June 28, 2016

Colorado Court of Appeals: Defendant Entitled to At Least a Hearing on Ineffective Assistance Claims

The Colorado Court of Appeals issued its opinion in People v. Hunt on Thursday, June 16, 2016.

Postconviction Relief—Ineffective Assistance of Counsel—Transferred Intent—Complicity.

Defendant was charged with first degree “after deliberation” murder, first degree “extreme indifference” murder, conspiracy to commit murder, possession of a weapon by a previous offender, and three crimes of violence (sentencing enhancement) counts. Under a plea agreement, defendant pleaded guilty to an added count of second degree murder and to one of the original crime of violence counts in exchange for (1) the dismissal of the remaining charges and (2) a stipulated sentence of between 30 and 40 years’ imprisonment.

Defendant later wrote two letters to the district court asking to withdraw his guilty plea. He asserted that he was not guilty of murder because he had not intended for the shooter to kill the victim and his attorney had erroneously advised him that he could, if tried, be found guilty and sentenced to life imprisonment under a complicity theory. Plea counsel then filed a motion to withdraw from the case based on an alleged conflict of interest and asked the court to allow defendant to withdraw his guilty plea. Following a hearing, the court found no conflict of interest and directed counsel to file a Crim. P. 32(d) motion to withdraw guilty plea on behalf of defendant. Counsel filed the motion three days later. The court did not address the motion and sentenced defendant to 40 years’ imprisonment.

Defendant subsequently filed two pro se Crim. P. 35(c) motions for postconviction relief based on ineffective assistance of plea counsel, again alleging that he had been incorrectly advised that he could be found guilty of murder as a complicitor simply because he was present when a person he had not intended to be killed was killed. The court appointed new counsel who expounded on defendant’s claims, and the court, without a hearing, denied the motions for postconviction relief.

On appeal, defendant argued that he was entitled to a hearing on his ineffective assistance of counsel assertions, and the Court of Appeals agreed. An ineffective assistance of counsel claim requires a defendant to establish that counsel’s performance fell below the level of reasonably competent assistance demanded of attorneys in criminal cases and that the deficient performance prejudiced the defense. A hearing is required unless the record establishes that the allegations, if proven true, would fail to establish either of these conditions. Here, defendant argued that he was not aware that the shooter intended to kill someone other than a person whom defendant wanted to kill. If true, these facts would not support a conviction for first or second degree murder under a complicitor theory, and failure to advise defendant of this could have constituted deficient performance on the part of plea counsel. Because there was no hearing to determine what plea counsel advised defendant and what the professional norms were, or whether defendant would have pleaded guilty anyway, the case was remanded for an evidentiary hearing on this issue. Remand is also necessary for an evidentiary hearing on defendant’s claim that plea counsel was ineffective for failing to advise him about appealing the ruling denying his Crim. P. 35(c) motion to withdraw the guilty plea.

The order was reversed and the case was remanded.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Defendant’s Failure to Communicate with Counsel Does Not Warrant Continuance

The Colorado Court of Appeals issued its opinion in People v. Faussett on Thursday, June 16, 2016.

Aggravated Motor Vehicle Theft in the First Degree—Motion for Continuance—Conflict of Interest—Co-Conspirator Statements.

Defendant’s conviction arose out of a theft of a scooter from a residential parking lot. Four days after the scooter was reported missing, police located a stolen pickup truck and ultimately arrested its driver. While in custody, the driver made several police-monitored phone calls to defendant and defendant’s girlfriend that included discussions about disposing of or selling the scooter. Defendant was arrested for the scooter’s theft and found guilty of aggravated motor vehicle theft in the first degree.

On appeal, defendant first argued it was error to deny his motion for a continuance. A week before trial, defendant’s counsel moved for a continuance because (1) the prosecutor had re-interviewed the girlfriend and counsel wanted to review a written report of the interview once it was completed, and (2) counsel had never met defendant outside of court to discuss the trial, and defendant had mentioned additional witnesses. The prosecutor responded that the new conversations with the girlfriend were consistent with what was in discovery. The court denied the motion. The Court of Appeals reviewed for abuse of discretion and found none: (1) there was no suggestion that the interview of the girlfriend contained anything different from what she had previously said, and (2) the lack of communication between counsel and defendant was the result of defendant’s actions, so no continuance should be granted. In addition, no offer of proof regarding the identity of the additional witnesses or what they might offer was made.

