November 23, 2017

Archives for September 4, 2014

Model Criminal Jury Instructions Released by Colorado Supreme Court

On Wednesday, September 3, 2014, the Colorado Supreme Court announced the release of new Model Criminal Jury Instructions. The Colorado Supreme Court Model Criminal Jury Instructions Committee has been working to develop the new model instructions since its official creation in October 2011, and intends to keep the instructions up-to-date by issuing periodic supplements or new editions. Interim updates will be published on a new website called the “Reporter’s Online Update.”

The Model Criminal Jury Instructions are meant to be guidelines and are not mandatory. Individual cases may require additional instructions, or none of the model instructions may apply. A precise format for criminal jury instructions has never been mandated in Colorado, and the committee endeavored to accurately state the law in the instructions while using neutral language in order to maximize the instructions’ utility.

The Committee also created a helpful Desk Guide, which contains the Chief Justice’s order approving the model jury instructions, a hyperlinked list of chapters, and comments on the use of each chapter in the instructions.

For more information about the model criminal jury instructions, click here. To access the jury instructions via the Committee’s website, click here.

Bonnie McLean Appointed to Eighteenth Judicial District Bench

On Wednesday, September 4, 2014, the governor’s office announced his appointment of Bonnie McLean to the bench of the Eighteenth Judicial District Court, encompassing Arapahoe, Douglas, Elbert, and Lincoln counties. McLean will replace Hon. Vincent R. White, who is retiring. The appointment is effective January 13, 2015.

McLean is currently a magistrate in the Eighteenth Judicial District, where she presides over a juvenile court docket and is in charge of the district’s mental health, drug, and veterans’ treatment courts. She helped develop the first drug court in the Eighteenth Judicial District. Prior to her appointment as a magistrate in 2006, McLean worked as a deputy district attorney in the Eighteenth Judicial District, where she was in charge of the juvenile delinquency unit. She received her undergraduate degree from the University of Colorado and her law degree from the University of Denver.

 

Colorado Court of Appeals: Announcement Sheet, 9/4/2014

On Thursday, September 4, 2014, the Colorado Court of Appeals issued no published opinion and 25 unpublished opinions.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions. The case announcement sheet is available here.

Tenth Circuit: Unpublished Opinions, 9/4/2014

On Thursday, September 4, 2014, the Tenth Circuit Court of Appeals issued one published opinion and four unpublished opinions.

Meyers v. Pfizer, Inc.

Large v. State of Oklahoma

Porta v. United States Office of Personnel Management

Shue v. Lampert

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

Running Past Our Limits Update (Part Six): Science and Snake Oil

rhodesA friend shared a TED talk with me about how a rat with a severed spinal cord had its nervous system regenerated so it could run again. The researchers used a combination of chemical and electrical stimulation to get the rat’s legs moving involuntarily, but that wasn’t enough. So they created a robotic harness that allowed the rat to move if and when and where it wanted. After that, the rat’s spinal cord grew new connections. The scientists created an opportunity for healing, but the rat’s desire to move took over and made it a reality.

No wonder some scientists built a statue to honor lab rats. God bless that rat. It’s my hero; I want to be just like it. We all know you can’t move again after your spinal cord is severed. The rat proved us wrong. We also know you can’t win a marathon if your MS makes it hard to walk. How about if I be the lab rat who proves us wrong?

The rat needed scientific help, and so do I. Seriously, now: if by any stretch you know someone who is seriously researching MS and exercise, would you please email me with an introduction? Let me be honest: I don’t want ideas, like have I contacted the National MS Society. If you can think of it, I probably have already. What I’m looking for is a real relationship handoff to a real person. If you can do that, then many, many thanks.

Once we’ve got a research lab on board, we need a committed rat. No problem there. The rat introduces the X Factor: how does the desire to move generate healing? The scientists don’t know, and the rat’s not talking. If it could, it would probably sell us snake oil, and we’d probably buy.

