December 17, 2017

Colorado Court of Appeals: Trial Court Erred in Omitting Jury Instruction on Right Not to Testify, but Reversal Not Required

The Colorado Court of Appeals issued its opinion in People v. Deleon on Thursday, November 16, 2017.

Sexual Assault—Child—Jury Instruction—Right Not to Testify—Hearsay.

Defendant was found guilty of two counts of sexual assault on a child.

On appeal, defendant contended that the district court erred by rejecting his tendered jury instruction on his right not to testify and by failing to instruct the jurors immediately before closing arguments of his constitutional right not to testify. The trial court did not err in choosing to give the jury the pattern jury instruction on defendant’s right not to testify because defendant’s proposed instruction went beyond the language of the pattern instruction. However, the trial court had an obligation to instruct jurors about defendant’s right not to testify before the attorneys made their closing arguments. Although the court violated Crim. P. 30 by not reading the instruction to the jury before closing argument, the court properly instructed jurors on defendant’s right not to testify during voir dire and reminded the sworn jurors of its earlier remarks. Reversal isn’t warranted because the error doesn’t cast serious doubt on the reliability of the judgment of conviction.

Defendant also argued that the district court erred by admitting into evidence the victim’s out-of-court statement to a Sexual Assault Nurse Examiner (SANE nurse) that defendant had been “kicked out of the house.” Defendant argued that by saying he got kicked out of the house, the victim implied that her mother had kicked him out because of the victim’s allegations, which implied that the victim’s mother believed those allegations. Even assuming that the statement was inadmissible hearsay, any error in allowing it was harmless because any inferences defendant drew from the statement were speculative, and the victim’s mother testified that she did not believe the victim.

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Plaintiff Established Sufficient Contacts Under Stream of Commerce Doctrine to Withstand Motion to Dismiss

The Colorado Supreme Court issued its opinion in Align Corp. Ltd. v. Boustred on Monday, November 13, 2017.

Stream of Commerce Doctrine—Personal Jurisdiction

In this case, the supreme court considers the stream of commerce doctrine to determine the prerequisites for a state to exercise specific personal jurisdiction over a non-resident defendant. The court concludes that World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980), sets out the controlling stream of commerce doctrine. That doctrine establishes that a forum state may assert jurisdiction where a plaintiff shows that a defendant placed goods into the stream of commerce with the expectation that the goods will be purchased in the forum state. Applying that doctrine to this case, the court then concludes that the plaintiff made a sufficient showing under that doctrine to withstand a motion to dismiss. Accordingly, the supreme court affirms the judgment of the court of appeals.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Taxpayer Entitled to File Statutory Claim for Relief After Expiration of Protest Period

The Colorado Supreme Court issued its opinion in OXY USA, Inc. v. Mesa County Board of Commissioners on Monday, November 13, 2017.

Tax Law—Taxpayer Error—Overvaluation

The supreme court holds that section 39-10-114(1)(a)(I)(A), C.R.S. (2017), allows abatement and refund for illegally or erroneously levied taxes based on overvaluation caused by taxpayer error. This result follows from the statute’s plain text that allows abatement for “overvaluation” without making a distinction between government- and taxpayer-caused overvaluations. The court rejects the court of appeals’ holding that Coquina Oil Corp. v. Larimer County Board of Equalization, 770 P.2d 1196 (Colo. 1989), and Boulder County Board of Commissioners v. HealthSouth Corp., 246 P.3d 948 (Colo. 2011), require a different result. Coquina was superseded by the 1991 legislative amendment that added “overvaluation” as a ground for abatement, and HealthSouth’s holding was limited to intentional taxpayer overvaluations. The supreme court reverses the judgment of the court of appeals and remands for further proceedings.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Risk-Benefit Test is Proper Test in Products Liability Action

The Colorado Supreme Court issued its opinion in Walker v. Ford Motor Co. on Monday, November 13, 2017.

