April 19, 2018

Colorado Supreme Court: Compliance with Departmental Policy Insufficient to Bring Seizure of Vehicle Within Exception to Fourth Amendment Warrant Requirement

The Colorado Supreme Court issued its opinion in People v. Quick on Monday, April 16, 2018.

Inventory Search—Impoundment.

The People brought an interlocutory appeal, as authorized by C.R.S. § 14 16-12-102(2) and C.A.R. 4.1, from a district court order granting Quick’s motion to suppress a gun found during an inventory search of his car. The district court initially denied the motion, but in light of the court of appeals’ opinion in People v. Brown, 2016 COA 150, __ P.3d __, it found that where Quick was merely cited, and not actually arrested, for driving with a suspended license, and where the only justification offered for seizing his car was instead the likelihood that he would continue to drive and thereby endanger public safety, the initial seizure of his car did not fall within the community caretaking exception to the probable cause and warrant requirements of the Fourth Amendment.

The supreme court affirmed the district court’s order. Compliance with a departmental policy or procedure is insufficient in and of itself to bring the seizure of a vehicle within an exception to the Fourth Amendment warrant requirement. Moreover, seizing a vehicle to prevent the driver from continuing to drive with a suspended license does not fall within the specific community caretaking exception.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Seizure of Vehicle Not Justified as Exercise of Police Caretaking Function

The Colorado Supreme Court issued its opinion in People v. Brown on Monday, April 16, 2018.

Inventory Search—Impoundment.

The People petitioned for review of the court of appeals’ judgment reversing Brown’s drug-related conviction on the ground that his motion to suppress should have been granted. See People v. Brown, 2016 COA 150, __ P.3d __. The district court found that the contraband in question was discovered during an inventory search of defendant’s vehicle, the conduct of which was within the officers’ discretion according to the policies and procedures of the Aurora Police Department, even though they had already decided to issue a summons rather than arrest defendant for driving with a suspended license. By contrast, the court of appeals found that in the absence of an arrest, seizing defendant’s vehicle to provoke an inventory of its contents could not be justified as an exercise of the police caretaking function, and in the absence of any other recognized exception to the probable cause and warrant requirements of the Fourth Amendment, violated its prohibition against unreasonable searches and seizures.

The supreme court affirmed the court of appeals’ judgment. The record failed to demonstrate that seizure of defendant’s vehicle was justified as an exercise of the police caretaking function or was otherwise reasonable within the meaning of the Fourth Amendment, regardless of local ordinances or police policies and procedures broad enough to grant the officers discretion to impound the vehicle of a driver merely summoned rather than arrested for driving with a suspended license.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Judge Committed Reversable Error by Not Recusing Where Judge Was Previously GAL in Different Case Involving Mother

The Colorado Court of Appeals issued its opinion in People in Interest of C.Y. and J.O. on Thursday, April 5, 2018.

Dependency and Neglect—Recusal—Disqualification.

In this dependency and neglect proceeding, during the termination hearing, the judge realized she had served as a guardian ad litem (GAL) on a different case involving mother’s oldest child. The judge declined to recuse herself from the case over mother’s objection and terminated mother’s parental rights.

On appeal, mother contended that the judge erred by not recusing herself from the termination hearing based on her having served as the GAL of mother’s older child in 2005. The Code of Judicial Conduct requires judges to disqualify themselves in any proceeding in which their impartiality might reasonably be questioned. Here, both the GAL and the Department of Human Services discussed the 2005 case and urged the court to rely on it when ruling on the termination motion, which the court did. Under these circumstances, the judge created the appearance of impropriety by presiding over the case and abused her discretion by not recusing herself.

The judgment was reversed and the case was remanded for a new termination hearing before a different judicial officer.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Excess Insurer Must Step Into Shoes of Insured and Plead Primary Bad Faith

The Colorado Court of Appeals issued its opinion in Preferred Professional Insurance Co. v. The Doctors Co. on Thursday, April 5, 2018.

Medical Malpractice—Primary Insurance Policy—Excess Insurance Policy—Equitable Subrogation —Bad Faith.