Last year I wrote about “the placebo effect”: believing yourself into an altered state in which the healing you want actually happens, even though it’s not supposed to, there’s no rational reason why it should, and you’re actually putting your faith in a sugar pill.

I know one guy who got rid of his MS by visualizing miniature beavers chewing up his brain scarring (“Multiple Sclerosis” means “multiple scarring”). I’m not making that up. If that’s not a placebo I don’t know what is. I’ve haven’t tried his approach, but I’m not above a daily practice that includes mind tricks, even though I honestly believe some of what I do is pure snake oil.

Is it still a placebo if you don’t think it will work? The authors of a book on personal growth called The Tools answer that question by telling this “famous story about Niels Bohr, the great Danish physicist and father of quantum physics”:

A young physicist visited him in his home and saw a horseshoe hanging on the wall over the hearth. “Surely, professor, you don’t believe that a horseshoe will bring you good luck,” the young physicist exclaimed. “Of course not!” Bohr replied. “But I’ve heard that you don’t have to believe in it for it to work.”

(If you’re like me and wonder if this story is apocryphal, check this out. Sounds valid to me, both because Niels Bohr was quite a quotable guy, and because the story is in the spirit of quantum physics. Moving right along….)

And so we’ve got science, and we’ve got snake oil. Should work.

The next installment will be the last in this series. We’ll tackle the feeling that time seems to be running out on this experiment, and then we’ll be done.

For this year, at least.

Seven years ago, Kevin Rhodes left his law practice to start a creative venture. His reflections on what happened next appear in an article about law career exit strategies in the August issue of The Colorado Lawyer (here’s the introduction, and here’s the article). His new ebook, Life Beyond Reason: A Memoir of Mania, chronicles his misadventures and lessons learned, and is available as a FREE download at iTunes, Barnes & Noble, Scribd, or wherever else you normally get ebooks. Or follow this link to the distributor’s page, where it’s available as a FREE download in all formats — phone, Kindle, as a PDF, etc. You can email Kevin at kevin@rhodeslaw.com.

Colorado Court of Appeals: No Fourth Amendment Violation where Officers had Reasonable Suspicion for Pat-Down

The Colorado Court of Appeals issued its opinion in People v. Martin on Thursday, August 28, 2014.

Motion to Suppress—Investigatory Stop—Pat Down—Fourth Amendment—Search and Seizure—Right to Testify—Waiver.

After defendant refused to exit a restroom at a convenience store, police officers ordered him to face the wall and put his hands behind his back for a pat down search. During the pat down, defendant’s actions caused the officers to think he was attempting to flee. A struggle between defendant and the officers ensued, during which defendant and one of the officers were injured. A jury found defendant guilty of attempting to disarm a peace officer and resisting arrest.

On appeal, defendant asserted that the trial court erred by denying his motion to suppress evidence because the investigatory stop and subsequent pat down violated his Fourth Amendment right to be free from unreasonable searches and seizures. The Court of Appeals disagreed. The officer had reasonable grounds to initiate contact with defendant, both on the basis of conducting an inquiry into defendant’s welfare and on reasonable suspicion that he was unlawfully trespassing on the property when defendant remained in the bathroom for more than twenty minutes and subsequently refused to exit the bathroom after the police arrived. Additionally, even if the pat down was unlawful, defendant’s conduct of pulling away from the officers, attacking them, and resisting arrest constituted new offenses justifying a pat down.

Defendant contended that the trial court erred by denying his request to testify. Defendant requested to testify after he had waived the right to do so and defense counsel had rested the case. Although a defendant’s constitutional right to testify is not absolute, a defendant is not prohibited from testifying after waiving the right to do so and resting his or her case. Therefore, the case was remanded for hearing to reconsider defendant’s request.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Notice of Mechanics’ Lien Sufficient when Amended Lien Filed Same Day as Original Lien

The Colorado Court of Appeals issued its opinion in Sure-Shock Electric, Inc. v. Diamond Lofts Venture, LLC on Thursday, August 28, 2014.

