Unpublished Opinions, 7/9/2014

On Wednesday, July 9, 2014, the Tenth Circuit Court of Appeals issued one published opinion and four unpublished opinions.

Williams v. Colorado Springs Police Department

McCormick v. Parker

Frazier v. Flores

Sartori v. Susan P. Little & Associates, P.A.

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