Defendant also argued that the court should have appointed “conflict-free counsel” to represent him. Because defendant never raised this issue with the district court nor expressed any dissatisfaction with counsel, there was no sua sponte requirement for the court to inquire as to this issue or provide him with different counsel.

Finally, defendant argued that it was error to admit evidence of four telephone calls made by the driver to him or the girlfriend. Prior to trial, the prosecutor filed a motion to allow admission of the calls under CRE 801(d)(2)(E) because they “were made by co-conspirators during the course and in furtherance of the conspiracy.” Defense counsel objected on the grounds that she wasn’t sure the prosecution could prove the existence of a conspiracy independent of the calls or that the calls were made in furtherance of the conspiracy. The prosecution argued that there was evidence that supported a conspiracy independent of the calls and the court agreed.

The Court examined each call to determine whether it was made in furtherance of the conspiracy. It found the first two calls were, but the last two, between the driver and the girlfriend, were not, and thus it was an abuse of discretion to admit them. However, because there was not a reasonable probability that their admission influenced the jury’s verdict, the error was harmless.

The judgment of conviction was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Economic Loss Rule Bars Tort Claims Against Mortgage Lender

The Colorado Court of Appeals issued its opinion in Miller v. Bank of New York Mellon on Thursday, June 16, 2016.

Dual Tracking—Failure to State a Claim for Relief—Economic Loss Rule—Implied Duty of Good Faith and Fair Dealing—Intentional Infliction of Emotional Distress—Fraud—Negligence.

The Millers obtained a note and deed of trust in 2004 to purchase a house, and the loan was transferred several times. They began missing payments in 2007 and filed for bankruptcy and received discharges in 2009. Bank of America, N.A. (BANA) then told the Millers to vacate their house, but they stayed and eventually entered into negotiations with BANA regarding a loan modification. In February 2012, Bank of New York Mellon (BNY Mellon) moved for an order authorizing the public trustee to proceed with a foreclosure sale, pursuant to C.R.C.P. 120. While this Rule 120 action was pending, the Millers filed a complaint against five financial institutions (collectively, the Banks) to quiet title to the house in their favor. The Millers alleged that the Banks improperly subjected them to dual tracking (a process under which banks pursue foreclosure on a home while negotiating a loan modification) in violation of the consent judgment that resulted from the National Mortgage Settlement, which generally prohibits dual tracking. The district court dismissed for failure to state a claim for relief. The court in the Rule 120 action authorized the sale in July 2012, but the Millers kept negotiating a loan modification with BANA. In 2013, BANA and the Millers agreed to a loan modification, the Millers began making payments, and BNY Mellon dismissed the Rule 120 action. In October 2014, the Millers amended their complaint, asserting claims for breach of the implied duty of good faith and fair dealing, intentional infliction of emotional distress, fraud, and negligence. The Banks moved to dismiss, and the court granted the motion.

On appeal, the Millers argued that the court erred in determining that the economic loss rule barred their tort claims. The economic loss rule provides that “a party suffering only economic loss from the breach of an express or implied contractual duty may not assert a tort claim for such a breach absent an independent duty of care under tort law.” Here, the consent judgment in a federal case challenging dual tracking did not create a private cause of action for third parties and there was no special relationship between the parties that established an independent duty.

The Millers also argued that the court erred in dismissing their contract claim, because they had a reasonable expectation that the Banks would not engage in dual tracking and would modify their loan. Although there is an implied duty of good faith and fair dealing in every contract, there was no reasonable expectation on the part of the Millers that their loan would be modified or that the Banks would refrain from dual tracking. Neither allegation has any basis in their contractual agreement.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Hearing Officer Erred in Ascribing Fault to Claimant for her Mental Health Disorders

The Colorado Court of Appeals issued its opinion in Mesa County Public Library District v. Industrial Claim Appeals Office on Thursday, June 16, 2016.

Unemployment Compensation Benefits—Mental Health Disorder.

Gomez worked for the Mesa County Public Library District (Library) for almost 25 years. In 2013, she began having performance issues and was placed on two successive performance improvement plans (PIPs). In September 2014, she was placed on a third PIP and told to produce a satisfactory organizational capacity report by October 7 or face additional disciplinary action, including discharge. She called in sick on that date, and again on October 9, and did not return to work again. On October 14, she submitted a doctor’s note advising that she was suffering from acute stress disorder and major depressive disorder. She was granted a request to remain off work for four to six weeks. The Library director terminated her on October 20, 2014 for failing to provide the organizational capacity report.

