July 31, 2014

Colorado Court of Appeals: Announcement Sheet, 7/24/2014

On Thursday, July 24, 2014, the Colorado Court of Appeals issued no published opinion and 39 unpublished opinions.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions. The case announcement sheet is available here.

Colorado Court of Appeals: Codefendant’s Guilty Plea Cannot Be Used as Evidence of Defendant’s Guilt

The Colorado Court of Appeals issued its opinion in People v. Rios on Thursday, July 17, 2014.

Second-Degree Murder—First-Degree Assault—Jury Instructions—Plea Agreement—Refusal to Testify—Use of Physical Force—Combat-by-Agreement—Self-Defense.

A fight between rival gangs resulted in the death of a 16-year-old (victim) after Lakiesha Vigil, a member of defendant’s gang, drove her car into a crowd of people who had moved their fight to a driveway. She hit the victim, pinning his upper torso against the wall. Vigil then drove the car out of the driveway. It was unclear whether defendant and/or defendant’s cousin, Anthony Quintana, hit the victim with a bat a few times before getting into Vigil’s vehicle. The victim died at the hospital several hours after the incident. Defendant was convicted of second-degree murder and first-degree assault.

On appeal, defendant argued that the trial court erred in failing to instruct the jury not to consider Quintana’s refusal to testify as evidence of his guilt, and erred in informing the jury about Quintana’s plea agreement. Quintana had entered into a plea agreement whereby he agreed to testify against defendant. However, when called to testify against defendant, Quintana refused to testify. The trial court thereafter erred by instructing the jury regarding Quintana’s guilty plea, because it may have given rise to an impermissible inference of defendant’s guilt, which was not cured by any limiting language. Further, this error was not harmless beyond a reasonable doubt. The Court of Appeals reversed defendant’s convictions, and the case was remanded for a new trial.

Defendant also argued that the trial court erred in instructing the jury on the use of physical force as a self-defense. The trial court erred in instructing the jury on the provocation exception to self-defense, because the evidence did not warrant giving these instructions. Accordingly, on retrial, if the same or similar evidence is presented, the trial court should not instruct the jury on the provocation exception to self defense.

Finally, the court’s combat-by-agreement instructions failed to instruct the jury that the prosecution had the burden of proving beyond a reasonable doubt mutual combat has been established. If this error arises on retrial, it also must be corrected.

Summary and full case available here.

Colorado Court of Appeals: Attorney Fee Award Erroneous when Underlying Claim Was to Recover Judgment

The Colorado Court of Appeals issued its opinion in Castro v. Lintz on Thursday, July 17, 2014.

Workers’ Compensation—Tort—Piercing the Corporate Veil—Enforcement of Judgment—Breach of Duty to Creditor—Dismissal—Attorney Fees—CRS § 13-17-201.

In 2010, Castro was employed by Lintz Construction, Inc. He was injured during the course of his employment when he fell from the roof of a building while shoveling snow. Castro filed a workers’ compensation claim against both Lintz Construction and Jonathan Lintz personally. The administrative law judge (ALJ) ordered Lintz Construction to pay Castro benefits in the amount of $4,536.76. The district court later granted Lintz’s motion to dismiss Castro’s claims to enforce the judgment against Lintz on the ground that the claims were barred by the doctrine of claim preclusion, awarding attorney fees to Lintz. The Colorado Court of Appeals reversed the district court’s order.

On appeal, Castro contended that the district court erred as a matter of law in awarding Lintz attorney fees under CRS § 13-17-201. An award of attorney fees under § 13-17-201 is mandatory when a trial court dismisses a tort action under CRCP 12(b). Castro’s claims for disregarding the corporate form (piercing the corporate veil) to recover the money he had already been awarded in the workers’ compensation claim and enforcement of his judgment against Lintz Construction do not sound in tort. Although Castro’s breach of duty to creditor was a tort, the essence of this claim did not sound in tort because Castro sought to recover only the benefits he was awarded. Therefore, the district court erred in awarding Lintz his attorney fees under CRS § 13-17-201.

Summary and full case available here.

Colorado Court of Appeals: Announcement Sheet, 7/17/2014

On Thursday, July 17, 2014, the Colorado Court of Appeals issued two published opinions and 40 unpublished opinions.

People v. Rios

Castro v. Lintz

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.

 

 

Colorado Court of Appeals: Strategic Choices by Defense Attorney Do Not Constitute Ineffective Assistance

The Colorado Court of Appeals issued its opinion in People v. Newmiller on Thursday, July 3, 2014.

Ineffective Assistance of Counsel.

Defendant, his brother, and their friends went to a strip club in Colorado Springs to celebrate defendant’s birthday. When the group was leaving the club, they had an altercation with another group (victim’s group) regarding a comment someone in the victim’s group had made to a dancer. The two groups confronted each other soon after, and the victim was stabbed in the heart. He later died from his injuries.

