July 1, 2016

Colorado Court of Appeals: Note Written by Murder Victim was Testimonial Hearsay

The Colorado Court of Appeals issued its opinion in People v. McFee on Thursday, June 30, 2016.

L.E. was an in-house manager of a residential facility for people with HIV and AIDS. One night, a resident found her lying in a pool of blood in the hallway. By the time police arrived, L.E. was dead. A few months later, police arrested Jonathan McFee, L.E.’s ex-boyfriend, for the murder. At trial, numerous witnesses testified about hearing McFee threaten to kill L.E., and the prosecution introduced an audio recording of a statement muttered by McFee during a break in interviewing that sounded like “I did it. That bitch.” A handwritten note from L.E. was admitted into evidence, which expressed that McFee had threatened to kill her and it was only a matter of time until he succeeded. The jury convicted McFee of first degree murder, and he was sentenced to life in prison without the possibility of parole.

McFee appealed, arguing that testimony of L.E.’s mother, daughter, and cousin about McFee’s intention to kill L.E. were hearsay and were improperly admitted. McFee also argued that the handwritten note was testimonial hearsay that was improperly admitted. The district court determined that the statements of the mother, daughter, and cousin were admissible under CRE 807 (residual exception), and arguably under CRE 803(3) (state of mind exception). The court of appeals agreed with the district court that the statements were properly admitted under CRE 807. The court of appeals found that L.E.’s statements were trustworthy because they were made spontaneously to close family members, they were not self-serving, and L.E. had no motive to lie about McFee’s threats. Additionally, all of the witnesses testified that L.E. seemed afraid when describing the threats. Further, the statements tended to show that L.E.’s and McFee’s relationship was volatile and he had a motive to kill. The court found that the statements were properly admitted.

Next, McFee argued that L.E.’s note was testimonial hearsay and should have been excluded because it violated his Sixth Amendment Confrontation Clause rights. The court of appeals agreed, but found that any error in admitting the note was harmless beyond a reasonable doubt. The court of appeals found that the note was created out of court to substitute for testimony in the event of L.E.’s death and therefore was “testimonial.” And because L.E. was unavailable at trial and McFee had not had prior opportunity for cross-examination, admission of the note violated McFee’s Confrontation Clause rights. However, the court found that any error in admitting the note was harmless beyond a reasonable doubt. Several witnesses testified as to threats McFee had made to kill L.E., McFee’s DNA was on the murder weapon, he had a key to the facility where L.E. lived on his key ring at the time of his arrest, he failed to contact L.E.’s daughter after the murder despite his close relationship with her, and he may have said “I did it” on the audio recording. Given the plentiful evidence of McFee’s guilt, the court found that admission of the note was harmless beyond a reasonable doubt.

The court of appeals affirmed McFee’s conviction.

Tenth Circuit: Unpublished Opinions, 6/30/2016

On Thursday, June 30, 2016, the Tenth Circuit Court of Appeals issued no published opinion and six unpublished opinions.

United States v. Johnson

United States v. Miller

United States v. Mitchell

Bird v. Wyoming Department of Corrections State Penitentiary Warden

United States v. Rodriguez

United States v. Davalos-Ponce

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

Colorado Court of Appeals: Announcement Sheet, 6/30/2016

On Thursday, June 30, 2016, the Colorado Court of Appeals issued eight published opinions and 13 unpublished opinions.

People v. McFee

People v. Reyes

People v. Relaford

In the Matter of Donald C. Taylor and Margaret Ann Taylor Trust

People v. Alaniz

TABOR Foundation v. Regional Transportation Dist.

West Colorado Motors, LLC v. General Motors, LLC

Wibby v. Boulder County Board of County Commissioners

Summaries of these cases are forthcoming, courtesy of The Colorado Lawyer.

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, 6/29/2016

On Wednesday, June 29, 2016, the Tenth Circuit Court of Appeals issued no published opinion and four unpublished opinions.

United States v. Sing

United States v. Rocha-Rodriguez

United States v. Mitchell

United States v. Gastelum-Carrazco

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

Colorado Supreme Court: Possibility of Innocent Explanation is Merely a Factor in Totality of Probable Cause Determination

The Colorado Supreme Court issued its opinion in People v. Zuniga on Monday, June 27, 2016.

Probable Cause to Search—Totality of the Circumstances—Marijuana Odor.

In this interlocutory appeal, the Supreme Court reversed the trial court and held  that the odor of marijuana is relevant to the totality of the circumstances test and can contribute to a probable cause determination. Even though possession of one ounce or less of marijuana is allowed under Colorado law, many marijuana-related activities remain unlawful, meaning the odor of marijuana can support an inference that a crime is ongoing. Under the facts of this case, the Court concluded that there was probable cause to search the vehicle for illegal drugs in light of the two occupants’ divergent stories about their time visiting Colorado, their “extreme” nervousness, the strong odor of raw marijuana coming from the vehicle, and a drug-sniffing dog’s alert.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Workers’ Compensation Insurer Not Required to Provide Notice of Cancellation to Certificate Holder

The Colorado Supreme Court issued its opinion in Pinnacol Assurance v. Hoff on Monday, June 27, 2016.