The hearing officer in her unemployment compensation benefits case determined that Gomez had become mentally unable to perform her job duties but found her “at fault” for becoming mentally unable to complete the report, and under C.R.S. § 8-73-108(5)(e)(XX), disqualified her from receiving benefits. On review, the Industrial Claim Appeals Office (Panel) adopted the hearing officer’s evidentiary findings but rejected as a matter of law the conclusion that Gomez was disqualified from receiving benefits because she was at fault for her own diagnosed mental disorders. It awarded her benefits under C.R.S. § 8-73-108(4)(j).

On appeal, the Library argued that the Panel substituted its findings of fact for those of the hearing officer. The Court of Appeals found that the Panel adopted the hearing officer’s findings of fact. The Court also rejected the Library’s contention that the evidence demonstrated that Gomez’s mental health disorder did not affect her ability to complete the report. The Court agreed with the Panel that the hearing officer erred in determining that Gomez was at fault for her nonvolitional conduct.

The Panel’s order was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Interrogation in Open Kitchen with Defendant’s Husband Present was Non-Custodial

The Colorado Court of Appeals issued its opinion in People v. Travis on Thursday, June 16, 2016.

Assault—Interview—Miranda—Motion to Suppress—Request for New Counsel—Continuance—Prosecutorial Misconduct.

Travis was convicted of second degree assault causing serious bodily injury, felony menacing, and third degree assault with a deadly weapon. She was sentenced to 10 years’ imprisonment and three years of mandatory parole.

On appeal, Travis argued that the trial court erroneously concluded that she was not in custody during the interview with police that occurred at her home and that, because she was not advised of her Miranda rights, the court erred in denying her motion to suppress the statements she made at that time. The Court of Appeals determined that (1) neither of the officers used physical restraint or force on Travis during the interview at her home; (2) Travis did not request to end the interview; (3) the interview was brief; (4) only two officers questioned Travis, the tone of the interview was conversational, and the questioning took place in Travis’s home with her husband in view; and (5) the interview took place in Travis’s kitchen, not in a secluded location. Thus, Travis was not in custody when she gave the statements at her home to the police, the statements were voluntary, and the trial court did not err in denying her motion to suppress them.

Travis also argued that the trial court abused its discretion when it denied her request for a continuance to seek new counsel on the morning of trial. Because there was insufficient information in the record to determine whether the trial court weighed the 11 essential factors or abused its discretion in denying the motion to continue, the case was remanded to the trial court for additional findings.

Additionally, Travis argued that the prosecutor’s closing argument was improper. However, the prosecutor’s remarks were a fair comment on the defense’s jury argument that while Travis was guilty of a crime, she was not guilty of the principal charges filed against her.

The judgment was affirmed in part and the case was remanded with directions.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Putative Adverse Possessor’s Property Rights are Superior to Everyone Else’s Except Actual Owner

The Colorado Court of Appeals issued its opinion in Lensky v. DiDomenico on Thursday, June 16, 2016.

Adverse Possession—Quiet Title—Putative Adverse Possessor.

In 1998, Lensky purchased a one-acre parcel of property from the Valdezes. Title insurance could not be provided because all of the structures and improvements that Lensky had purchased from the Valdezes were “off the deed” and actually located on adjacent land rather than on the deeded property. In 2001, Lensky filed a quiet title action, claiming fee simple ownership to the approximately 23 acres adjacent to the property he had purchased from the Valdezes by adverse possession. Litigation continued for a number of years. The trial court ultimately found in favor of defendants and ordered Lensky to remove certain structures that restricted access to the subject property. It further ordered Lensky and his associates to refrain from confronting defendants as they entered or left the subject property.

On appeal, Lensky contended that the trial court erred in finding that he had no rights as a putative adverse possessor. He argued that the Court of Appeals’ prior decision affirming his lack of legal title to the subject property fully adjudicated his prior claim to the property as an adverse possessor, but that it had no prospective effect. He also argued that his continued possession of the subject property as a putative adverse possessor gives him an interest in the property (including the right to restrict access to it) that is superior to everyone else’s interest except that of the rightful owner. The Court agreed, determining that neither the trial court’s prior order nor the division’s decision upholding that order addressed the parties’ possessory rights or Lensky’s ongoing right to possess the property, and neither prohibited him from continuing to attempt to adversely possess the property.