On appeal, defendant argued that his trial attorneys were ineffective. To establish prejudice, a defendant must show a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Here, counsel’s failure to request a lesser included offense instruction or consult with defendant on the matter did not constitute ineffective assistance, because it was an adequately informed strategic choice by defendant’s attorneys. Additionally, contrary to defendant’s assertions, counsel’s failure to request an instruction on the lesser non-included offense of accessory to crime did not constitute ineffective assistance, because there was no factual basis for this requested instruction; it could be considered a strategic choice by defendant’s attorneys. Further, the level of investigation by defendant’s counsel and the subsequent decision not to retain a medical expert clearly met the standard of reasonably competent assistance. Also, defendant has not shown that, in light of all the circumstances, counsel’s failure to call a crime scene reconstruction expert was “outside the wide range of professionally competent assistance.” Finally, one attorney discussed the case with defendant on multiple occasions and this attorney’s advice to defendant regarding his right to testify was within the range of competence demanded of attorneys in criminal cases. Therefore, defendant failed to prove that his attorneys were ineffective. The district court’s order denying defendant’s Crim.P. 35(c) motion for post-conviction relief was affirmed.

Summary and full case available here.

Colorado Court of Appeals: Supreme Court’s Mandate that Court of Appeals Apply Novotny Rule Could Not Be Disregarded

The Colorado Court of Appeals issued its opinion in People v. Wise on Thursday, July 3, 2014.

Challenge for Cause—Novotny—Due Process—Retroactive Application—Bias—Consecutive Sentences.

A division of the Court of Appeals previously determined that the district court had erroneously denied defendant’s challenge for cause to a prospective juror. The Colorado Supreme Court vacated the division’s decision, and remanded the case for reconsideration in light of People v. Novotny, No. 10SC377, 2014 CO 18.

On appeal, defendant contended that applying the holding of Novotny to this case would violate his right to due process because he did not have fair warning of Novotny’s change in the law. In Novotny, the court abrogated the automatic reversal rule on which the previous division had relied, holding that reversal is required for a district court’s deprivation of a defendant’s peremptory challenge only where the error was not “harmless under the proper outcome-determinative test.” Here, the Supreme Court mandated that the Court of Appeals apply that rule in this case. Further, because retroactive application to this case has no legaleffect on proceedings in the district court, including both the determination of guilt and punishment, defendant’s due process rights were not violated. Therefore, in applying Novotny to defendant’s case, and assuming that the district court erred in denying the challenge for cause to prospective juror K, the district court’s error resulting in defendant’s loss of a peremptory challenge was harmless, because defendant did not show that a biased or incompetent juror participated in deciding his guilt.

Defendant also contended that the district court abused its discretion in imposing consecutive sentences for his two felony convictions. Where, as here, a defendant’s multiple convictions are not based on identical evidence, the district court has discretion to impose either concurrent or consecutive sentences. The court’s remarks considered as a whole constitute a sufficient explanation of the basis for its decision to impose consecutive sentences. The judgment and sentence were affirmed.

Summary and full case available here.

Colorado Court of Appeals: Announcement Sheet, 7/10/2014

On Thursday, July 10, 2014, the Colorado Court of Appeals issued no published opinion and 28 unpublished opinions.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions. The case announcement sheet is available here.

Colorado Court of Appeals: Witness’s Factual Observation Admissible Despite Use of Word “Guilty” to Describe Defendant’s Appearance

The Colorado Court of Appeals issued its opinion in People v. Acosta on Thursday, July 3, 2014.

Discovery—Sanctions—Due Process—Relevant—Evidence—Ultimate Issue—Testimony—Summary Characterization—Hearsay—Bias.

Defendant attended a party in his apartment complex that was hosted by a couple he did not know. At least two children, including the 7-year-old victim, C.L., also were present. Defendant was asked to leave the party when someone observed him acting inappropriate with C.L. After speaking with C.L., the responding officer and a forensic interviewer determined that defendant had behaved inappropriately with her. Defendant subsequently was found guilty of sexual assault on a child.

On appeal, defendant asserted that the trial court erred by refusing to sanction the prosecution for withholding, until just before trial, the fourth interrogation of defendant, and for misrepresenting the content of the interrogation. However, defendant did not suffer any prejudice resulting from the late disclosure. Defendant received the evidence before the trial began, he was offered additional time to effectively review it but refused a continuance, and he was able to use the information during cross-examination of the detective. Additionally, the late disclosure was not willful. Hence, the trial court did not abuse its discretion in declining to sanction the prosecution for its late disclosure of evidence.

