April 18, 2015

Colorado Court of Appeals: Announcement Sheet, 4/16/2015

On Thursday, April 16, 2015, the Colorado Court of Appeals issued no published opinion and 18 unpublished opinions.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions.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: Open Meetings Law Prohibits Use of Secret Ballots

The Colorado Court of Appeals issued its opinion in Weisfield v. City of Arvada on Thursday, April 9, 2015.

Lack of Standing—Secret Ballots and Open Meetings Law.

This case concerned the use of secret ballots by Arvada’s mayor and city council members to fill a vacancy on the council for Arvada District 1. Plaintiff is a resident of that district. Defendants Mayor Williams and council members Dyer, Fifer, Allard, Marriot, and McGoff participated in the vote, and defendant Marks was selected to fill the vacancy.

After proper notice, a special meeting was held by city council on January 10, 2014 to select among five candidates for the vacancy. The meeting was recorded and televised. The council conducted four rounds of secret ballot voting in which candidates were eliminated if they didn’t receive a sufficient number of votes. Total votes were reported after each round, but it was not reported who voted for which candidates. At the end of the process, Marks was the only remaining candidate. The council then held an open vote in which they unanimously elected Marks.

Plaintiff sued, alleging that the use of secret ballots violated Colorado’s Open Meetings Law. Defendants moved to dismiss. The trial court granted the motion, holding that plaintiff lacked standing because he failed to allege an injury in fact to a legally protected interest.

The Court of Appeals reversed. The Open Meetings Law explicitly prohibits the use of secret ballots and provides that “any citizen of this state” may enforce the Open Meetings Law in Colorado courts. Plaintiff had a legally protected interest in having the city council fill its vacancy in an open manner in compliance with the Open Meetings Law. He also sufficiently alleged an injury in fact to this legally protected interest. He is a citizen of Colorado and a resident of Arvada District 1. As a direct result of the alleged violation, plaintiff did not know how each council member voted during the process of selecting the new council member who now represents him. The case was remanded for further proceedings, including the district court’s consideration of the alleged grounds for dismissal asserted in defendants’ motion to dismiss under CRCP 12(b)(5).

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

Colorado Court of Appeals: Trial Court Appropriately Declined Jurisdiction Under UCCJEA

The Colorado Court of Appeals issued its opinion in In re Parental Responsibilities Concerning B.C.B., a Child on Thursday, April 9, 2015.

Jurisdiction Under the Uniform Child-Custody Jurisdiction and Enforcement Act.

Mother and father, who were not married, are the parents of B.C.B., born in Idaho in December 2012. The couple moved to Colorado with B.C.B. in July 2013. In August 2013, mother and B.C.B. traveled to Massachusetts, where mother’s extended family lived. Mother testified at the hearing to determine Uniform Child-Custody Jurisdiction and Enforcement Act (UCCJEA) jurisdiction that she had intended to return to Colorado; however, while in Massachusetts, she decided her relationship with father would not work and therefore did not return.

In September 2013, father petitioned the Colorado district court for an allocation of parental responsibilities. Mother contested jurisdiction and filed a custody action in Massachusetts. The Massachusetts court entered temporary orders granting custody to mother in October 2013.

Following conferral between the Colorado and Massachusetts courts, the Colorado court asserted temporary emergency jurisdiction over B.C.B., ordered mother to return to Colorado with B.C.B., and set a hearing to determine jurisdiction. The Massachusetts court vacated its temporary order and stayed its proceedings pending the Colorado decision on jurisdiction.

The Colorado court determined that (1) Idaho was B.C.B.’s home state under the UCCJEA; (2) neither party wanted Idaho to take jurisdiction; and (3) either Colorado or Massachusetts could exercise jurisdiction, but neither was required to do so. The court then declined its jurisdiction on the basis that Colorado was not the most appropriate forum. Father appealed.

The Court of Appeals applied an abuse of discretion standard in reviewing the trial court’s decision to decline to exercise jurisdiction. The Court held that the child had no home state because neither the parents nor the child lived in Idaho when father filed his petition and the child had not lived in either Colorado or Massachusetts long enough to establish home state jurisdiction. Despite this error by the trial court, it properly proceeded under CRS § 14-13-201(1)(b) to consider whether B.C.B. and his parents had a significant connection with Colorado and whether substantial evidence concerning B.C.B. was located in Colorado. Because the court’s factual findings as to the lack of significant connection with Colorado or of substantial evidence in Colorado were supported by the record, the Court will not disturb them. The judgment was affirmed.

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

Colorado Court of Appeals: Trial Court Need Not Make Specific Findings to Revoke Probation

The Colorado Court of Appeals issued its opinion in People v. Roletto on Thursday, April 9, 2015.