The trial court’s order prohibiting Lensky from excluding defendants from the subject property was reversed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Dormant Commerce Clause Not Violated Where Defendant Interacted with Colorado Investigator

The Colorado Court of Appeals issued its opinion in People v. Helms on Thursday, June 16, 2016.

Internet Child Exploitation Statute—CRE 404(b)—Bad Act Evidence—Evidence—Probation Revocation.

Defendant was convicted of two counts of Internet exploitation of a child. He was sentenced to 10 years of supervised probation on each count. The district court later revoked his probation when he failed to register as a sex offender and resentenced him for an indeterminate term of two years to life.

On appeal, defendant contended that the Internet child exploitation statute, C.R.S. § 18-3-405(1)(a), is facially unconstitutional for several reasons. The Court of Appeals disagreed. The statute does not violate the dormant Commerce Clause of the U.S. Constitution because the statute is limited to situations in which the criminal conduct occurs either wholly or partially in Colorado. It also does not violate the First Amendment because it is not overly broad, and it does not violate defendant’s constitutional right to due process because it is not vague.

Defendant also contended that the district court erred by admitting a statement he made, arguing that it was CRE 404(b) bad act evidence. However, the statement was not admitted as evidence of defendant’s bad character; rather, it directly rebutted his defense. Therefore, the district court did not err by admitting this evidence.

Defendant additionally argued that the evidence was insufficient to support his convictions. He argued that his conviction for count one was not supported by sufficient evidence because the jury was instructed that he must have committed the crime in Colorado to be guilty of child exploitation. However, the sufficiency of the evidence is measured against the elements of the offense rather than jury instructions. The child exploitation statute does not require that the actor be in Colorado at the time of the criminal communication. As to the second count, defendant’s conduct did not meet the requirements of the essential elements of the offense. Therefore, this conviction was reversed.

Defendant also argued that the district court erred by denying his motion for a mistrial after a witness testified about an inadmissible matter. Defense counsel elicited the statement from the witness, and although it was prejudicial, the court offered to give a curative instruction to the jury, which defense counsel declined. Therefore, the district court did not abuse its discretion by denying the motion for a mistrial.

Lastly, defendant contended that the district court’s revocation of his probation must be reversed because the district court did not adhere to the applicable statutory requirements. There was not sufficient evidence that defendant waived his right to be advised by the court through counsel, or that he was advised of potential penalties before the probation revocation hearing. In addition, the district court revoked defendant’s probation without obtaining and considering treatment and monitoring recommendations from defendant’s probation officer or treatment provider, as required by statute. Therefore, the district court’s revocation of defendant’s probation was reversed.

The judgment was affirmed in part and reversed in part, and the case was remanded.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Trial Court Within Discretion to Deny Mistrial Based on Defense Counsel’s Inappropriate Remarks

The Colorado Court of Appeals issued its opinion in Acierno v. Garyfallou, MD on Thursday, June 16, 2016.

Medical Malpractice—Mistrial—Prosecutorial Misconduct—Ex Parte—Witness—Physician–Patient Privilege—Costs—CRS § 13-16-105.

Acierno filed a medical malpractice suit against Dr. Garyfallou and other defendants. The other defendants settled, and the jury returned a verdict in favor of Dr. Garyfallou. Plaintiff appealed and defendant cross-appealed the trial court’s order denying his motion for costs.

On appeal, Acierno asserted that defense counsel’s (1) misstatement of the trial court’s jury instruction on the applicable standard of care and (2) improper comments related to “runaway juries, runaway verdicts, and adverse media” warranted a mistrial. Here, the jury had a written copy of the correct instructions, the judge carefully considered Acierno’s request for a mistrial, and the court took remedial actions by admonishing defense counsel in front of the jury and advising the jury to disregard defense counsel’s statements. Therefore, the court sufficiently addressed any prejudice to Acierno and a mistrial was not warranted. In addition, the trial court did not abuse its discretion in denying the motion for new trial (1) based on changed testimony by prosecutorial witnesses, because this argument was not preserved by a contemporaneous objection; and (2) based on Acierno’s contention that a defense witness violated the court’s sequestration order, because the trial court found there was no violation and Acierno did not point to anything in the record establishing that the court’s finding was clearly erroneous.

Acierno also contended that the trial court erred when it allowed defense counsel to meet ex parte with the radiologist who interpreted Acierno’s MRI and MRA results. The trial court did not abuse its discretion because it confined defendant’s informal questioning to matters not subject to physician–patient privilege and Acierno did not assert that residually privileged information was divulged.

