November 18, 2017

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 Supreme Court: In Identity Theft Case, People Must Show Knowledge of Theft

The Colorado Supreme Court issued its opinion in People v. Molina on Monday, February 6, 2017.

Criminal Law—Identity Theft.

This case came to the Colorado Supreme Court on certiorari review of the court of appeals’ unpublished opinion, People v. Molina, No. 11CA1650 (Colo. App. June 19, 2014). A jury convicted Daniela Molina of two counts of identity theft and three counts of forgery. The court granted certiorari to resolve three issues: (1) whether the People must show that Molina knew she stole another person’s information; (2) whether there was sufficient evidence that Molina knew she stole a real person’s information; and (3) whether an apartment lease and employment qualify under the identity theft statute as “thing[s] of value.” The court answered all three questions in the affirmative. Therefore, the court affirmed in part and reversed in part the court of appeals’ judgment and remanded the case for proceedings consistent with this opinion.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: No Error in ALJ’s Finding of Claimant’s Attempt to Circumvent Burden of Proof

The Colorado Court of Appeals issued its opinion in Feliciano v. Industrial Claim Appeals Office on Thursday, May 19, 2016.

Workers’ Compensation—Reopening Claim—DIME—Maximum Medical Improvement.

Claimant sustained an injury, underwent treatment, and was placed at maximum medical improvement (MMI) by her authorized treating provider (ATP). Claimant requested a division-sponsored independent medical examination (DIME) to challenge the ATP’s MMI finding. The DIME physician agreed with the ATP’s MMI date and recommendation for treatment, and he rated claimant’s impairment. Claimant’s employer and its insurer filed a final admission of liability (FAL) based on the DIME.

Claimant did not object to the FAL but instead petitioned to reopen her claim less than two weeks after the FAL was filed and while her claim was still open. The administrative law judge (ALJ) denied and dismissed her petition, noting that the proper procedure would have been to challenge the DIME. The Industrial Claim Appeals Office affirmed and claimant appealed.

On appeal, claimant argued that the ALJ improperly disregarded her counsel’s arguments that she was not challenging the MMI finding and that the ALJ’s findings were not supported by substantial evidence. To reopen a claim, a claimant must show error, mistake, or change in condition. The reopening of a claim is within the sound discretion of the ALJ and may only be reversed for fraud or clear abuse of discretion. The ALJ found that claimant was filing to reopen a claim that wasn’t closed to avoid the higher burden of proof required to overcome a DIME. Claimant’s counsel admitted at oral argument that the petition to reopen was a “strategic” move taken because counsel did not believe claimant could overcome the DIME. The record supports the ALJ’s determination that claimant improperly used the reopening process to challenge the DIME.

The order was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Workers’ Compensation “Firefighter’s Statute” Shifts Burden of Causation to Employer

The Colorado Supreme Court issued its opinion in City of Littleton v. Industrial Claim Appeals Office on Monday, May 2, 2016.

Workers’ Compensation—Firefighters—Statutory Presumptions.

In this case, the Colorado Supreme Court addressed the presumption created in the “firefighter statute,” C.R.S. § 8-41-209, of the Workers’ Compensation Act of Colorado, C.R.S. §§ 8-40-101 to 8-47-209. The court held that the presumption in C.R.S. § 8-41-209(2)(a) relieves the claimant firefighter of the burden to prove that his cancer “result[ed] from his or her employment as a firefighter” for purposes of establishing under C.R.S. § 8-41-209(1) that his condition is a compensable “occupational disease” under the Workers’ Compensation Act. However, C.R.S. § 8-41-209(2) does not establish a conclusive, or irrebuttable, presumption. Instead, the firefighter statute shifts the burden of persuasion to the firefighter’s employer to show, by a preponderance of the medical evidence, that the firefighter’s condition “did not occur on the job.”

