September 4, 2015

Colorado Court of Appeals: Scope of Police Officer’s Testimony Within Knowledge of Average Computer User

The Colorado Court of Appeals issued its opinion in People v. Froehler on Thursday, July 30, 2015.

Child Pornography—Lay Testimony—Personal Observations—Specialized Knowledge.

Froehler accidently left a flash drive on a public business computer at a hotel. The flash drive was recovered by two hotel guests, who opened it and found that some of the files contained child pornography. They turned over the flash drive to hotel security, who contacted police. A jury found Froehler guilty of sexual exploitation of a child.

On appeal, Froehler contended that the trial court abused its discretion by allowing the detective who investigated the case to give improper lay testimony. The detective testified about her personal observations of the dates the files on the flash drive were created and modified. Admission of the detective’s lay testimony was proper under CRE 701 because the method she used to view the dates did not require any specialized knowledge or familiarity with computers beyond that of the average lay person. The detective’s testimony about the ImageScan software program used to search Froehler’s home computers, however, was improperly admitted as lay testimony because this testimony did require specialized knowledge about the software. Nevertheless, its admission was harmless because no child pornography had been found on Froehler’s home computers and this evidence had no direct bearing on whether Froehler “knowingly possessed” the child pornography on the flash drive. The judgment was affirmed.

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

Colorado Court of Appeals: Affirmative Self-Defense Instruction Available for All General Intent Crimes

The Colorado Court of Appeals issued its opinion in People v. DeGreat on Thursday, July 30, 2015.

Self-Defense—Robbery—Jury Instruction—Peremptory Challenge—BatsonChallenge.

DeGreat’s criminal charges arose from an altercation with a taxi cab driver over the fare, which culminated in DeGreat stabbing and wounding the driver. DeGreat defended on a theory of self-defense. The jury found DeGreat guilty of aggravated robbery and a related crime of violence count.

On appeal, DeGreat contended that, given the unique facts presented, he was entitled to a jury instruction on self-defense as an affirmative defense to aggravated robbery. A person may use physical force to defend himself from what “he reasonably believes to be the use or imminent use of unlawful physical force” by another person. Here, evidence was presented that supported an affirmative self-defense instruction, and DeGreat successfully defended against attempted murder and first-degree assault charges on that basis. Because the robbery was intertwined with the assault, the jury could have concluded that DeGreat had the right to defend himself. The refusal to give the self-defense instruction for the charge of aggravated robbery lowered the prosecution’s burden of proof and was not harmless. Therefore, DeGreat’s aggravated robbery conviction was reversed and the case was remanded for a new trial.

DeGreat also contended that the trial court erred in denying his Batson challenge to the prosecutor’s use of a peremptory challenge to remove Juror M, an African American, from the panel [Batson v. Kentucky, 476 U.S. 79 (1986)]. In light of the prosecutor’s stated basis for the strike, which was Juror M’s reaction to self-defense questioning, the trial court did not err in finding the prosecution offered a good faith, race-neutral basis for its peremptory challenge.

DeGreat contended that the trial court plainly erred in failing to sua sponte strike testimony that DeGreat had been offered a plea bargain. DeGreat’s attorney did not make a contemporaneous objection to this testimony. Because no binding precedent clearly precludes evidence regarding plea offers, the trial court could not have been expected to sua sponte strike such unsolicited testimony.

DeGreat contended that the trial court erred in admitting recorded phone calls he placed from jail in which he attempted to solicit the victim not to appear for trial. There is no reasonable expectation of privacy in phone calls placed from jail. Furthermore, the wiretapping statute does not apply to inmate phone calls placed from jail. Thus, the trial court did not err in admitting the jailhouse phone calls.

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

Colorado Court of Appeals: Announcement Sheet, 7/30/2015

On Thursday, July 30, 2015, the Colorado Court of Appeals issued six published opinions and 28 unpublished opinions.

People v. DeGreat

People v. Froehler

In the Interest of Neher v. Neher

Zeke Coffee, Inc. v. Pappas-Alstad Partnership

Todd v. Hause

People in Interest of C.G.

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, 7/23/2015

On Thursday, July 23, 2015, the Colorado Court of Appeals issued no published opinion and 49 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: Maintenance Awards Exempt from Attorney Charging Liens

The Colorado Court of Appeals issued its opinion in In re Marriage of Dixon v. Samuel J. Stoorman & Associates PC on Thursday, July 16, 2015.

Charging Lien—Maintenance—Attorney Fees.

Samuel J. Stoorman & Associates PC (law firm) sought to enforce its lien against the maintenance payments that husband was obligated to pay to the law firm’s former client (wife). The law firm had represented wife in the dissolution action giving rise to husband’s maintenance obligation. The trial court determined that the maintenance payments were exempt from enforcement of the attorney’s lien.