Acierno also contended that the trial court erred in denying his motion for directed verdict on Dr. Garyfallou’s defense of pro rata liability. Because the jury concluded that the doctor did not breach the applicable standard of care, this error was harmless.

Dr. Garyfallou contended, and the Court of Appeals agreed, that the trial court erred in denying his motion for costs against Acierno. Such an award is mandatory under CRS § 13-16-105.

The judgment was affirmed, the order denying costs was reversed, and the case was remanded.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Deferred Judgment Is Not Final for Purposes of Appeal

The Colorado Court of Appeals issued its opinion in People v. Sosa on Thursday, June 16, 2016.

Deferred Judgment—Crim. P. 35(c)—Withdrawal of Guilty Plea—Crim. P. 32(d)—Final Judgment—Appeal.

Defendant entered into a plea agreement to a deferred judgment. Later, he filed a motion to withdraw his guilty pleas under Crim. P. 32(d) and 35(c).

Regarding the appeal of the district court’s denial of defendant’s Crim. P. 32(d) motion, no final, appealable judgment exists because defendant’s deferred judgment has not yet been revoked and he has not been sentenced. Therefore, defendant’s appeal of his Crim. P. 32(d) motion was dismissed, without prejudice, for lack of jurisdiction.

Regarding his appeal of the denial of his Crim. P. 35(c) motion, defendant raised no argument on appeal. Therefore, this argument was not considered and the district court’s order denying defendant’s Crim. P. 35(c) motion was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Announcement Sheet, 6/16/2016

On Thursday, June 16, 2016, the Colorado Court of Appeals issued nine published opinions and 28 unpublished opinions.

People v. Travis

Lensky v. DiDomenico

People v. Helms

Acierno v. Garyfallou

People v. Sosa

People v. Hunt

People v. Faussett

Miller v. Bank of New York Mellon

Mesa County Public Library District v. Industrial Claim Appeals Office

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: Announcement Sheet, 6/9/2016

On Thursday, June 9, 2016, the Colorado Court of Appeals issued no published opinion and 38 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: At-Risk Status of Victim Need Not Be Known to Defendant to Apply

The Colorado Court of Appeals issued its opinion in People v. Nardine on Thursday, June 2, 2016.

C.R.S. § 18-6.5-103(7)(c)—Mens Rea Element—At-Risk Juvenile—Prosecutorial Misconduct—Character Evidence—Other Acts Evidence.

Nardine was convicted of unlawful sexual conduct on an at-risk juvenile.

On appeal, Nardine contended that C.R.S. § 18-6.5-103(7)(c) has an implied mens rea element that requires the prosecution to prove that a defendant knew of the victim’s at-risk status. He thus argued that the evidence was insufficient to convict him and the trial court erroneously instructed the jury by submitting a special interrogatory that did not include a mens rea for the at-risk element. The court of appeals disagreed with his interpretation of the statute. A defendant need not know that the victim is “at-risk” in order to be convicted of unlawful sexual contact on an at-risk juvenile. Consequently, Nardine’s challenges to the sufficiency of the evidence and the special interrogatory were rejected.

Nardine also contended that numerous instances of prosecutorial misconduct during closing argument, in their totality, rose to the level of plain error and required reversal of his conviction. Under the circumstances of this case, the prosecutor improperly (1) characterized the defense theory as a disingenuous scheme commonly perpetuated by defense attorneys to take advantage of victims with mental illness to obtain wrongful acquittals; (2) appealed to the jurors’ religious beliefs and “lambasted” the defense theory by characterizing it as an attack on these beliefs; (3) argued that defense counsel did not believe his own client; (4) argued facts outside the record; and (5) vouched for witness credibility. Because the misconduct so undermined the fundamental fairness of the trial as to cast serious doubt on the reliability of the verdict, reversal was required.

Additionally, Nardine contended that the trial court should have excluded CRE 404(a) character evidence that he was “a sexual predator” and “not a very good person,” and CRE 404(b) evidence of specific other acts of sexual misconduct. The witness statements about Nardine being “not a good person” and a “sexual predator” were inadmissible under CRE 404(a). Evidence of other acts of sexual misconduct against others, however, was permissible to show that Nardine had a similar intent, motive, common plan, scheme, and method of operation.

The judgment was reversed and the case was remanded.

Summary provided courtesy of The Colorado Lawyer.