The court held that an employer can meet its burden by establishing the absence of either general or specific causation. Specifically, an employer can show, by a preponderance of the medical evidence, either: (1) that a firefighter’s known or typical occupational exposures are not capable of causing the cause of the claimant’s condition or type of cancer at issue; or (2) that the firefighter’s employment did not cause the firefighter’s particular cancer where, for example, the claimant firefighter was not exposed to the substance or substances that are known to cause the firefighter’s condition or impairment, or where the medical evidence renders it more probable that the cause of the claimant’s condition or impairment was not job-related.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Statutory Presumption of Occupational Disease for Firefighters Not Irrebuttable

The Colorado Supreme Court issued its opinion in Industrial Claim Appeals Office v. Town of Castle Rock on Monday, May 2, 2016.

Workers’ Compensation—Firefighters—Statutory Presumptions.

In a companion case, City of Littleton v. Industrial Claim Appeals Office, 2016 CO 25, the Colorado Supreme Court held that the presumption created by the firefighter statute, C.R.S. § 8-41-209, relieves the claimant firefighter of the burden to prove that his cancer “result[ed] from his or her employment as a firefighter” for purposes of establishing under C.R.S. § 8-41-209(1) that his condition is a compensable “occupational disease” under the Workers’ Compensation Act. However, C.R.S. § 8-41-209(2) does not establish a conclusive, or irrebuttable, presumption. Instead, the firefighter statute shifts the burden of persuasion to the firefighter’s employer to show, by a preponderance of the medical evidence, that the firefighter’s condition “did not occur on the job.”

Here, the court held that an employer can seek to meet its burden to show a firefighter’s cancer “did not occur on the job” by presenting particularized risk-factor evidence indicating that it is more probable that the claimant firefighter’s cancer arose from some source other than the firefighter’s employment. To meet its burden of proof, the employer is not required to prove a specific alternate cause of the firefighter’s cancer. Rather, the employer need only establish, by a preponderance of the medical evidence, that the firefighter’s employment did not cause the firefighter’s cancer because the firefighter’s particular risk factors render it more probable that the firefighter’s cancer arose from a source outside the workplace.

Summary provided courtesy of The Colorado Lawyer.

Tenth Circuit: Mandatory Victim Restitution Act Requires Verified Proof of Actual Losses

The Tenth Circuit Court of Appeals issued its opinion in United States v. Ferdman on Friday, February 13, 2015.

Joshua Ferdman and three co-conspirators concocted a plan in which they obtained account information for several corporate customers of Sprint. Defendant impersonated account representatives and purchased cell phones from various Sprint stores, charging them to the corporate accounts. After he was caught, he pled guilty to a two-count indictment. He was sentenced to 15 months in prison and ordered to pay $48,715.59 in restitution pursuant to the Mandatory Victims Restitution Act (MVRA). The court calculated the restitution amount based on what Sprint referred to as the “retail unsubsidized price” of 86 stolen phones, plus Sprint’s shipping and investigative costs. Defendant appeals the restitution order, arguing the government’s proof of loss was insufficient to support the award.

The Tenth Circuit first analyzed the MVRA in detail in light of last term’s Supreme Court decision in Paroline. The Tenth Circuit emphasized that restitution is intended to make victims whole, not unjustly enrich them or provide them a windfall. The Tenth Circuit determined the MVRA is intended to compensate for actual losses, not merely speculated losses, but does not preclude a district court’s exercise of discretion in determining actual loss. The government bears the burden of proof to demonstrate the actual amount of loss.

In this case, Sprint’s regional manager of investigations submitted an unverified letter setting forth Sprint’s losses, basing its calculations on the “retail unsubsidized price” of each fraudulently obtained phone, $449 to $549 per phone. The letter also listed estimated shipping costs, travel expenses, investigatory expenses, and GPS activation expenses, listing Sprint’s estimated total loss as $48, 715.59.

Defendant argued the better measure of actual loss was the price he paid per phone, or $149 to $199 per phone, and repeatedly questioned the government’s evidence of actual losses. Defendant pointed out that the government did not present any evidence his crimes caused Sprint to lose retail sales or attendant profits. The district court denied an evidentiary hearing on the restitution amount, and found the MVRA’s “value of the property” language broad enough to cover lost profits.

The Tenth Circuit found that the government’s complete lack of verified evidence precluded a restitution award. Because the MVRA requires proof of actual losses, the Tenth Circuit vacated the district court’s restitution award and remanded for further proceedings.