Probation Revocation—Failure to Pay Restitution.

Defendant pleaded guilty to defrauding a secured creditor and to second-degree perjury. He was sentenced to a five-year probation period, with a condition that he pay restitution on a monthly basis.

About midway through his sentence, the probation department filed a probation revocation complaint, asserting defendant had failed to pay restitution. At the hearing, defendant argued that he was financially unable to pay restitution. He testified that he could not work because he suffered from chronic pancreatitis and his criminal record would deter him from obtaining work. The trial court found no evidence to support defendant’s assertions. It revoked his probation and resentenced him to another probationary term.

On appeal, defendant argued that the court applied an incorrect legal standard in determining whether he was able to pay restitution. Specifically, he argued that the court was required to find: (1) a job was available for him; (2) the job would produce an income adequate to meet his obligations; and (3) he justifiably refused to take the job.

The Court of Appeals concluded that these express findings were not necessary to revoke probation. A defendant has the burden of proving by a preponderance of the evidence that he or she is unable to pay restitution. The defendant’s burden is a question of fact to be determined by the trial court, and the court may consider numerous factors in making that determination. Here, the court’s finding that defendant was able to pay was based on copious evidence in the record.

Defendant also argued that the court improperly relied on information it read in the newspaper to find he was unable to pay. While making its finding and ruling, the court stated: “In the newspaper, this morning, I read that there were jobs available.” Defendant argued that this statement demonstrated the court improperly relied on “hearsay evidence” to find that he had violated the restitution condition. However, the record does not suggest the court used the information as evidence against defendant; rather, the statement was a casual observation. Moreover, the parties’ dispute did not center on whether jobs were generally available. Instead, defendant argued that his medical condition rendered him unable to work. As such, the availability of jobs was not dispositive. The judgment was affirmed.

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

Colorado Court of Appeals: Separate Challenge to Attorney Fee Award Not Prerequisite to Filing C.R.C.P. 60 Motion

The Colorado Court of Appeals issued its opinion in Oster v. Baack on Thursday, April 9, 2015.

Employment Agreement—Attorney Fees—First Impression—Challenge Under CRCP 60.

Doctors Oster and Baack owned and practiced medicine at Horizon Women’s Care. Oster and Horizon severed Baack’s employment following the loss of her medical license and brought a declaratory judgment action seeking a declaration that Baack’s employment had been terminated “for cause,” which meant that Baack would only be entitled to 25% of the value of her ownership interest in Horizon. The court entered judgment in favor of Oster and Horizon and ordered Baack to pay their attorney fees. This decision was reversed on appeal, and Baack thereafter filed a CRCP 60 motion to vacate the attorney fees award. The trial court denied the motion to vacate.

This case raised an issue of first impression—whether a party who has not directly appealed from an order awarding attorney fees and costs may still challenge that award under CRCP 60. The trial court had jurisdiction to consider Baack’s CRCP 60 motion, and Baack did not need to separately appeal the attorney fees award before filing her CRCP 60 motion. Because the appellate court reversed the underlying judgment, the trial court had awarded fees and costs under the prevailing party provision of the Employment Agreement, and the remaining agreements between the parties did not entitle Oster and Horizon to an attorney fees award. Accordingly, the attorney fees award in favor of Oster and Horizon was vacated and the case was remanded to the trial court to award Baack a reasonable amount of attorney fees and costs incurred on appeal.

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

Colorado Court of Appeals: Specific Statutory Medical Marijuana Registry Offenses Not Exclusive Means of Prosecution for Violations

The Colorado Court of Appeals issued its opinion in People v. Montante on Thursday, April 9, 2015.

Physician—Medical Marijuana—Attempt to Influence a Public Servant—Lesser Non-Included Offense—Jury Instructions—Unconstitutionally Vague—First Amendment—Motion to Suppress—Expert Witness.

Defendant worked as a contract physician at a medical marijuana clinic. Defendant issued “Nick Moser,” an undercover police detective, a Physician Certification stating that Moser suffered from a debilitating medical condition and might benefit from the medical use of marijuana despite the fact that Moser did not suffer from any medical conditions. Defendant was charged and convicted of attempt to influence a public servant.

On appeal, defendant argued that the trial court erred in denying his pretrial motion to dismiss the charge because the legislature proscribed and directed punishment for his conduct in the specific medical marijuana registry fraud statute. Although the statute could apply to a physician’s recommending medical marijuana in a Physician Certification, it does not preclude prosecution for defendant’s conduct under the attempt to influence a public servant statute.