Workers’ Compensation Insurance—Promissory Estoppel—Certificates of Insurance—Notice of Cancellation.

The Supreme Court considered whether an insurer had a contractual or statutory obligation to notify a non-insured holder of a certificate of insurance when the insurance policy evidenced by the certificate was cancelled. Because the certificate said notice of cancellation “will be delivered in accordance with the policy provisions” and the insurance policy did not promise notice to certificate holders, the Court concluded that the insurer had no contractual obligation to provide notice of cancellation to the certificate holder. The Court further concluded that no provision or public policy contained in the Workers’ Compensation Act required the insurer to provide such notice. Therefore, the Court reversed the judgment of the Court of Appeals.

Summary provided courtesy of The Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 6/28/2016

On Tuesday, June 28, 2016, the Tenth Circuit Court of Appeals issued one  published opinion and five unpublished opinions.

O’Connor v. Commissioner of Internal Revenue

United States v. Ceballos-Lepe

United States v. Moudy

Clark v. Fallin

United States v. Jack

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

Colorado Supreme Court: “Plausible on its Face” Standard Applies to Motions to Dismiss

The Colorado Supreme Court issued its opinion in Warne v. Hall on Monday, June 27, 2016.

Civil Procedure—Pleading.

Warne petitioned for review of the Colorado Court of Appeals’ judgment reversing the dismissal of Hall’s complaint, which asserted a claim of intentional interference with contract. Although invited to apply the standard for dismissal articulated in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), the district court dismissed for failure to state a claim upon which relief could be granted without addressing either Twombly or Iqbal in its written order. By contrast, the court of appeals expressly declined to apply the more recent U.S. Supreme Court jurisprudence governing F.R.C.P. 12(b)(6), finding itself instead bound by the Colorado Supreme Court’s existing precedent, which had heavily relied on the U.S. Supreme Court’s earlier opinion in Conley v. Gibson, 355 U.S. 41 (1957), and particularly its language to the effect that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove “no set of facts” in support of his claim. Declining, therefore, to be influenced by the U.S. Supreme Court’s more recent admonition to the federal courts that “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim for relief that is plausible on its face,’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570), the court of appeals found the complaint sufficient to state a claim.

The supreme court reversed the judgment of the court of appeals. Because the court’s case law interpreting the Colorado Rules of Civil Procedure in general, and C.R.C.P. 8 and 12(b)(5) in particular, reflected first and foremost a preference to maintain uniformity in the interpretation of the federal and state rules of civil procedure and a willingness to be guided by the U.S. Supreme Court’s interpretation of corresponding federal rules whenever possible, rather than an intent to adhere to a particular federal interpretation prevalent at some fixed point in the past, the Colorado Supreme Court found that its precedent was interpreted too narrowly by the court of appeals. Because it also found that plaintiff’s complaint, when evaluated in light of the more recent and nuanced analysis of Twombly and Iqbal, failed to state a plausible claim for relief, the court found the complaint insufficient under the Colorado Rules of Civil Procedure.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Economic Loss Rule Does Not Bar Tort Claims Arising Before Execution of Contract

The Colorado Supreme Court issued its opinion in Van Rees v. Unleaded Software, Inc. on Monday, June 27, 2016.

Economic Loss Doctrine—Conversion and Civil Theft—Public Impact or Interest—Private or Internal Transactions.

After Unleaded Software, Inc. failed to deliver contracted-for websites and services, Van Rees brought suit, alleging various tort theories, civil theft, three breach of contract claims, and a violation of the Colorado Consumer Protection Act (CCPA). The trial court dismissed all but the contract claims, and the court of appeals affirmed, holding that the economic loss rule barred the tort and civil theft claims and that Van Rees failed to allege a significant public impact under the CCPA.

The supreme court affirmed in part and reversed in part. The economic loss rule applies only if there is no independent tort duty. Here, where Van Rees alleged Unleaded induced him into entering a contractual relationship when it knew it would not be able to perform the promised services, there is an independent tort duty, and the court therefore reversed as to Van Rees’s tort claims. The court did not reach the question of the economic loss rule as it relates to civil theft and instead affirmed the dismissal of that claim because Van Rees failed to adequately allege the knowing deprivation of a thing of value. Finally, the court affirmed the dismissal of the CCPA claim for failure to allege a significant public impact.

Summary provided courtesy of The Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 6/27/2016

On Monday, June 27, 2016, the Tenth Circuit Court of Appeals issued no published opinion and four unpublished opinions.

United States v. Mercer

Pelletier v. United States

United States v. Marquez

United States v. Brown

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

Colorado Supreme Court: Announcement Sheet, 6/27/2016

On Monday, June 27, 2016, the Colorado Supreme Court issued four published opinions.

Warne v. Hall

Van Rees v. Unleaded Software, Inc.

People v. Zuniga

Pinnacol Assurance v. Hoff

Summaries of these cases are forthcoming, courtesy of The Colorado Lawyer.

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, 6/24/2016

On Friday, June 24, 2016, the Tenth Circuit Court of Appeals issued no published opinion and four unpublished opinions.

Solazzo v. Bynes

Estate of Vera Cummings v. United States

Methvin v. Commissioner of Internal Revenue

Jones v. State Farm Mutual Automobile Insurance Co.

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