Colorado Supreme Court: Burden of Proof Does Not Shift Under Res Ipsa Loquitur

The Colorado Supreme Court issued its opinion in Chapman, M.D. v. Harner on Monday, December 8, 2014.

Allocation of the Burden of Proof Under Res Ipsa Loquitur.

In this case, the Supreme Court clarified the proper allocation of the burden of proof under the doctrine of res ipsa loquitur. Specifically, the Court resolved the tension between its fifty-six-year-old precedent in Weiss v. Axler, 137 Colo. 544, 559, 328 P.2d 88, 96-97 (1958), which held that the burden of proof shifts to the defendant once a plaintiff makes a prima facie showing of res ipsa loquitur, and the more recent adoption of CRE 301, which indicates that rebuttable presumptions such as res ipsa loquitur shift onto the defendant only the burden of production and not the burden of proof. After determining that this issue has remained unsettled since the adoption of CRE 301, the Court held that the burden of proof does not shift to the defendant under res ipsa loquitur. Accordingly, the Court reversed the court of appeals’ judgment.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Supreme Court: Party Seeking to Modify Admission of Liability Has Burden of Proof that Modification Should Be Made

The Colorado Supreme Court issued its opinion in City of Brighton v. Rodriguez on Monday, February 3, 2014.

Workers’ Compensation—Liability—CRS § 8-41-301(1)(c)—Settlement and Hearing Procedures—CRS § 8-43-201(1).

In this workers’ compensation case, the Supreme Court held that an “unexplained fall” satisfies the “arising out of” employment requirement in CRS § 8-41-301(1)(c), if the fall would not have occurred but for the fact that the conditions and obligations of employment placed the employee in the position where he or she was injured. Additionally, the Court held that when a party seeks to modify an issue determined by a general or final admission, a summary order, or a full order, per CRS § 8-43-201(1), that party has the burden of proving by a preponderance of the evidence that a modification is warranted. Accordingly, the Court affirmed the court of appeals’ holding, but for different reasons.

Summary and full case available here.

Colorado Supreme Court: Defendant Bears Burden of Proving that Search and Seizure Violated Fourth Amendment Rights

The Colorado Supreme Court issued its opinion in People v. Cunningham on Monday, December 23, 2013.

Criminal Procedure—Crim. P. 41(e)—Suppression Hearing—Defendant’s Burden of Going Forward With Evidence—Searches and Seizure Under Warrant.

The Supreme Court held that the trial court erred in suppressing evidence when it ruled that the prosecution must go forward with evidence showing that the warrant in this case was facially valid and legally executed. Whether a search or seizure is performed pursuant to a warrant or is warrantless, the defendant under Crim.P. 41(e) bears the burden of going forward to show that the search or seizure violated his or her Fourth Amendment rights. The suppression order was reversed and the case was remanded to the trial court.

Summary and full case available here.

Colorado Court of Appeals: “Proximate Cause” As to Vehicular Assault Correctly Defined in Jury Instruction

The Colorado Court of Appeals issued its opinion in People v. Smoots on Thursday, November 21, 2013.

Vehicular Assault—Driving Under the Influence (DUI)—Jury Instructions—Proximate Cause—Lesser Included Offense.

Defendant appealed the judgment of conviction entered on three jury verdicts finding him guilty of vehicular assault–DUI, DUI, and DUI per se. The convictions for vehicular assault and DUI per se were affirmed, and the DUI conviction was vacated.

According to the People’s evidence, defendant was driving a vehicle east on a two-lane highway while the victim was driving westbound. Defendant swerved into the victim’s lane, striking the victim’s vehicle. The victim suffered serious injuries.

Defendant argued that the jury instructions inaccurately defined proximate cause and thus lowered the prosecution’s burden of proof. The prosecution’s burden in proving vehicular assault–DUI is to establish that the defendant operated or drove a motor vehicle while under the influence of alcohol, and this conduct was the proximate cause of a serious bodily injury to another. Because vehicular assault is a strict liability crime, the prosecution’s burden is to prove only that the defendant voluntarily drove while intoxicated and that his or her driving resulted in the victim’s serious bodily injury. Here, defendant conceded at trial that he was intoxicated at the time of the accident, that he was driving one of the vehicles involved in the collision, and that the victim was injured in the accident. Therefore, taking these admissions into account, the trial court did not err in instructing the jury that “[f]or the purposes of the strict liability crime of Vehicular Assault, ‘proximate cause’ is established by the voluntary act of driving under the influence of alcohol.”

