June 21, 2018

Colorado Court of Appeals: Single Notice Addressed to Married Homeowners Deemed Constitutionally Adequate

The Colorado Court of Appeals issued its opinion in Cordell v. Klingsheim on Thursday, May 31, 2018.

Tax Sale—Adequate Notice—Treasurer’s Deed—Due Process—Reinstatement Order.

The Cordells owned a tract of land in La Plata County. After they failed to pay taxes for several years, Heller purchased a tax lien for the property and assigned it to Klingsheim, who later requested a deed from the La Plata County Treasurer. Before issuing the deed, the Treasurer sent the Cordells a copy of the notice of application for a treasurer’s deed by certified mail. The notice was mailed to the Cordells in one envelope, using a New Mexico address listed for the Cordells in the county tax records. A return receipt was received indicating the notice had been received by Mr. Cordell’s mother. The Cordells did not redeem, and the Treasurer issued a treasurer’s deed to Klingsheim.

Sometime later the Cordells learned of the notice and filed suit seeking a declaratory judgment that they were the owners of the property and the treasurer’s deed was void. The trial court ruled that the Treasurer had not made a “diligent inquiry” in attempting to notify the Cordells that their land might be sold to satisfy the tax lien and voided the deed. The alternative basis for the decision was that the deed was void because no “separate notice” was mailed to Ms. Cordell. The Court of Appeals previously affirmed the voiding order but did not address the “separate notice” argument. On certiorari review, the Colorado Supreme Court concluded that the Treasurer fulfilled the diligent inquiry duty and the Treasurer’s transmission of the notice by certified mail satisfied due process, and the Court reversed and remanded the case. On remand to the Court of Appeals, the Cordells requested the division to consider the separate notice argument. The division declined to do so, and a mandate was issued reversing the voiding order and remanding the case to the trial court. On remand, the trial court issued a reinstatement order without substantive analysis of its own.

On appeal of the reinstatement order, the Cordells argued that the trial court was not required to reinstate the treasurer’s deed on remand because the Supreme Court’s holding reached only one of the two grounds on which the trial court rested the voiding order. Neither the Supreme Court nor the trial court reached the separate notice issue. Because the issue was not resolved, the Court of Appeals considered whether the trial court’s failure to consider the issue warrants reversal. Here, the Cordells were married and both were receiving mail at the same address. The Court concluded that notice mailed to both record owners in a single piece of mail is constitutionally adequate. Thus, the reinstatement of the treasurer’s deed on remand was proper.

The reinstatement order was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Attempted Murder Conviction Must Be Vacated When Arising from Same Event as Actual Murder Conviction

The Colorado Court of Appeals issued its opinion in People v. Johnson on Thursday, May 31, 2018.

Criminal Law—Murder—Accessory—Fifth Amendment—Double Jeopardy—Undisclosed Alibi Defense—Mistrial—Testimonial Hearsay Statements—Doctrine of Forfeiture by Wrongdoing—Residual Hearsay Exception—Complicity Jury Instruction—Lesser Included Offense—Transferred Intent.

Jackson and his friends were members of “Sicc Made,” a subset of the Crips gang. Jackson drove a vehicle to the apartment of E.O., a rival gang member, with the intention of shooting E.O. Victim Y.M. lived in E.O.’s apartment complex. Believing Y.M. was E.O., another “Sicc Made” gang member got out of Jackson’s car, walked over to an SUV, and shot Y.M. twice in the head, killing him instantly. When they realized they had killed the wrong man, the men turned and fired numerous shots into E.O.’s apartment. Defendant was convicted of first degree murder after deliberation, attempted first degree murder after deliberation, attempted first degree murder with extreme indifference, conspiracy to commit first degree murder, and accessory.

On appeal, Jackson first challenged the court’s decision to declare a mistrial after cross-examination of his ex-wife revealed an undisclosed alibi defense. A defendant may not elicit alibi evidence, absent good cause, without first complying with the Crim. P. 16(II)(d) alibi disclosure requirements. It is undisputed that the defense provided no notice to the prosecution of the alibi, despite receiving it a month before trial. The defense decided not to disclose the new information but to elicit it on cross-examination in violation of Rule 16. Further, the trial court carefully considered the parties’ arguments and its available options and was in the best position to assess the prejudicial impact. The trial court did not abuse its discretion in deciding to declare a mistrial.