Defendant also asserted that the trial court erred by allowing J.H. to testify that defendant was “very guilty-looking” following the incident. A lay witness may testify about a summary conclusion based on the witness’s perception. Here, J.H. was physically present at the party where the assault occurred, and observed defendant immediately after the incident occurred with C.L. J.H. provided a summary characterization of her perception of how defendant looked and acted immediately following the incident. Therefore, the trial court did not abuse its discretion by allowing the challenged testimony.

Defendant further argued that the trial court erred by allowing C.L.’s father to testify that C.L. had attended a support group after the assault and had told him that thinking about the incident made her feel sick to her stomach. Because C.L.’s statements described her state of mind or physical condition resulting from the incident with defendant, the testimony did not violate the hearsay rules and was admissible.

Defendant additionally argued that admission of the father’s testimony violated the trial court’s orders and his right to an impartial judge when the court advised the prosecutor how the testimony might be admitted without providing discovery about the support group to defendant. The judge did not act as an advocate, and the testimony conformed with the court’s orders. Therefore, admission of this testimony was not error. The judgment was affirmed.

Summary and full case available here.

Colorado Court of Appeals: Defendant Knowingly, Intelligently, and Voluntarily Waived Right to Counsel Despite Lack of Arguello Advisement

The Colorado Court of Appeals issued its opinion in People v. Schupper on Thursday, July 3, 2014.

Indigent—Court-Appointed Counsel—Right to Counsel—Advisement—Recusal—Bias.

On September 7, 1995, defendant was charged with a single count of felony theft. After numerous hearings on defendant’s claim that he was indigent and had requested court-appointed counsel, defendant’s request ultimately was denied. He represented himself at trial and was found guilty of theft.

On appeal, defendant contended that the trial court erred when it determined he was not entitled to court-appointed counsel based on the collection investigator’s report. The Court of Appeals affirmed the trial court’s judgment.

First, defendant did not meet his burden to prove he was indigent. Second, the trial court’s finding that defendant “lived a luxury lifestyle” was supported by the evidence introduced at numerous hearings over a period of six months. Therefore, the trial court did not abuse its discretion in determining that defendant was not entitled to court-appointed counsel.

Defendant next contended that the court erred by failing to provide him an express advisement concerning his right to counsel before forcing him to proceed pro se at trial. The trial court never gave defendant an express advisement of his rights after it decided defendant was not entitled to court-appointed counsel. The record establishes that defendant knew of his right to counsel, his right to court-appointed counsel if he was indigent, and the importance of having counsel. Also, defendant is highly educated, and he understood the charges against him and the possible penalties from those charges. Defendant demonstrated that he understood his Fifth Amendment right to remain silent, as well as his right to subpoena and confront witnesses. Based on the totality of these circumstances, defendant knowingly, intelligently, and voluntarily waived his right to counsel.

Defendant further contended that Judge Schwartz erred in denying his repeated requests for recusal based on the court’s alleged bias. Rulings of a judge, including an indigency determination, are not sufficient in themselves to show bias or prejudice. Additionally, although Judge Schwartz may have been a material witness in the perjury cases against defendant, the case would not be heard in his court. Therefore, it was not err for the court to deny defendant’s request for recusal. The judgment was affirmed.

Summary and full case available here.

Colorado Court of Appeals: Absence of Defendant During Allen Instruction May Have Prejudiced Jury

The Colorado Court of Appeals issued its opinion in People v. Payne on Thursday, July 3, 2014.

Allen Instruction—Constitutional Right—Jury Deliberations—Evidence—Theft—Value.

V.V.’s home was burglarized while he and his family were away. A neighbor, who had observed part of the burglary, reported that she had noticed a car parked near V.V.’s house. Four days after the burglary, police officers pulled over defendant and noticed that the vehicle he was driving matched the description the neighbor had given to the police. Defendant was subsequently found guilty of second-degree burglary and theft.

On appeal, defendant contended that his right to be present at his trial was violated when the trial court delivered a “modified Allen instruction” to the jury in his absence during jury deliberations and against his counsel’s objection. Because of the psychological influence his absence or presence may have on the jury, a defendant has a constitutional right to be present when a modified Allen instruction is read to a deadlocked jury. Therefore, the Court determined that defendant’s constitutional right was denied. Because the People failed to carry their burden of proving beyond a reasonable doubt that there was no possibility that defendant was prejudiced by his absence when the court read the instruction, defendant’s convictions were reversed.

Defendant also contended that the evidence was insufficient to support his conviction of theft of property valued between $1,000 and $20,000. V.V.’s testimony that the digital camera and video camera were worth a total of $780 was sufficient evidence of value for those items. However, V.V.’s testimony that the television cost $1,400 could not support an inference that the purchase price of the television was comparable to its fair market value at the time the offense was committed. Accordingly, the evidence was insufficient to sustain a conviction of class 4 felony theft of property valued between $1,000 and $20,000. The judgment was reversed, defendant’s sentence was vacated, and the case was remanded with directions.