The trial court also did not err in ruling that defendant was not entitled to an intervening cause instruction based on the fact that the victim may have swerved into defendant’s lane first. Even if true, this conduct would not be considered gross negligence, which is needed for an intervening cause instruction.

The judgment was vacated as to defendant’s conviction for DUI. Defendant’s DUI conviction constituted a lesser included offense of his vehicular assault–DUI conviction.

Summary and full case available here.

Colorado Court of Appeals: ALJ Misinterpreted Burden of Proof and Should Have Evaluated Risk Factors Introduced by Defense

The Colorado Court of Appeals issued its opinion in Town of Castle Rock v. Industrial Claim Appeals Office on Wednesday, July 3, 2013.

Workers’ Compensation—Presumption of Compensability in CRS § 8-41-209.

The Town of Castle Rock and its insurer (collectively, Town) appealed the judgment of the Industrial Claim Appeals Office (Panel) affirming the ruling of an administrative law judge (ALJ). The order was set aside and the case was remanded with directions.

Claimant had worked as a firefighter, engineer, and paramedic for the Town of Castle Rock since November 2000. He grew up in Albuquerque, New Mexico, and served as a firefighter there before moving to Colorado. During his off hours, claimant worked in construction—and sometimes outdoors—framing and building decks.

In 2011, claimant was diagnosed with malignant melanoma on his right outer calf. He underwent three surgeries to remove the growth and subsequently was released to work full duty. He appears to be cancer free.

Claimant sought both medical benefits and temporary total disability (TTD) benefits under CRS § 8-41-209. The parties stipulated that CRS § 8-41-209’s presumption of compensability applied. The only issue at the hearing was whether the Town had overcome the presumption.

The ALJ ruled that to overcome the presumption, a specific non-work-related cause of the cancer had to be established. The Town’s expert opined that claimant’s various other exposures and risk factors placed him at far greater risk of developing melanoma than his activities as a firefighter. The ALJ ruled that the opinion testimony was insufficient to overcome the presumption. The ALJ noted the statute required showing “by a preponderance of the medical evidence that such condition or impairment did not occur on the job.” The ALJ interpreted this to mean an employer must show that “a claimant’s cancer comes from a specific cause not occurring on the job.” The introduction of other risk factors was not enough. The Panel affirmed the ALJ’s ruling.

The Town and its insurer, CIRSA, argued that the ALJ misinterpreted the statute. Collectively, they asserted that the ALJ should have considered the evidence of risk factors it introduced to determine whether the presumption was overcome. The Court of Appeals agreed.

The statute provides that an otherwise compensable cancer “[s]hall not be deemed to result from the firefighter’s employment if the firefighter’s employer or insurer shows by a preponderance of the medical evidence that such condition or impairment did not occur on the job.” The Court held that evidence of risk factors can be sufficient to overcome the presumption under this language and that it was error to require the Town to prove that the cause of claimant’s cancer arose outside work. The standard applied by the ALJ is nearly insurmountable because the cause of most cancers cannot be determined. Such a standard would amount to a strict liability statute mandating that every firefighter who develops one of the prescribed cancers is entitled to workers’ compensation coverage.

The Court held that an employer may overcome the statutory presumption of compensability with specific risk evidence demonstrating that a particular firefighter’s cancer probably was caused by a source outside work. The case was remanded to the Panel to remand to the ALJ to review the evidence under the standard articulated by the Court.

Summary and full case available here.

Colorado Court of Appeals: In Workers’ Compensation Proceeding, 18-Month DIME Physician’s Findings Carry No Presumptive Weight Regarding Impairment Ratings

The Colorado Court of Appeals issued its opinion in Meza v. Industrial Claim Appeals Office on Thursday, May 9, 2013.

Workers’ Compensation—Jurisdiction—Weight of Evidence—Substantial Evidence—CRS § 8-42-107(8)(b)(II).