Jackson next contended that the trial court erroneously admitted testimonial hearsay statements of uncharged co-conspirator Walker to law enforcement officials under the doctrine of forfeiture by wrongdoing and under the CRE 807 residual hearsay exception. However, (1) the prosecution proved by a preponderance of the evidence that Jackson forfeited his right to confront Walker because he caused Walker’s refusal to testify, and (2) the trial court did not abuse its discretion in admitting Walker’s statements under CRE 807.

Jackson also contended that the complicity instruction was erroneous. The jury instruction defining first degree murder after deliberation, when read with the complicity instruction, accurately required the jury to find that Jackson was aware that the shooter acted after deliberation and with the intent to cause the death of the victim. Accordingly, there was no error in the complicity instruction.

Finally, Jackson contended that the trial court erred in imposing two convictions and consecutive sentences for his attempted murder convictions. When a defendant attempts to deliberately kill one person but mistakenly kills a different person and is convicted of both the attempted murder of the intended victim and the actual murder of the unintended victim, the attempted murder conviction must be vacated because it is a lesser included offense of the murder conviction. Here, the undisputed evidence shows that the shooter and Jackson intended to kill E.O. and mistakenly killed Y.M., believing him to be E.O. Under the doctrine of transferred intent, Jackson’s specific intent to kill E.O. transferred to Y.M. and made him criminally liable for Y.M.’s death. Therefore, the attempted murder of E.O. after deliberation is a lesser included offense of the murder after deliberation of Y.M. The trial court’s error was obvious, substantial, and undermined the fairness of the proceeding.

The convictions of first degree murder after deliberation, attempted first degree murder with extreme indifference, conspiracy to commit first degree murder, and accessory were affirmed. The judgment for attempted first degree murder after deliberation was vacated and the case was remanded for correction of the mittimus.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Crim. P. 32(d) Does Not Allow Withdrawal of Pleas of Not Guilty by Reason of Insanity

The Colorado Court of Appeals issued its opinion in People v. Laeke on Thursday, May 31, 2018.

Criminal Procedure—Not Guilty by Reason of Insanity—Crim. P. 32(d)—Withdrawal of Guilty Plea—C.R.S. § 16-8-115.

The prosecution charged defendant with one count of criminal attempt to commit unlawful sexual contact and one count of indecent exposure. These charges were based on events that occurred while defendant was a patient at a psychiatric ward. Defense counsel entered an insanity plea on defendant’s behalf over his objection. The court ultimately accepted defendant’s insanity plea, and it found defendant not guilty by reason of insanity. Defendant spent almost 10 years at the Mental Health Institute. Shortly after being placed in the community, defendant filed a Crim P. 32(d) motion to withdraw his insanity plea, which the trial court denied.

On appeal, defendant argued that the court erred by denying his Rule 32(d) motion. A request to withdraw a plea under Rule 32(d) applies only to guilty pleas and nolo contendere pleas, not to pleas of not guilty by reason of insanity. Further, an insanity plea should not be treated as the equivalent of a guilty plea for purposes of Rule 32(d). Rule 32(d) did not apply to defendant’s request to withdraw his insanity plea.

The order was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Trial Court Committed Structural Error by Excluding Underage Spectators from Trial

The Colorado Court of Appeals issued its opinion in People in Interest of G.B. on Thursday, May 31, 2018.

Juvenile Delinquency—Sufficiency of the Evidence—Sexual Assault—Right to a Public Trial.

In this juvenile delinquency proceeding, a jury convicted 16-year-old G.B. of offenses that would, if committed by an adult, constitute felony sexual assault against the 15-year-old victim. The trial court adjudicated G.B. delinquent and sentenced him to the custody of the Division of Youth Corrections.

On appeal, G.B. challenged the sufficiency of the evidence that he knew the victim was incapable of appraising the nature of her conduct. However, the record evidence, including testimony about the victim’s drug and alcohol use and her testimony that she wasn’t able to move on her own and didn’t remember certain events from the night in question until she had nightmares and flashbacks months later, was sufficient to support a conclusion by a reasonable jury that G.B. knew the victim was incapable of appraising the nature of her conduct.

G.B. also contended that the trial court violated his right to a public trial by excluding, over his objection, all spectators during his cross-examination of the sexual assault nurse examiner, and by excluding all spectators under 18 from a significant portion of the trial. The trial court’s closure of the courtroom to all spectators under 18 was broader than necessary to achieve the trial court’s legitimate interest in protecting young children from exposure to age-inappropriate evidence. Further, the trial court failed to consider reasonable alternatives when it closed the courtroom to all spectators under 18. The trial court committed structural error by excluding from two days of trial all spectators under 18.