Property—Mechanics’ Lien—Contract—Foreclosure—Notice—Equitable Apportionment—Prevailing Party—Costs.

Diamond Lofts Venture, LLC (DLV) was the developer and owner of a building project at 2210 Blake Street in Denver (Blake Street property). Sure-Shock Electric, Inc. (Sure-Shock), as the primary electrical contractor on the project, installed the electrical work throughout the building. Thereafter, Sure-Shock filed a mechanics’ lien for the unpaid contract price. Pursuant to their contract, DLV and Sure-Shock participated in arbitration. The arbitrator determined that Sure-Shock had proved its claims, and awarded it the principal amount claimed in the amended lien statement. The trial court affirmed the arbitrator’s award and entered a decree of foreclosure authorizing the sale of the DLV units to satisfy Sure-Shock’s lien.

On appeal, DLV contended that the trial court erred in allowing Sure-Shock to foreclose on its lien because Sure-Shock failed to comply with the statutory requirements necessary to perfect the lien. The Court of Appeals disagreed. Sure-Shock provided DLV proper notice more than ten days before filing the original lien statement. Sure-Shock was not required to provide an additional notice before it filed its amended lien statement the same day as the original lien to correct the amount claimed. Additionally, although DLV only owned seven of the twenty-nine units in the Blake Street property at that time, Sure-Shock’s lien statement sufficiently identified the property by listing the entire Blake Street property and naming only DLV as the property owner. Finally, Sure-Shock was not required to apportion the unpaid contract price according to the amount due for work on the DLV units, rather than claiming the full amount due.

In its cross-appeal, Sure-Shock contended that the trial court abused its discretion in apportioning the lien. A court may equitably apportion a blanket lien. Here, the trial court determined that an equitable apportionment should be based on the actual benefit enjoyed by each unit. Therefore, Sure-Shock was awarded 33.1% of the lien amount, which corresponded to the total square footage of the DLV units relative to the square footage of the entire Blake Street property. Because Sure-Shock’s electrical work benefited the entire Blake Street property, and Sure-Shock chose to encumber only the DLV units, Sure-Shock may not recover the entire unpaid amount of the contract. Therefore, the trial court’s apportionment was not an abuse of its discretion.

In addition, because Sure-Shock’s lien was determined to be valid, Sure-Shock succeeded on a “significant issue in the litigation.” Therefore, the trial court did not abuse its discretion in concluding that Sure-Shock was the prevailing party and awarding it costs. The judgment was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Defendant Not Required to Pay Restitution for Sexual Assault Nurse Exam

The Colorado Court of Appeals issued its opinion in People v. Rogers on Thursday, August 28, 2014.

Restitution—Sexual Assault Nurse Examiner (SANE) Examination—Forensic Evidence—Cost of Prosecution.

Defendant offered the victim a ride in his car and then drove her behind a building, where he parked the car. He threatened her with a knife and forced her to perform oral sex on him. After the victim called the police, she was examined by a sexual assault nurse examiner. Defendant pleaded guilty, and the court granted the prosecution’s request for the $500 in restitution to be paid to the Aurora Police Department for the cost of the examination.

On appeal, defendant contended that the district court erred in awarding restitution to the Aurora Police Department for the cost of the examination. The Court of Appeals agreed. The examination was for the purpose of collecting forensic evidence, so the Aurora Police Department was not a “victim” under the applicable version of the restitution statute. Additionally, the examination was not an “extraordinary direct public investigative cost” under CRS §18-1.3-602(3)(b). Further, because the examination was conducted beforeformal legal charges were filed, the cost of the exam was not recoverable as a cost of prosecution. The order was reversed and the case was remanded with directions.

Summary and full case available here, courtesy of The Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 9/3/2014

On Wednesday, September 3, 2014, the Tenth Circuit Court of Appeals issued three published opinions and three unpublished opinions.

Davison v. Grant Thornton LLP

Robbin v. City of Santa Fe

Lee v. Oliver

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