In this workers’ compensation action, claimant sought review of a final order of the Industrial Claim Appeals Office (Panel). The order was affirmed.

Claimant sustained an admitted, compensable injury in 2004 when a cow bone fell on his right foot. On November 26, 2004 his authorized treating physician (ATP) placed him at maximum medical improvement (MMI) with no impairment and released him to work, with no restrictions. Plaintiff continued to experience pain and developed low back pain four years after his initial injury.

His employer, Swift Foods Company, and its insurer, Zurich American Insurance Company (collectively, employer), agreed to reopen the claim in 2008. A new ATP suspected claimant had developed complex regional pain syndrome (CRPS) and that his low back pain was related to the foot injury. Employer retained a physician to conduct an independent medical examination (IME). The physician found that claimant had reached MMI, and that the low back pain was unrelated to the 2004 injury.

Because the ATP had not placed claimant at MMI within eighteen months of commencing treatment, employer requested a division-sponsored independent medical examination (DIME). The DIME physician examined claimant in January 2010 and placed him at MMI as of the date of the exam. The DIME physician rated claimant’s impairment at 10% of the whole person for CRPS and 11% for his spine, giving him a 20% impairment rating of the whole person.

Employer filed a final admission of liability (FAL) based on the DIME physician’s MMI and impairment ratings. Claimant moved to strike the FAL, arguing that a physician performing an eighteen-month DIME is limited to determining MMI and may not give an impairment rating. An administrative law judge (ALJ) agreed with claimant, struck the FAL, and ordered claimant to see his ATP for a permanent impairment evaluation. The ATP rated claimant at 18% for his spinal injuries, 10% for CRPS, and 4% for the lower extremity, resulting in a total impairment rating of 27% of the whole person.

Employer requested a second DIME to review the ATP’s impairment rating. The second DIME agreed that claimant had reached MMI in January 2010, but rated his impairment at 18% of the whole person. In her deposition, however, she corrected herself and rated him at 4% of the whole person.

At the hearing, claimant objected to the second DIME physician’s opinions. The ALJ found that when claimant moved to strike the FAL he waived his opportunity to rely on any presumptive weight that might otherwise have been given to the eighteen-month DIME’s impairment rating. The ALJ awarded claimant PPD benefits based on an impairment rating of 10% of the lower extremity, but found claimant’s spine injury and CRPS unrelated and therefore awarded no benefits for those conditions. The Panel affirmed.

On appeal, claimant argued he was entitled to a higher impairment rating because (1) the ALJ was bound by the eighteen-month DIME physician’s opinions and therefore lacked jurisdiction to rule on the relatedness of his alleged CRPS and low back conditions; and (2) the ALJ improperly assigned him the burden of overcoming the second DIME’s opinion. The Court of Appeals disagreed.

Claimant argued the determination of the eighteen-month DIME physician’s opinion was binding on the ALJ because neither party had requested a hearing to challenge his opinions. In general, a DIME physician’s opinions concerning MMI and permanent medical impairment are given presumptive effect. However, the Panel has found this general rule does not govern as to impairment when an eighteen-month DIME determination is requested under CRS § 8-42-107(8)(b)(II), because it does not mention or address impairment. The Court found that this a reasonable interpretation of the statutory language and an eighteen-month DIME report under this section only carries presumptive weight concerning MMI.

Consequently, the causation findings associated with the impairment ratings carried no presumptive effect and were not jurisdictionally binding on the ALJ. The impairment rating was advisory only and did not statutorily close the issue of causation of impairment.

Claimant also argued that the ALJ “did not enforce the presumption of validity” associated with the eighteen-month DIME physician’s causation determinations. The Court found this argument premised on the incorrect notion that the eighteen-month DIME physician’s causation opinions were related only to MMI. To the extent they were related to impairment ratings, they were not subject to presumptive weight. It was for the ALJ to determine whether the impairment opinions expressed by the second DIME physician, including the causes of impairment, had been overcome by clear and convincing evidence. The ALJ’s findings in this regard will not be set aside if supported by substantial evidence in the record. The Court found such evidence in the record. The order was affirmed.

Summary and full case available here.