On appeal, the law firm contended that the trial court erred in finding that the law firm’s attorney’s lien could not be enforced against husband’s spousal maintenance obligations. A charging lien automatically attaches to the fruits of the attorney’s representation of the client, to the extent of the attorney’s reasonable fees remaining due and unpaid. An attorney may immediately enforce the lien against the client once judgment in favor of the client is entered. Maintenance payments and obligations are exempt from enforcement of the charging lien. Accordingly, an attorney’s charging lien may not be enforced against a court-ordered spousal maintenance obligation or payment. The trial court’s denial of the law firm’s motion to enforce the lien against husband’s maintenance obligations to wife was affirmed. Nevertheless, the law firm’s position did not lack substantial justification because the question whether a charging lien may be enforced against spousal maintenance payments or obligations had not been decided at the time of the law firm’s motion. Consequently, the award of attorney fees and costs to husband was reversed and husband’s request for an award of attorney fees and costs incurred on appeal was denied.

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

Colorado Court of Appeals: Seller in Installment Land Contract Not Landowner Under Premises Liability Act

The Colorado Court of Appeals issued its opinion in Lucero v. Ulvestad on Thursday, July 16, 2015.

Installment Land Contract—Landowner—Colorado Premises Liability Act—Trespasser—Injuries—Negligence.

This case arose from 15-year-old Lucero’s unsupervised use of a steam room in a home purchased by Landers from Ulvestad. The installment land contract provided Landers immediate possession of the property, but record title would remain in Ulvestad’s name until Landers paid the entire purchase price. With permission from Landers, Lucero entered the steam room and suffered a seizure rendering her unconscious. Before she was found, Lucero suffered severe burns to her face, head, and arm. Lucero brought this lawsuit against both Landers and Ulvestad. The trial court found that Ulvestad owed Lucero no common law duty of care and dismissed her negligence claim. The jury returned a verdict in favor of Ulvestad on Lucero’s claim under the Colorado Premises Liability Act (Act).

Lucero appealed the trial court’s determination that she was a trespasser on the property at the time she was injured. Based on the plain language of the installment land contract, Ulvestad, on the date possession of the property was transferred to Landers, was no longer a person “in possession of real property” or “legally responsible for the condition of real property.” Therefore, because Ulvestad was not a landowner under the Act, the trial court should have granted Ulvestad’s motion for a directed verdict. Therefore, Lucero was not harmed by the trespasser determination, and the judgment against Lucero was affirmed.

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

Colorado Court of Appeals: Red Rocks’ Creation Rock is Natural Condition of Unimproved Property

The Colorado Court of Appeals issued its opinion in Ackerman v. City & County of Denver on Thursday, July 16, 2015.

Personal Injury—Colorado Governmental Immunity Act—Waiver—Unimproved Property.

Plaintiffs filed this personal injury action after being struck and injured by rocks that fell from “Creation Rock,” a rock formation that abuts one side of the Red Rocks Park amphitheater, while attending a concert. The City and County of Denver (Denver) brought this interlocutory appeal after the trial court determined that Denver’s immunity from suit had been waived.

On appeal, Denver argued that the trial court erred in finding it had waived its immunity under the Colorado Governmental Immunity Act (CGIA). Creation Rock is a natural sandstone monolith that rises 300 feet and extends the entire length of the amphitheater on the north side. Therefore, Creation Rock is a natural condition of unimproved property. Denver’s voluntary efforts to protect the public from a natural condition does not render the government liable for injuries that occur when those efforts are inadequate. Further, plaintiffs’ location in the amphitheater does not support a waiver of immunity under CRS § 24-10-106(1)(e) for injuries caused by a natural condition. The order was reversed and the case was remanded with directions to dismiss plaintiffs’ claims against Denver for lack of subject matter jurisdiction under the CGIA and to award Denver its attorney fees.

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

Colorado Court of Appeals: Secured Creditor With Disallowed Claim Against Estate Can Enforce Underlying Security

The Colorado Court of Appeals issued its opinion in Oldham v. Pedrie on Thursday, July 16, 2015.

Real Property—Promissory Note—Deed of Trust—Probate—Notice of Claim—Disallowance—Foreclosure—Novation.

This appeal involves a parcel of land in Teller County first purchased by Lorna Oldham in 1976 from Donald Pedrie in exchange for a promissory note. In 2005, Lorna Oldham signed a second promissory note to replace the first promissory note. In 2007, she died, and Pedrie filed a notice of claim against the Estate of Lorna Oldham for the amount owing on the promissory note. The personal representative disallowed a portion of Pedrie’s claim, Pedrie threatened foreclosure of the property, and the trial court allowed him to proceed with his foreclosure proceedings.