Defendant argued that the trial court erred in denying his request for a lesser non-included offense jury instruction on medical marijuana registry fraud under CRS § 18-18-406.3(2)(a). There was no evidentiary basis on which the jury rationally could have convicted defendant of medical marijuana registry fraud but acquitted him of attempt to influence a public servant. Consequently, the jury could not rationally have convicted defendant of the lesser offense and acquitted him of the greater. Accordingly, the trial court did not err in rejecting defendant’s tendered instruction.

Defendant argued that the attempt to influence a public servant statute is unconstitutional because it is vague as applied to him and violates his free speech rights under the First Amendment. The statute was sufficiently clear that it prohibited defendant’s alleged conduct. Furthermore, false representations such as those made by defendant are not protected by the First Amendment.

Defendant argued that the trial court erred in denying his motion to suppress because the trial court incorrectly concluded that he was not in custody at the time the statements were made. The interview took place at defendant’s clinic, he was not coerced, and the statements were made voluntarily. Therefore, defendant was not in custody when the interview took place and Miranda warnings were not required.

Defendant argued that the trial court erred in admitting the prosecution’s expert testimony on general medical assessments, examinations of patients, and establishing a bona fide physician-patient relationship. The physician was qualified as an expert, and his testimony could have assisted the jury in determining whether defendant’s representations were false. Therefore, the trial court did not abuse its discretion in determining that the testimony met the requirements of CRE 702 and was not excludable under CRE 403. The judgment was affirmed.

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

Colorado Court of Appeals: Cost of Installing Bars on Victim’s Window Improperly Assigned as Restitution

The Colorado Court of Appeals issued its opinion in People v. Martinez on Thursday, April 9, 2015.

Identification—Physician–Patient Privilege—Restitution.

The victim awoke one morning to a noise outside her second-floor bedroom. She walked to the bathroom and saw a man standing on her roof, trying to enter the bathroom window. Seeing the victim, the man ran away. Defendant was found by police hiding in a row of bushes near the victim’s house, and the victim positively identified defendant at the scene as the person who attempted to enter her residence. Defendant was convicted of attempted first-degree criminal trespass, third-degree criminal trespass, and criminal mischief

On appeal, defendant claimed that the district court erred when it admitted evidence that the victim previously identified him as the man she saw in her window and allowed her to identify him again at trial. “One-on-one show-ups” are disfavored because they tend to be suggestive, but they are not per se invalid. Here, the victim had a good opportunity to view defendant trying to enter her residence, she described defendant to the police when they arrived at the scene, she immediately identified defendant when the police presented him to the victim at the scene, and the police did not make any suggestive comments during the procedure. Therefore, the district court did not err in denying defendant’s motion to suppress the identification evidence.

Defendant argued that the district court erred when it allowed Dr. Stafford, the physician who treated defendant at the hospital that evening for a fractured right heel, to testify because defendant had not waived the physician-patient privilege. A physician who treats an injury that he has reason to believe involves a criminal act has a duty to report the injury to the police, which abrogates the privilege as to the medical examination and diagnosis, but not as to any statements made by the patient. Dr. Stafford had reason to believe defendant’s injury involved a criminal act. In addition, his testimony was limited to his examination and diagnosis and he did not disclose any statements defendant made in the course of his treatment. Therefore, Dr. Stafford’s testimony fell within the exception created by the reporting statute.

Defendant further argued that the district court erred when it ordered restitution of $489 for the cost of installing bars on the victim’s bathroom window because there was no showing that his conduct proximately caused the expense. Expenses resulting from a general feeling of insecurity are too attenuated to qualify as restitution. Here, the court failed to find that the expense of installing bars was the result of a specific, ongoing threat related to defendant’s conduct as opposed to a general feeling of insecurity. Therefore, this part of the restitution order was vacated.

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

Colorado Court of Appeals: Admission of Voice Exemplar Did Not Violate Right Against Self-Incrimination

The Colorado Court of Appeals issued its opinion in People v. Ortega on Thursday, April 9, 2015.

Voice Identification—Self-Incrimination—Physical Evidence—Due Process—CRE 403—Prosecutorial Misconduct.

While at a public park, an undercover police officer who was wearing a wire bought marijuana from a man who was later identified as Ortega. At trial, the prosecutor moved to have Ortega read a statement to allow the jury the opportunity to match his voice with the person speaking on the recording of the drug deal.