In this case, the supreme court considered whether a trial court erred when it gave a jury instruction that allowed the jury to apply either the consumer expectation test or the risk-benefit test to determine whether a driver’s car seat was unreasonably dangerous due to a design defect. The court concluded that the risk-benefit test is the appropriate test to assess whether a product was unreasonably dangerous due to a design defect when, as here, the dangerousness of the design is “defined primarily by technical, scientific information.” Ortho Pharm. Corp. v. Heath, 722 P.2d 410, 414 (Colo. 1986), overruled on other grounds by Armentrout v. FMC Corp., 842 P.2d 175, 183 (Colo. 1992). The court further concluded that the jury’s separate finding of negligence did not render the instructional error harmless in this case.

Summary provided courtesy of Colorado Lawyer.

Colorado Eminent Domain Practice: The Essential Guide to Condemnation Law and Practice in Colorado

Colorado Eminent Domain Practice, the essential guide to condemnation law and practice in Colorado, will be updated and released this fall. Authored by Leslie Fields, a nationally renowned eminent domain practitioner who retired from Faegre Baker Daniels after 33 years of practice, the updated treatise includes insights into new and important eminent domain case law. On November 16th Ms. Fields will join with current FaegreBD partners, Jack Sperber, Brandee Caswell, and Sarah Kellner, as well as other eminent domain experts, to teach a course entitled Colorado Eminent Domain Practice: Books in Action. The course will draw from the key concepts and developments highlighted in the updated text.

Among the many cases featured in the updated treatise will be last year’s Colorado Court of Appeals decision in Town of Silverthorne v. Lutz, 370 P.3d 368 (Colo. App. 2016). In Lutz, the court upheld the trial court’s exclusion of evidence that the town had received funds from the Great Outdoors Colorado Program (GOCO) for the recreational trail project necessitating the taking of the Lutz property. Even though a state constitutional provision barred GOCO funds from being used to acquire property by condemnation, the court held that evidence of the special funding was not relevant to the town’s authority to condemn the easements under long established case law. The court further reasoned that a condemnation action is a special statutory proceeding that must be conducted according to statutory procedures, and the parties may not raise issues, such as project funding, which would change the character of a condemnation action. The court also stated that while the constitution prohibits GOCO funds from being used to pay the just compensation for condemned property, it does not preclude the use of the funds for other aspects of the project. Therefore, evidence of GOCO funding was properly excluded.

Finally, the Lutz court also rejected the property owners’ argument that evidence of GOCO funding was admissible to show that the town acted in bad faith in deciding that their property was necessary for construction of the trail project. For more on bad faith necessity challenges, as well as the other issues raised in Lutz, refer to the updated Colorado Eminent Domain Practice by Leslie Fields, and register for Thursday’s program using the links below.

CLE Program: Colorado Eminent Domain Practice

This CLE presentation will occur on Thursday, November 16, 2017, at the CLE Large Classroom (1900 Grant St., 3rd Floor) from 9:00 a.m. to 3:15 p.m. Register for the live program here and the webcast here. You may also call (303) 860-0608 to register.

Can’t make the live program? Order the homestudy here — CD Homestudy • Video OnDemandMP3 Audio

Colorado Court of Appeals: Heat of Passion Jury Instruction Impermissibly Lowered Prosecution’s Burden of Proof

The Colorado Court of Appeals issued its opinion in People v. Tardif on Thursday, November 2, 2017.

Jury InstructionsBurden of ProofHeat of Passion ProvocationAttempted Second Degree MurderFirst Degree AssaultMitigating FactorEvidenceDue ProcessSelf-DefenseDeadly Physical ForceSlow Motion VideoUnfair Prejudice—Prosecutorial Misconduct.

Tardif’s friend Soto was at a skate park and got into an argument with the victim. Tardif and Soto were members of the same gang, and the victim was wearing the colors of a rival gang. Soto called Tardif, and when Tardif arrived, Tardif and Soto walked up to the victim and Tardif shot him once in the abdomen. The victim fled and survived. Other people in the skate park recorded video of part of the initial argument between Soto and the victim as well as the shooting. A jury found Tardif guilty of attempted second degree murder, first degree assault, conspiracy to commit first degree assault, and three crime of violence counts.