The judgment was reversed and the case was remanded for a new trial.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: One-on-One Voice Identification Procedure Overly Suggestive and Not Protected by Miranda

The Colorado Court of Appeals issued its opinion in People v. Jaquez on Thursday, May 31, 2018.

Criminal Law—Voice Identification—Fifth Amendment—Custodial Interrogation—Agent of the State—Miranda.

The victim of an armed robbery was directed by the police to speak with defendant while he was in custody to see if defendant would say anything to the victim. At the time, defendant was handcuffed in the backseat of a police vehicle with the window closest to him rolled down. Defendant was not warned of his Fifth Amendment rights under Miranda v. Arizona. Unlike a typical voice identification procedure, defendant was not merely asked to repeat the words heard by the victim during the robbery. Instead, defendant and the victim had a brief conversation during which defendant made statements that were nearly identical to the statements made by the robber. The victim identified defendant as the robber and based on this identification, he was arrested and charged with armed robbery. Defendant moved to suppress both the out-of-court voice identification and the statements he made during the voice identification procedure. The trial court denied the motion. The statements were admitted at defendant’s criminal trial as substantive evidence of his guilt. Defendant was convicted as charged.

On appeal, defendant contended that the trial court violated his Fifth Amendment right against self-incrimination when it admitted the statements he made to the clerk during his voice identification. Here, the statements were made during a custodial interrogation, and the clerk was acting as an agent of the state because he was acting at the specific direction of law enforcement officials. Further, the words spoken by defendant were not merely a voice exemplar used to identify him but were volitional statements used by the prosecution as substantive evidence of his guilt. Therefore, the admission of defendant’s statements made during a one-on-one voice identification procedure not preceded by Miranda warnings violated his Fifth Amendment right against self-incrimination. This error was not harmless beyond a reasonable doubt.

The conviction was reversed and the case was remanded for a new trial.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Including Landowners in Special District Violated Owners’ Rights to Due Process

The Colorado Court of Appeals issued its opinion in Landmark Towers Association, Inc. v. UMB Bank, N.A. on Thursday, May 31, 2018.

Special District—Taxation—Taxpayer’s Bill of Rights—Due Process—Injunction—Uniform Tax Clause of the Colorado Constitution—Mill Levy—Misappropriation of Bond Sales.

A developer created the Marin Metropolitan District, a special district, to comprise two separate projects, the Landmark Project and the European Village Project. The developer created the District as a means to use owners of condominiums in the Landmark Project to pay for improvements in the European Village Project. As part of his application to Greenwood Village for approval of the District, the developer submitted a Service Plan. Using dubious means and without notice to the Landmark Project buyers, the developer and his associates then voted in an election to organize the District and approve bonds and “taxes” to pay for the bonds. The District sold bonds to Colorado Bondshares. UMB Bank, N.A. held the bond sales proceeds in trust. Among other things, the Service Plan capped the debt service levy for the bonds at 49.5 mills, but the District imposed a levy of 59.5 mills. The developer drew on the funds, but the European Village Project infrastructure was never built.

Landmark Towers Association, Inc., a homeowners association, sued UMB, Bondshares, and the District (collectively, defendants), challenging the creation of the District. Landmark asserted that the special district can’t levy Landmark owners’ properties to pay for bonds issued by the special district, which funded improvements on other property, because the election organizing the special district, approving the bonds, and approving the levies paying for the bonds violated the Taxpayer’s Bill of Rights (TABOR) and the Landmark owners’ rights to due process. The district court ruled that the election was illegal; Landmark is entitled to injunctive relief preventing the District’s levy; the District’s mill levy rate exceeds the legal limit; Landmark owners are entitled to a refund of excessive assessments; and Landmark owners are entitled to a “refund” of misappropriated bond sale proceeds. It enjoined the District from trying to collect levies from the Landmark owners and ordered that the owners may recover bond proceeds misappropriated by the District’s creator under TABOR.

On appeal, defendants asserted that the district court erred in finding that including the Landmark Project in the District violated the Landmark owners’ rights to due process. Specifically, defendants argued that the levy was a tax, and property subject to a tax does not need to receive any benefit in return for the tax payments. Colorado law is clear that imposing a special assessment on property that doesn’t specially benefit from the funded improvements violates the due process rights of those property owners. Here, the Landmark project was included in the District only to use it as a payment source for improvements to other property, and Landmark receives no benefit from those improvements. Further, the “tax” is in substance a special assessment because it doesn’t defray the general expenses of government but funds a private venture’s infrastructure. Because the Landmark owners derive no benefit from the improvements, the special assessments violated the owners’ rights to due process.

