July 25, 2017

Archives for April 11, 2016

Colorado Supreme Court Adopts Changes to Colorado Rules of Professional Conduct, Colorado Appellate Rules

The Colorado Supreme Court adopted Rule Change 2016(04), 2016(05), and 2016(06) last week, approving changes to the Colorado Rules of Professional Conduct and the Colorado Appellate Rules.

Rule Change 2016(04), adopted and effective April 6, 2016, enacts substantial changes to the Colorado Rules of Professional Conduct. Many of the changes were to the Comments to the Rules, and language was added to many comments about lawyers contracting outside their own firms to provide legal assistance to the client. Additionally, a new model pro bono policy was added to the Comment to Rule 6.1. The changes are extensive; a redline and clean version is available here.

Rule Change 2016(05) amended Rules 35, 40, 41, 41.1, and 42 of the Colorado Appellate Rules, adopted and effective April 7, 2016. The changes to the affected rules were extensive, and the Comments to those rules generally explain the changes. Rule 41.1 was deleted and incorporated into Rule 41. A redline and clean version of the rule change is available here.

Rule Change 2016(06), adopted and effective April 7, 2016, amended the Preamble to the Rules Governing the Practice of Law, Chapters 18 to 20 of the Colorado Rules of Civil Procedure. The Preamble addresses the Colorado Supreme Court’s exclusive jurisdiction and its ability to appoint directors of certain legal programs to assist the court. The Preamble also sets forth the court’s objectives in regulating the practice of law. A clean version of the newly adopted Preamble is available here.

For all of the Colorado Supreme Court’s adopted and proposed rule changes, click here.

Comments Solicited for Proposed Increase to Jurisdiction of County Courts

The Colorado Supreme Court is requesting comments regarding a proposed jurisdictional increase for Colorado’s county courts. The proposal to the supreme court, submitted by the Colorado Supreme Court Committee on the Rules of Civil Procedure, requests that the Colorado Supreme Court support legislation to increase the jurisdiction of the county courts from a $15,000 limit to a $35,000 limit. The committee suggests that increasing the jurisdictional limit of the county courts will promote access to justice by taking relatively low dollar value cases out of the district court and relieving the parties of the requirement to engage in the more complex and expensive procedures of the district court. The full proposal is available here.

Comments regarding increasing the county courts’ jurisdictional limits may be submitted to Christopher Ryan, clerk of the Colorado Supreme Court, via email at christopher.ryan@judicial.state.co.us or mailed to 2 E. 14th Ave., Denver, CO 80203. Comments must be received no later than 5 p.m. on June 10, 2016. Comments will be posted on the State Judicial website after the comment period has ended.

For all of the Colorado Supreme Court’s adopted and proposed rule changes, click here.

Colorado Court of Appeals: CRE 404(b) Modus Operandi Evidence May Only Be Admitted if Identity in Issue

The Colorado Court of Appeals issued its opinion in People v. Williams on Thursday, April 7, 2016.

In May 2012, the police gave a confidential informant $20 with which to buy cocaine. She went to defendant’s apartment and returned without the money and with a rock of cocaine. She wore a wire during the transaction, but neither party said anything that was definitively related to a drug deal. A week later, police obtained a warrant to search defendant’s apartment and failed to find the $20, cocaine, or any paraphernalia commonly associated with drug dealing. Nevertheless, defendant was charged with distribution of cocaine.

Before trial, the prosecution submitted a CRE 404(b) motion requesting to admit evidence of a drug deal in which defendant had been involved in February 2012. The prosecution asserted the evidence was necessary to establish “common plan, scheme, design, modus operandi, motive, and guilty knowledge,” and to rebut any assertion of mistake or accident. The judge who presided over the pretrial motion, who was not the same judge who presided over the trial, granted the prosecution’s motion, but limited the evidence’s introduction to modus operandi or common plan, scheme, or design.

After hearing evidence regarding the February and May 2012 drug deals, the jury convicted Williams on the May deal. He appealed, contending the court erred in allowing the prejudicial CRE 404(b) evidence. On appeal, the court of appeals found that modus operandi evidence should only be admitted when identity is at issue, except in domestic violence and sexual assault cases governed by statute. Because in this case defendant’s identity was not at issue, the trial court erred in admitting the prejudicial evidence as modus operandi evidence. The court further noted that even if modus operandi evidence were allowed in this type of case, it would not have admitted the evidence here because the February drug deal lacked striking similarities with the May drug deal.

Defendant’s conviction was reversed and the case was remanded for a new trial.

Colorado Court of Appeals: Universal Malice Requires Potential Harm to More than One Person

The Colorado Court of Appeals issued its opinion in People v. Anderson on Thursday, April 7, 2016.

Richard Anderson became depressed after his wife’s death and decided to commit suicide. After a night of drinking at a bar, he went to his car and pulled a gun on another of the bar’s patrons. He then left, and the other patron called the police. A police officer found him quickly and pulled him over in an isolated area with no other cars or people. Anderson shot at the officer multiple times, grazing his arm with one of the bullets, and the officer shot him, ending the conflict.

Anderson was charged with and convicted of attempted extreme indifference first degree murder; first degree assault, threatening a peace officer with a weapon; first degree assault, serious bodily injury with a deadly weapon; and first degree assault, extreme indifference. At trial, Anderson admitted shooting the officer but maintained that he did not mean to harm the officer but rather intended to have the officer shoot and kill him, and thus lacked the requisite mens rea for extreme indifference first degree murder. During trial, the jurors submitted five separate notes to the court, evidencing trouble reconciling the intent element of the extreme indifference charge. He was convicted and sentenced to a total of 108 years.

On appeal, Anderson contended the evidence was insufficient to support the extreme indifference conviction, the jury was improperly instructed on the mens rea element for both attempted extreme indifference murder and extreme indifference murder, his convictions for first degree assault violate double jeopardy, and his sentences are based on identical evidence and must run concurrently. The Colorado Court of Appeals agreed with his sufficiency challenge on the attempt conviction because his conduct only endangered one person. The court held that Anderson’s conduct was not the type that demonstrated the universal malice contemplated by the statute.

The court also agreed with Anderson that he should receive a single conviction for first degree assault because his three convictions violate double jeopardy. Since the three convictions were based on the same victim and the same act, they must be merged. The court did not address Anderson’s contentions about concurrent sentencing because of its double jeopardy finding.

The court of appeals vacated Anderson’s convictions for attempted extreme indifference murder, first degree assault (extreme indifference), and either first degree assault (peace officer) or (serious bodily injury), and remanded for correction of the mittimus.

Tenth Circuit: Unpublished Opinions, 4/8/2016

On Friday, April 8, 2016, the Tenth Circuit Court of Appeals issued four published opinions and four unpublished opinions.

United States v. Nowlin

Gray v. Gray

Fairbanks v. Lampert

Luevano v. Clinton

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