On appeal, Tardif argued that the trial court erred by not instructing the jury that the prosecution had the burden to prove the absence of heat of passion provocation beyond a reasonable doubt. Heat of passion provocation is a mitigating factor for attempted second degree murder and first degree assault. Here, the heat of passion provocation instructions failed to inform the jury that the prosecution had to prove the absence of heat of passion provocation beyond a reasonable doubt. Therefore, the instructions, considered together, failed to properly instruct the jury on the prosecution’s burden of proof. Because Tardif presented sufficient evidence for a heat of passion provocation instruction, the error lowered the prosecution’s burden of proof and violated Tardif’s constitutional right to due process. Tardif also argued that the trial court’s self-defense instructions included several reversible errors. Self-defense is not an affirmative defense to conspiracy to commit first degree assault, and therefore, the court did not err in failing to instruct the jury that it was. But the trial court erred by instructing the jury on when deadly physical force may be used in self-defense because deadly physical force requires death, and here the victim did not die.

Tardif additionally argued that the trial court erred by admitting slow motion video recordings of the shooting. Although this evidence was relevant to explain the events around the shooting and to determine whether defendant acted with aggression or in self-defense, the probative value of the slow motion recordings was very low. This evidence was also cumulative of the real-time recording that was also admitted. Further, because Tardif’s state of mind at the time of the shooting was a disputed issue, the slow motion recordings’ low probative value was substantially outweighed by the danger of unfair prejudice. The slow motion recordings may have portrayed Tardif’s actions as more premeditated than they actually were. The trial court abused its discretion by failing to weigh the slow motion recordings’ probative value against their danger of unfair prejudice.

Tardif further argued that two statements by the prosecutor during closing argument constituted misconduct and required reversal. The court of appeals did not doubt the reliability of Tardif’s conspiracy conviction and concluded that the prosecutor’s allegedly improper statements did not constitute plain error.

The conspiracy to commit first degree assault conviction was affirmed. The remaining convictions were reversed and the case was remanded with directions.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Corporation with No Property or Payroll of Its Own Need Not Be Included on Tax Return

The Colorado Court of Appeals issued its opinion in Agilent Technologies, Inc. v. Colorado Department of Revenue on Thursday, November 2, 2017.

Holding CompanyPropertyCorporate Income Tax ReturnsCombined Returns.

Agilent Technologies, Inc. (Agilent) is incorporated in Delaware, but during the years at issue (tax years 2000 to 2007), it maintained research and development and manufacturing sites in Colorado. Agilent timely filed corporate income tax returns for these years. Agilent Technologies World Trade, Inc. (WT) is a subsidiary of Agilent and is incorporated in Delaware. It was formed as a holding company to own foreign entities operating solely outside the United States. As a holding company, WT does not own or rent property, has no payroll, and does not advertise or sell products or services of its own.

For federal tax purposes, WT and the foreign entities elected to be taxed as a single corporation. Agilent did not include WT in its corporate tax returns for the years at issue. The Department of Revenue (Department) issued notices of corporate income tax deficiency requiring that Agilent include WT in its Colorado combined returns for the years at issue and assessed tax, interest, and penalties. Agilent contested the Department’s adjustments, and the director upheld the notices. Agilent sought review in the district court. The district court concluded that the Department was prohibited from requiring Agilent to include WT in its Colorado combined corporate income tax returns and entered summary judgment for Agilent.

On appeal, the Department contended that the district court erred when it held that WT was not an includible C corporation under C.R.S. § 39-22- 303(12)(c). Conversely, Agilent argued that C.R.S. § 39-22-303(8) required exclusion of WT from its combined return. C.R.S. § 39-22-303(12)(c) requires inclusion of a corporation in a combined report if “more than twenty percent of the C corporation’s property and payroll” is assigned to locations inside the United States. Because WT had no property factors, although it wasn’t prohibited from including WT, Agilent was not required to include WT in its Colorado combined tax return.

The Department also contended that the district court erred when it ruled that, as a matter of law, C.R.S. § 39-22-303(6) could not be applied as an alternative basis for including WT in Agilent’s tax return. It also contended that the economic substance doctrine should be applied to permit taxation of WT even in the absence of specific statutory authorization. C.R.S. § 39-22-303(6) authorizes the Department to allocate income and deductions among corporations that are owned or controlled by the same interests on a fair and impartial basis to clearly reflect income and avoid abuse. However, C.R.S. § 39-22-303(6) cannot be applied to allocate income among affiliated corporations that were not otherwise includible under C.R.S. § 39-22-303(8) to (12). Accordingly, the district court did not err in concluding that C.R.S. § 39-22-303(6) did not provide a basis for including WT in Agilent’s tax return. Further, it was not alleged that WT lacks a business purpose apart from reducing tax liability. Therefore, the economic substance doctrine does not provide an independent basis in this case for including WT in Agilent’s combined return.