Defendants also argued that the district court erred in weighing the equities in imposing the injunction. The district didn’t abuse its discretion in balancing the equities.

Defendants further contended that the injunction violated the Uniform Tax Clause of the Colorado Constitution because it means that only some of the property in the district can be taxed. First, it is undisputed that defendants raised this issue for the first time in their motion for reconsideration, which was too late. Second, the Uniform Tax Clause applies only to taxes, not special assessments. Third, the injunction doesn’t obligate the District to do anything with respect to other persons or property outside the Landmark Project. Fourth, the violation of the Landmark owners’ rights to due process under both the U.S. and Colorado Constitutions entitles them to the injunctive relief they request, as a matter of law. Therefore, the district court correctly ruled on this issue.

Defendants also contended that the district court erred in ruling that the District may not levy property taxes in excess of 50 mills. The mill levy rate imposed by the District exceeds that allowed by the statutorily required service plan approved by the City of Greenwood Village. Furthermore, it did not comply with the District’s Service Plan or the financing plan. Therefore, the 59.5-mill-rate levy was illegal.

Finally, defendants contended that the district court erred in ruling that the misappropriation of bond sale proceeds violated TABOR and in ordering a refund of those proceeds because the bond proceeds aren’t “revenue.” The bond proceeds at issue are borrowed funds, not “revenue” within the meaning of the relevant TABOR provision. Further, they aren’t subject to refund because they were lent to the District by a private, outside entity and not collected from property owners. Therefore, the owners may not recover bond proceeds misappropriated by the District’s creator under TABOR. Nor may the owners recover those misappropriated funds under other provisions of the Colorado Constitution because the District is not subject to those provisions. Therefore, the district court erred in ordering refunds of the misappropriated money.

The portion of the judgment ordering TABOR refunds was reversed. The remainder of the judgment was affirmed and the case was remanded.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Attorney Affidavit Did Not Put Privileged Information at Issue, Therefore Privilege Not Waived

The Colorado Supreme Court issued its opinion in In re State Farm Fire & Casualty Co. v. Griggs on Monday, June 4, 2018.

Attorney-Client Privilege—Implied Waiver.

In this original proceeding pursuant to C.A.R. 21, the supreme court reviewed the district court’s determination that petitioner State Farm Fire and Casualty Company impliedly waived the attorney-client privilege protecting communications between it and its former counsel when it submitted an affidavit from that former counsel to rebut factual allegations of discovery misconduct. The court issued a rule to show to cause why the district court’s finding of implied waiver should not be reversed and now makes that rule absolute. The attorney affidavit submitted in this case did not put privileged information at issue by asserting a claim or defense that depends on privileged information or attorney advice. Rather, the affidavit contained only factual statements that were intended to rebut allegations of discovery misconduct. Accordingly, the court concluded that the district court erred in finding that State Farm impliedly waived its attorney-client privilege on the facts presented.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: “Suicide, Sane or Insane” Means Intentional Commission of Self-Injurious Act

The Colorado Supreme Court issued its opinion in Renfandt v. New York Life Insurance Co. on Monday, June 4, 2018.

Life insurance Policies—Suicide Exclusion Clauses.

In this opinion, the Supreme Court answered a question of state law certified by the U.S. District Court for the District of Colorado. The Court was asked to interpret the meaning of the words “suicide, sane or insane” when used in life insurance policies. The Court concluded that, under Colorado law, a life insurance policy exclusion for “suicide, sane or insane” excludes coverage only if the insured, whether sane or insane at the time, committed an act of self-destruction with the intent to kill himself.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Formerly Secretary of State Properly Subject to Jurisdiction of Independent Ethics Commission

The Colorado Supreme Court issued its opinion in Gessler v. Smith on Monday, June 4, 2018.

Amendment 41—Independent Ethics Commission—Jurisdiction.

The supreme court considered whether Colorado’s Independent Ethics Commission (the IEC) had jurisdiction pursuant to article XXIX of the Colorado Constitution to hear a complaint based on allegations that then-Secretary of State Scott Gessler (the Secretary) breached the public trust by using money from his statutorily provided discretionary fund for partisan and personal purposes. The IEC investigated the complaint, held an evidentiary hearing, and determined that the Secretary’s conduct breached the public trust. The Secretary sought judicial review of the IEC’s ruling, arguing that the IEC lacked jurisdiction over the case, the relevant jurisdictional language must be narrowly construed to avoid unconstitutional vagueness, and the IEC violated his procedural due process rights. Both the district court and the court of appeals affirmed the IEC’s ruling.