A medical malpractice suit was filed against Dr. Singh and other parties. The Doctors Company (TDC), the primary insurer, defended Dr. Singh in the suit as required by its primary liability policy. Preferred Professional Insurance Company’s (PPIC) insurance policy was an “excess policy,” which would cover any losses that exceeded TDC’s $1 million coverage up to an additional $1 million. As an excess insurer, PPIC did not have any duty to defend Dr. Singh in the suit. The plaintiff in the medical malpractice suit offered to settle the case with Dr. Singh for $1 million, the amount of TDC’s policy limits. Dr. Singh conveyed his desire to accept the settlement offer to both insurers, but TDC declined to settle the case. PPIC told Dr. Singh he should accept, and it paid the $1 million settlement. PPIC then filed suit against TDC for equitable subrogation to recover the amount paid. The district court granted summary judgment in PPIC’s favor without addressing TDC’s argument that PPIC was required to prove that TDC refused to settle in bad faith.

On appeal, TDC contended that the district court erred as a matter of law because an equitable subrogation claim brought by an excess insurer against the primary insurer to recover the amount paid in settlement can only be derivative of the insured’s rights. Thus, PPIC’s refusal to plead and present evidence that TDC acted in bad faith in declining to settle required dismissal of PPIC’s claim. An excess insurer seeking recovery under equitable subrogation for a primary insurer’s failure to settle a case against their mutual insured “steps in the shoes of the insured” and must plead and prove the primary insurer’s bad faith. Here, without an assertion that TDC acted in bad faith, PPIC’s equitable subrogation claim is not legally viable.

The order granting summary judgment for PPIC was reversed and the case was remanded for entry of judgment of dismissal in TDC’s favor.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Payments by Victim’s Compensation Board are Direct Result of Defendant’s Conduct and Properly Ordered as Restitution

The Colorado Court of Appeals issued its opinion in People v. Henry on Thursday, April 5, 2018.

Restitution—Victim Compensation Board—Rebuttable Presumption—In Camera Review.

A jury convicted defendant of third degree assault. The trial court imposed a two-year jail term and ordered defendant to pay $900 in restitution. Defendant objected to the amount, requesting additional documentation to support the restitution request and a hearing. The court denied the request for additional documentation and granted the hearing request. After an evidentiary hearing, the court upheld its order regarding the restitution amount because defendant failed to offer any evidence rebutting the compensation board director’s testimony.

On appeal, defendant contended that the record did not contain sufficient evidence to support the trial court’s decision to order him to pay $230 in restitution to the compensation board for the victim’s lost wages. C.R.S. § 18-1.3-603(10)(a) creates a rebuttable presumption: once the compensation board has established that it paid a victim a set amount, the defendant has the burden of introducing evidence to show that the amount paid was not the direct result of his criminal conduct. Here, the prosecution proved by a preponderance of the evidence that the victim had lost $230 in wages and that the compensation board had paid that amount to her, and defendant did not rebut the presumption.

Defendant also asserted that the trial court should have conducted an in camera review of the compensation board’s records. Because defendant’s request for an in camera review was speculative and not based on an evidentiary hypothesis, the court did not err in denying defendant’s request for an in camera review.

The order was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Defendant’s Exculpatory Statement to Police Admissible Under Rule of Completeness is Not Subject to Impeachment

The Colorado Court of Appeals issued its opinion in People v. Short on Thursday, April 5, 2018.

Sexual Assault on Child—Testimony—Credibility—Rule of Completeness—Exculpatory Statement—Hearsay Exceptions—Sentence.

A jury found Short guilty of sexual assault on a child and sexual assault on a child as a pattern of abuse.

On appeal, Short contended that the testimony of three witnesses improperly bolstered the victim’s credibility. Short did not object to any of this testimony. It was not improper for the therapist to testify as an expert as to the typical demeanor and behavioral traits displayed by a sexually abused child. It was also not improper for the detective to testify concerning his observations about child victim disclosures; he rendered no opinion about whether a child’s difficulty in disclosing something made it more or less likely that he or she was telling the truth. Finally, although the grandmother’s testimony that the victim “normally would not lie about something like that” was improper, it did not warrant reversal.