Summary and full case available here.

Colorado Court of Appeals: Appeal of Deported Immigrant Denied as Moot Because Probation Completed and Reentry Prohibited

The Colorado Court of Appeals issued its opinion in People v. Garcia on Thursday, July 3, 2014.

Probation Revocation—Mootness.

In 2010, Garcia pleaded guilty to criminal impersonation for providing a false name and false identification documents to police officers when they pulled him over for driving under the influence (DUI). He was sentenced to sixty months’ probation and one year in jail, on condition that he leave the United States and not reenter without inspection and a visa. Garcia’s remaining jail time was waived and he was released to the custody of Immigration and Customs Enforcement (ICE) for deportation.

One year later, Garcia returned to the United States. He was arrested for a traffic violation and charged with violating the conditions of his probation. The trial court revoked his probation after finding he had reentered the United States without a valid passport or visa. He was resentenced to one year in the custody of the Department of Corrections, with credit for 211 days served. After he completed his sentence, ICE deported him. In 2012, Garcia returned to the United States and ICE deported him again.

Garcia filed a notice of appeal of the revocation of his probation and the People filed a motion to dismiss, arguing the appeal was moot. The Court of Appeals granted the People’s motion.

The doctrine of mootness precludes the Court from reviewing a case in which its decision will have no practical effect on an actual or existing controversy. Here, the Court found that the appeal was moot because: (1) Garcia had already served his sentence; (2) he was not contesting his conviction, which could affect his admission to the United States; and (3) he is permanently barred from reentering the United States because criminal impersonation is a crime involving moral turpitude.

Garcia argued that the Court should reach the merits of the appeal even if it is otherwise moot, because it is capable of repetition without conducting a review, and this presents a matter of public importance involving recurring constitutional violations. The Court disagreed. First, there is no chance that Garcia’s probation will be revoked again because he has completed his sentence, has been deported, and is permanently barred from reentry. Second, this case does not involve a matter of public importance because the appeal only concerned the revocation of Garcia’s probation. Accordingly, the appeal was dismissed.

Summary and full case available here.

Colorado Court of Appeals: Defamatory Statements Cannot Be Proved to Assert Actual Facts Against Plaintiff

The Colorado Court of Appeals issued its opinion in Giduck v. Niblett on Thursday, July 3, 2014.

Defamation—Personal Jurisdiction—Failure to State a Claim.

Plaintiffs Giduck and his wife are Colorado residents. Giduck carried out various servicesthough a business called Archangel Group, Ltd.

Plaintiffs sued seven defendants for defamation (libel per se and libel per quod); trespass; assault; invasion of privacy; intentional interference with contract; tortuous interference with prospective business advantage; extreme and outrageous conduct; civil conspiracy; aiding and abetting tortuous conduct; preliminary and permanent injunction; and violation of the Colorado Organized Crime Control Act, based on various Internet postings by defendants. Plaintiffs claimed defendants “waged a public campaign of defamation all over” the Internet to discredit Giduck. Defendants filed separate but similar motions to dismiss, which the trial court granted.

On appeal, plaintiffs argued it was error: (1) to conclude defendants’ statements were constitutionally privileged; (2) to dismiss claims three through twelve as a sanction for improperly amending their complaint; and (3) to grant defendant Monger’s motion to dismiss for lack of personal jurisdiction. The Court of Appeals addressed the personal jurisdiction issue first, because all of defendants except Martin asserted they were not subject to the in personam jurisdiction of the Colorado District Court. The Court concluded that plaintiffs failed to establish the district court’s personal jurisdiction over the foreign defendants and therefore the dismissal as to those defendants was proper.

The Court found a failure by defendants to make a prima facie showing of specific personal jurisdiction over them. Accordingly, the dismissal of foreign defendants was affirmed.

The dismissal involving Martin was based on the district court’s conclusion that all the statements made by defendants were protected opinion. The Court affirmed this ruling. Plaintiffs alleged that Martin made two defamatory statements. The Court concluded that both statements could not be reasonably interpreted as stating actual facts about Giduck.

The Court affirmed the dismissal of claims three through twelve because plaintiffs failed to comply with its order for a more definite statement. It found nothing was added to the amended complaint that tied any defendant to any of the nine claims.

Because the district court properly dismissed the complaint against all defendants pursuant to CRCP 12(b)(2) or 12(b)(5), they were entitled to their reasonable attorney fees incurred on appeal. The judgment was affirmed and the matter was remanded for a determination of reasonable attorney fees.

Summary and full case available here.