The court held that relevant jurisdictional language in Colo. Const. art. XXIX, § 5 authorizes the IEC to hear complaints involving ethical standards of conduct relating to activities that could allow covered individuals, including elected officials, to improperly benefit financially from their public employment. The court further held that C.R.S. § 24-18-103 is one such ethical standard of conduct. This provision establishes that the holding of public office or employment is a public trust, and that a public official “shall carry out his duties for the benefit of the people of the state.” Because the allegations against the Secretary clearly implicated this standard, the court concluded that the complaint fell within the IEC’s jurisdiction and rejected the Secretary’s jurisdictional and vagueness challenges. Additionally, the court rejected the Secretary’s procedural due process claim because he failed to demonstrate that he suffered any prejudice as a result of the alleged violation.

The court of appeals’ judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Charge by Information of Class 4 Felony with Crime of Violence Statutorily Entitles Defendant to Preliminary Hearing

The Colorado Supreme Court issued its opinion in In re People v. Austin on Monday, June 4, 2018.

Preliminary Hearings.

Austin petitioned for relief pursuant to C.A.R. 21 from a district court order denying his motion for a preliminary hearing. The supreme court issued its rule to show cause why the order should not be disapproved, and the People responded. The court now makes the rule absolute and orders that Austin be given a preliminary hearing because he was charged by information with a class 4 felony committed as a “crime of violence” as defined in C.R.S. § 18-1.3-406(2)(a)(I)(B) and (II)(C), which statutorily entitles him to a preliminary hearing, whether or not he would actually be subject to mandatory sentencing for a crime of violence.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Trial Courts Must Review Claims in Amended Complaint to Evaluate Eligibility for Jury Trial

The Colorado Supreme Court issued its opinion in Mason v. Farm Credit of Southern Colorado on Monday, June 4, 2018.

ACA—C.R.C.P. 38—Right to a Jury Trial—Legal or Equitable—Basic Thrust Test.

This case concerns the right to a jury trial in a civil case. The supreme court considered whether trial courts must review the claims in a plaintiff’s amended complaint, as opposed to those in its original complaint, to determine whether a party is entitled to a jury trial under C.R.C.P. 38. The court concluded that its prior cases and the Colorado Rules of Civil Procedure require it to answer that question affirmatively. Accordingly, the court held that when a plaintiff amends its complaint and a party properly demands a jury trial under C.R.C.P. 38, the trial court should determine whether the case may be tried to a jury based on the claims in the amended complaint. The court further held that C.R.C.P. 38 permits a case to be tried to a jury when the claims in the plaintiff’s amended complaint are primarily legal, as opposed to equitable. Finally, after examining respondents’ amended complaint, the court concluded that respondents’ claims against petitioner are primarily legal. Thus, petitioner was entitled to a jury trial under C.R.C.P. 38.

The court of appeals’ judgment was reversed.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Survivor Statute Does Not Allow Personal Injury Award to be Limited

The Colorado Supreme Court issued its opinion in Guarantee Trust Life Insurance Co. v. Estate of Casper on Tuesday, May 29, 2018.

Unreasonable Delay and Denial of Insurance Benefits—Abatement—Actual Damages.

The supreme court considered the operation of C.R.S. § 13-20-101, Colorado’s survival statute, and C.R.S. § 10-3-1116(1), a statutory cause of action for the unreasonable delay or denial of insurance benefits. The court also considered the scope of the trial court’s authority to enter a final judgment nunc pro tunc.

The original plaintiff in this case died after receiving a favorable jury verdict but before that verdict had been reduced to a written and signed entry of final judgment. Defendant then moved to substantially reduce the jury award, arguing that the survival statute barred certain damages. The court concluded that the survival statute does not limit the jury’s verdict in favor of the original plaintiff. The court further concluded that an award of attorney fees under C.R.S. § 10-3-1116(1) is a component of the “actual damages” of a successful claim under that section and that, although the survival statute did not limit the damages awarded by the jury, the trial court abused its discretion by entering a final judgment nunc pro tunc.

The court of appeals’ judgment was affirmed in part and reversed in part.

Summary provided courtesy of Colorado Lawyer.