Short also argued that the trial court erroneously compelled him to forgo admitting an exculpatory part of a statement he gave to the police by telling him that, if that part of the statement was admitted, the prosecution would be permitted to expose the jury to the fact that he had previously been convicted of a felony. The trial court properly determined that Short’s otherwise inadmissible self-serving hearsay was admissible under the rule of completeness to qualify, explain, or place into context the evidence proffered by the prosecution. However, a defendant’s exculpatory statement to the police admissible under the rule of completeness is not subject to impeachment under CRE 806. Although the trial court erred, the error was harmless.

Short also contended and the People conceded that only one judgment of conviction and sentence should have been imposed in this case. The trial court incorrectly entered separate convictions for sexual assault on a child and sexual assault on a child as a pattern of abuse. The pattern of abuse count acts only as a sentence enhancer.

The judgment was affirmed in part and vacated in part, and the case was remanded with directions.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Prosecutor Committed Misconduct by Repeatedly Referencing Other Bad Acts Not Properly Admitted at Trial

The Colorado Court of Appeals issued its opinion in People v. Fortson on Thursday, April 5, 2018.

Sexual Assault on a Child—Prosecutorial Misconduct—Character Evidence—Other Acts Evidence.

A jury found Fortson guilty of one count of sexual assault on a child and one count of sexual assault on a child as a part of a pattern of abuse.

On appeal, Fortson contended that the prosecutor improperly referenced and elicited evidence of other acts of sexual assault and sexual misconduct for propensity purposes and that she did so without first seeking to admit the evidence, presenting an offer of proof, or obtaining a ruling. The prosecutor committed misconduct when she repeatedly introduced, referenced, and argued to the jury that defendant previously committed uncharged sexual assaults against four other girls and the victim. The prosecutor did not seek the admission of the alleged uncharged sexual assaults for a proper purpose and improperly used this evidence for propensity purposes. The prosecutor’s pervasive misconduct undermined the fundamental fairness of the trial and cast serious doubt on the reliability of the judgment.

The judgments of conviction were reversed and the case was remanded.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Ground Water Replacement Plan Violated Anti-Speculation Doctrine where Proponents Could Not Prove Beneficial Use

The Colorado Supreme Court issued its opinion in Front Range Resources, LLC v. Colorado Ground Water Commission on Monday, April 9, 2018.

Designated Ground Water—Anti-Speculation Doctrine—Attorney Fees.

The supreme court held that the anti-speculation doctrine applies to replacement plans involving new appropriations or changes of water rights of designated ground water. Here, a private company applied for a replacement plan involving designated ground water in an over-appropriated alluvial aquifer, to which defendants (parties believing the plan would impair their water rights) objected. Because the company could not demonstrate that it or another end-user would put the replacement-plan water to beneficial use, the court concluded that the company’s replacement plan violated the anti-speculation doctrine. It further concluded that the district court did not abuse its discretion in denying defendants attorney fees. The district court’s judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Absent Statutorily Authorized Order Reserving Restitution, Final Judgment Finalizes Restitution Amount

The Colorado Supreme Court issued its opinion in People v. Belibi on Monday, April 9, 2018.

Sentencing—Restitution.

The People petitioned for review of the court of appeals’ judgment reversing the amended restitution order of the district court, which substantially increased Belibi’s restitution obligation after his judgment of conviction. See People v. Belibi, No. 14CA1239 (Colo. App. May 14, 2015). Following the acceptance of Belibi’s guilty plea, the imposition of a sentence to probation (including a stipulation to $4,728 restitution), and the entry of judgment, the district court amended its restitution order to require the  payment of an additional $302,022 in restitution. The court of appeals held that in the absence of anything in the court’s written or oral pronouncements reserving a final determination of the amount of restitution, the initial restitution order had become final  and could not be amended. The supreme court affirmed the judgment of the court of appeals. A judgment of conviction, absent a statutorily authorized order reserving a determination of the final amount of restitution due, finalizes any specific amount already set. Therefore, the sentencing court lacked the power to increase restitution beyond the previously set amount of $4,728.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Annotation “RR” on Form Guilty Plea Insufficient to Reserve Final Restitution

The Colorado Supreme Court issued its opinion in Meza v. People on Monday, April 9, 2018.