On appeal, Ortega argued that the voice identification procedure violated his right against self-incrimination, the right to due process, and CRE 403. The voice exemplar provided by defendant was physical evidence and not testimonial. Therefore, the procedure did not violate Ortega’s right against self-incrimination. Additionally, although the jurors had not seen or heard Ortega before trial, they listened to the officer’s and detective’s testimony describing their out-of-court identifications of Ortega. This testimony gave them “an independent basis” for identifying Ortega as the seller. Therefore, the totality of the circumstances indicates that the identification procedure did not violate Ortega’s right to due process. Finally, the trial court’s determination that the voice exemplar posed a minimal risk of unfair prejudice was not “manifestly arbitrary, unreasonable, or unfair.”

Ortega also argued that the prosecutor’s comments during closing argument appealed to the jurors’ fears and concerns for public safety, thus denying him a fair trial. The prosecutor’s comments were an improper attempt to persuade the jurors to convict defendant “in order to combat evil for the community.” However, because the comment was an isolated incident in an otherwise proper closing argument, the error was harmless.

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

Colorado Court of Appeals: Abbreviated Miranda Warning Does Not Adequately Advise Suspect of Rights

The Colorado Court of Appeals issued its opinion in People v. Carter on Thursday, April 9, 2015.

Miranda Warning—Police Interview—Jury Access to Video Interview.

Ray and Owens were attendees at a barbecue and rap festival. When a fight broke out in the parking lot, Owens shot and killed an individual who attempted to break up the fight, and Ray shot and injured Marshall-Fields and another person. After the shooting, Ray and Owens fled in Ray’s car. Ray and Owens were charged in connection with the homicide.

About one year after the shooting, Owens instructed Carter to approach Marshall-Fields, who was at a sports bar, and discourage him from testifying—either by offering him money or threatening him. Carter entered the bar and spoke to Marshall-Fields. The following night, Marshall-Fields and his fiancée were shot and killed in their car by the occupants of a passing vehicle. A jury convicted Carter of conspiracy to commit first-degree murder, intimidating a witness, and unlawful distribution of a controlled substance.

On appeal, Carter contended that the district court erred in admitting evidence of his videotaped interrogation because the police failed to adequately advise him of his Miranda right to have a lawyer present. A warning that provides that a custodial suspect has “the right to have an attorney,” without more, does not adequately inform a suspect of his or her right to the presence of an attorney before and during the interrogation. However, because Carter never confessed and did not otherwise incriminate himself during the interview, the admission of his videotaped interview was ultimately harmless beyond a reasonable doubt and did not affect the outcome of the trial. Therefore, the court’s error did not warrant reversal.

Carter also contended that the district court erred in allowing the jury to have unfettered access to the video-recording of his interrogation. A district court may allow “unrestricted jury access during deliberations to a defendant’s voluntary and otherwise admissible confession.” Although the lack of Miranda warning prohibited admission of this evidence, any error was harmless. The judgment was affirmed.

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

Colorado Court of Appeals: Announcement Sheet, 4/9/2015

On Thursday, April 9, 2015, the Colorado Court of Appeals issued eight published opinions and 25 unpublished opinions.

People v. Carter

People v. Martinez

People v. Ortega

Oster v. Baack

People v. Montante

People v. Roletto

In re Parental Responsibilities Concerning B.C.B.

Weisfield v. City of Arvada

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.

Hon. James Casebolt to Retire from Colorado Court of Appeals

On Thursday, April 3, 2015, the Colorado State Judicial Branch announced the retirement of Hon. James Casebolt of the Colorado Court of Appeals, effective July 1, 2015.

Judge Casebolt was appointed to the Colorado Court of Appeals in 1994, and has served as Deputy Chief Judge since 2005. He also serves on the Judicial Advisory Panel and the Colorado Supreme Court Committee on Civil Pattern Jury Instructions. Prior to his appointment, Judge Casebolt was a shareholder and partner at Younge & Hockensmith P.C. in Grand Junction, where he practiced civil litigation. Judge Casebolt received his B.A., magna cum laude, from Colorado College, and his law degree from the University of Colorado, where he received American Jurisprudence awards for excellence in corporations, creditor’s remedies, and estate planning.

Applications are now being accepted for the forthcoming vacancy on the Colorado Court of Appeals. Eligible applicants must be qualified electors of the State of Colorado and must have been admitted to practice law in Colorado for five years. Applications are available from the State Judicial website, and also from the ex officio chair of the Supreme Court Nominating Commission, Chief Justice Nancy Rice. Applications must be received no later than 4 p.m. on Monday, April 27, 2015, and anyone wishing to nominate another must do so no later than 4 p.m. on Monday, April 20, 2015.

For more information on the forthcoming vacancy and for contact information for members of the Supreme Court Nominating Commission, click here.

Colorado Court of Appeals: Announcement Sheet, 4/2/2015

On Thursday, April 2, 2015, the Colorado Court of Appeals issued no published opinion and 36 unpublished opinions.

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