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Expert Witness Need Not Recite Exact Statutory Language for ICWA Finding

The Colorado Court of Appeals issued its opinion in People in Interest of D.B. on Thursday, November 2, 2017.

Dependency and Neglect—Indian Child Welfare Act—Termination—Expert Witness—Hearsay.

This dependency and neglect proceeding was governed by the Indian Child Welfare Act (ICWA). Mother’s parental rights were terminated after the trial court determined that continued custody of the child by one of the parents would likely result in serious emotional or physical damage to the child due to the parents’ extensive substance abuse, extensive domestic violence, lack of housing, and lack of income to meet the child’s needs.

On appeal, mother contended that the trial court erred in terminating her parental rights without testimony from a qualified expert witness that her continued custody of the child would likely result in serious emotional or physical damage to the child, as required by the ICWA. The ICWA provides that a court may only terminate parental rights if it determines that there is proof beyond a reasonable doubt that the child is likely to suffer serious emotional or physical damage if the child remains in the parent’s care. Such determination must be supported by evidence that includes testimony from qualified expert witnesses. The statute does not mandate, however, that an expert witness specifically opine that the child is likely to suffer emotional or physical damage in the parent’s custody. Rather, the expert testimony must constitute some of the evidence that supports the court’s finding of the likelihood of serious emotional or physical damage to the child. Here, although the expert witness’s testimony did not track the ICWA language, the record as a whole contains sufficient evidence, including testimony from a qualified expert witness, to support the trial court’s determination that the child would likely suffer serious emotional or physical damage if placed in mother’s care.

Mother also contended that the trial court erred in relying on inadmissible hearsay statements in the termination report to conclude that she had failed to maintain sobriety and that the child would thus likely suffer serious emotional or physical damage if he remained in her custody. The trial court, however, had access to other admissible evidence to support its determination that mother had failed to maintain sobriety. Further, this was not the sole basis to terminate mother’s parental rights.

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Prosecutor’s Comment on Witness’s Credibility Did Not Constitute Plain Error

The Colorado Court of Appeals issued its opinion in People in Interest of T.C.C. on Thursday, November 2, 2017.

JuvenileDelinquentRobberyAssaultProsecutorial MisconductSentenceFeesWaiverIndigence.

After T.C.C. removed a package from the front step of Ipson’s neighbor’s house, Ipson confronted T.C.C. and told him to return the package. T.C.C. then slapped, punched, and swore at Ipson. A judgment was entered adjudicating T.C.C. delinquent of an act that would constitute robbery and third degree assault if committed by an adult. At sentencing, T.C.C. asked the court to waive all mandatory fees based on his indigence. Instead of ruling on the motion, the court deferred this decision to probation.

On appeal, T.C.C. contended that the prosecutor improperly vouched for Ipson’s credibility and truthfulness when he argued, “Certainly Mr. Ipson has no reason to make up that he got struck numerous times from [T.C.C.]” The prosecutor’s argument was a reasonable inference from the record and not improper.

T.C.C. also contended that the trial court erred in delegating the waiver decision to probation and in permitting a waiver of fees based on “good behavior.” The plain language of the statutes permits only the court to waive fees and surcharges based solely on a finding of indigence, not based on good behavior. Therefore, the court erred by not ruling on T.C.C.’s motion.

The judgment and sentence were affirmed, and the case was remanded for the trial court to rule on T.C.C.’s motion for waiver of fees and costs based on indigence.

Summary provided courtesy of Colorado Lawyer.