Sentencing—Restitution.

Meza petitioned for review of the judgment of the district court (sitting as the court of direct appellate review pursuant to the simplified procedure for county court convictions), which affirmed the county court’s order granting a motion for additional restitution. See People v. Meza, No. 14CV33017 (Denver Dist. Ct. May 15, 2015). The county court ordered the requested additional amount of restitution, finding that the victim had suffered a loss of $936.85 that was not known to the People nor the court at sentencing, when restitution was initially, but not finally, set at $150. On appeal, the district court found that the annotation “RR” on the form guilty plea was sufficient to reserve the final amount of restitution and that the record supported the county court’s finding of an additional loss not known at sentencing; and it therefore affirmed the increase as having been sanctioned by C.R.S. § 18-1.3-603(3)(a). The supreme court reversed the district court’s judgment and remanded the case to the district court with directions to order reinstatement of the $150 restitution order entered prior to judgment of conviction. A judgment of conviction, absent a statutorily authorized order reserving a determination of the final amount of restitution, finalizes any specific amount already set. Because the court ordered no reservation in this case, it lacked the power to increase the amount of restitution it had previously set.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Trial Court Had Jurisdiction to Impose Constructive Trust where Sister Misspent Multi-party Funds

The Colorado Supreme Court issued its opinion in Sandstead-Corona v. Sandstead on Monday, April 9, 2018.

Implied Trusts—Probate Jurisdiction—C.R.S. § 15-10-501—No-Contest Clause.

This case raised multiple issues arising from a dispute between two sisters concerning their mother’s estate and funds contained in a multi-party account alleged to be non-probate assets. The supreme court first held that pursuant to C.R.S. § 13-9-103(3)(b), the trial court had jurisdiction to resolve the dispute over the funds in the multi-party account and to impose a constructive trust if appropriate because the facts presented a question as to whether the funds were part of mother’s estate. The court further concluded that the trial court properly imposed a constructive trust over these funds because the sister who was the surviving signatory on the multi-party account was in a confidential relationship with her mother and her sister, and she abused that relationship when she misspent the funds. Next, the court held that because an implied trust is included in the fiduciary oversight statute’s definition of an “estate,” the trial court properly surcharged the sister who was the signatory on the multi-party  account because she had misused the funds in the implied trust. Finally, the court found that although a no-contest clause that was contained in mother’s revocable trust was incorporated by reference into her will, by its plain language, that clause applied only to actions contesting the trust, not challenges to the will. Accordingly, the court held that the trial court erred in enforcing the no-contest clause against the sister who challenged the will. The court of appeals’ judgment was reversed and the case was remanded for further proceedings.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Only Privilege-Holder Can Waive Physician-Patient Privilege, and Only By Injecting Condition Into Case

The Colorado Supreme Court issued its opinion in Gadeco, LLC v. Grynberg on Monday, April 9, 2018.

Physician-Patient Privilege—Implied Waiver.

In this original proceeding, the supreme court considered whether the trial court abused its discretion when it found that defendant impliedly waived the physician-patient privilege as to his mental health records by asserting counterclaims for breach of contract, requesting specific performance, and denying the opposing parties’ allegations. The court affirmed its rule that only privilege holders—patients—can impliedly waive the physician-patient privilege, and they do so by injecting their physical or mental condition into the case as the basis of a claim or an affirmative defense. Correspondingly, an adverse party cannot place a patient’s mental condition at issue through its defenses, nor can a privilege holder do so by denying an adverse party’s allegations. Applying those rules, the court held that defendant did not waive the physician-patient privilege through his counterclaims or answer. The court concluded that the trial court abused its discretion by ordering defendant to produce his medical records for in camera review and made the rule to show cause absolute.

Summary provided courtesy of Colorado Lawyer.