The Colorado Lawyer Self-Assessment Program

Editor’s Note: This is a guest post by Jonathan White of the Colorado Office of Attorney Regulation Counsel. You can find out more about the lawyer self-assessment survey on the OARC website

By Jonathan P. White, Office of Attorney Regulation Counsel

Colorado has launched its new lawyer self-assessment program designed to help lawyers better serve clients and simplify their professional lives. This program arises out of a multi-year initiative of a subcommittee of the Colorado Supreme Court’s Attorney Regulation Advisory Committee. Over 50 practicing lawyers have participated in the subcommittee. They have drawn from their professional experience to identify practices that promote client service, that lead to more efficient office management, and that allow lawyers to assess their practice’s ethical infrastructure. The subcommittee’s goal is to help lawyers assess their practice and identify points of excellence and areas for improvement.

There are ten individual areas of self-assessment:

  1. Developing a competent practice;
  2. Communicating in an effective, timely, professional manner and maintaining relations;
  3. Ensuring that confidentiality requirements are met;
  4. Avoiding conflicts of interest;
  5. Maintaining appropriate file and records management systems;
  6. Managing the law firm/legal entity and staff appropriately;
  7. Charging appropriate fees and making appropriate disbursements;
  8. Ensuring that reliable trust account practices are in use;
  9. Working to improve the administration of justice and access to legal services; and
  10. Wellness and inclusivity.

Ultimately, these self-assessments should help attorneys avoid grievances and alleviate some of the stress associated with practice, especially for solo and small firm practitioners and those new to practice. The self-assessments are voluntary and confidential. The Office of Attorney Regulation Counsel does not receive any personally-attributable answers. The assessments offer links to the Colorado Rules of Professional Conduct and to a variety of educational resources ranging from template forms to advisory opinions to articles on current professionalism issues.

Lawyers can now view and complete the self-assessments through the Office of Attorney Regulation Counsel’s website: https://www.coloradosupremecourt.com/AboutUs/LawyerSelfAssessmentProgram.asp. Lawyers can choose to take all ten self-assessments through an online survey platform accessible at the top of the previously-referenced webpage. This online platform may be used on a desktop computer, laptop, or mobile device. As an alternative, lawyers may also download the print/PDF survey through the same webpage. After completing either the online self-assessment or the print/PDF version, lawyers may claim up to three general credit hours and three ethics credit hours of continuing legal education. A CLE affidavit is available on the self-assessment program webpage, as well as through the online survey itself.

Colorado Supreme Court: Failure to Pay Funds to Third Party Constituted Knowing Conversion by Attorney

The Colorado Supreme Court issued its opinion in In the Matter of Kleinsmith on Monday, October 30, 2017.

Colorado Rules of Professional Conduct—Attorney Discipline—Conversion—Due Process—Equal Protection.

This attorney disciplinary proceeding required the supreme court to determine whether an attorney commits knowing conversion, in violation of Colorado Rules of Professional Conduct (Rules) 1.15A and 8.4(c), when he bills a client for services performed by a third party and then uses for his own purposes the client funds he received that were intended to pay for the third party’s services. This proceeding further required the court to determine whether the Presiding Disciplinary Judge’s reading of the Rules violated the attorney’s rights to due process and equal protection. The court concluded that in the circumstances presented here, the attorney’s actions constituted knowing conversion in violation of the Rules and that the Presiding Disciplinary Judge’s construction of the Rules to reach the same result did not violate any of the attorney’s constitutional rights. Accordingly, the court affirmed the orders of the Presiding Disciplinary Judge and the hearing board, including the order disbarring the attorney from the practice of law.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Defendant Not In Custody at Time of Interview so Suppression Order Reversed

The Colorado Supreme Court issued its opinion in People v. Sampson on Monday, October 30, 2017.

Miranda Warnings.

In this interlocutory appeal, the Colorado Supreme Court concluded that a conversation between defendant and a law enforcement officer that took place in a hospital did not constitute custody for Miranda purposes. Under the totality of the circumstances, the court concluded that a reasonable person in defendant’s position would not have believed that his freedom of action had been curtailed to a degree associated with a formal arrest. Assuming without deciding that giving Miranda warnings can be considered in determining whether a suspect is in custody, the court concluded that defendant was not in custody during any part of his conversation with the law enforcement officer. Therefore, the court reversed the trial court’s suppression order.

Summary provided courtesy of Colorado Lawyer.