On appeal, the Oldhams and the Estate contended that the 1976 Deed of Trust was extinguished when Pedrie declined to contest the disallowance in the Michigan court. Under the Colorado and Michigan probate codes, the requirement to file a notice of claim in an estate proceeding does not affect or prevent the right of a secured creditor to enforce a mortgage or other liens on estate property. Further, a secured creditor is not required to pursue an unconditional claim that is disallowed. Therefore, a secured creditor’s lien on real property is not extinguished when the creditor presents an unconditional claim against a decedent’s estate but does not pursue a disallowed claim within sixty-three days. The secured creditor may still pursue a foreclosure action to enforce the lien. Therefore, the district court did not err when it found that Pedrie held a valid deed of trust on the Teller County property.

The Oldhams also contended that Pedrie’s 1976 lien on the Teller County property was extinguished under CRS § 38-39-207, either because Pedrie accepted a new promissory note in 2005 that was not secured by a deed of trust or because there was a novation. The record contains unrebutted testimony that the principal plus interest due on the first note was greater than the amount due on the 2005 promissory note. Under these circumstances, the 2005 promissory note did not constitute a novation and did not extinguish the 1976 Deed of Trust.

Finally, the Oldhams contended that the district court erred by not making a finding on the total amount owed on the debt secured by the deed of trust. Pursuant to CRCP 120, the district court was not required to determine the amount remaining on secured debt. The Trial Management Order (TMO), however, required the court to determine the payoff amount. Therefore, the district court erred in not complying with the TMO in this regard. The judgment was affirmed in part and reversed in part, and the case was remanded to the district court to determine the amount owed by the Oldhams on the 1976 Deed of Trust.

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

Colorado Court of Appeals: Special District May Regulate Use of Property It Owns

The Colorado Court of Appeals issued its opinion in Aspen Springs Metropolitan District v. Keno on Thursday, July 16, 2015.

Metropolitan District—Real Property—Trespass—Willful—Fence Law—Contempt—Remedial Sanctions—Purge Clause.

Keno maintained a flock of sheep and grazed it on a parcel of land known as the “Greenbelt.” The Greenbelt was owned by Aspen Springs Metropolitan District (Aspen Springs). In 2011, the Aspen Springs Board passed a resolution prohibiting the grazing or tethering of livestock on the Greenbelt without the Board’s prior written permission. Keno continued to graze his sheep on the Greenbelt, and Aspen Springs sought an injunction preventing the grazing. Keno nonetheless continued to pasture his sheep on the Greenbelt and had twice been found in contempt by the time the court issued its final judgment permanently enjoining Keno from allowing his animals to graze on the Greenbelt.

On appeal, Keno contended that, as a special district and creature of statute, Aspen Springs lacks authority to regulate the use of property it owns. Among the express powers granted to special districts are the powers “[t]o acquire, dispose of, and encumber real and personal property including, without limitation, rights and interests in property, leases, and easements necessary to the functions or the operation of the special district.” The right to own property is necessary to these express powers. Property ownership generally includes the power to exclude others. Therefore, a special or metropolitan district may regulate the use of and access to property it owns. Accordingly, the district court did not err in holding that Aspen Springs has the power to prohibit and limit grazing activities on the Greenbelt.

Keno also contended that the district court erred in concluding that the Fence Law protects Aspen Springs from a willful trespass onto the Greenbelt, despite the fact the Greenbelt is unenclosed by a lawful fence. The Fence Law does not protect livestock owners who deliberately pasture their livestock on unenclosed lands of another, particularly when done against the owner’s will. Accordingly, the district court did not err in concluding that the Fence Law protects Aspen Springs from willful trespass onto its property.

Keno further asserted that the court erred in awarding attorney fees and costs as a remedial sanction after finding him in contempt a second time for violating the preliminary injunction. A remedial sanction must include a purge clause. Because the sheep grazing activities that resulted in Keno’s contempt citation were not ongoing at the time of the contempt hearing, Keno could not purge his contempt because he could not undo what he had done. Therefore, remedial sanctions, such as the assessment of costs and attorney fees, could not be imposed against Keno under these circumstances, and the trial court erred in awarding them. Instead, the court could impose only punitive sanctions. The judgment was affirmed in part and the order was vacated in part.

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

Colorado Court of Appeals: Counsel Not Ineffective for Failing to Appeal POWPO Conviction to Supreme Court

The Colorado Court of Appeals issued its opinion in People v. Ray on Thursday, July 16, 2015.

Possession of a Weapon by a Previous Offender—Ineffective Assistance of Counsel—Certiorari Petition—U.S. Supreme Court—Investigation—Affirmative Defense.

After police officers observed Ray driving his vehicle straight through an intersection while in a left turn lane, exceeding the speed limit, playing loud music, and driving recklessly, they stopped and searched his car, discovering a BB gun and a firearm. Ray was on probation after having been adjudicated a delinquent on controlled substances and motor vehicle theft charges. Ray was charged with and convicted of Possession of a Weapon by a Previous Offender (POWPO). Ray is on death row after having been convicted of first-degree murder in a separate case, and his POWPO conviction was used as an aggravating factor in determining his death sentence. Ray filed a Crim.P. 35(c) motion for post-conviction relief, which was denied.

On appeal, Ray contended that appellate counsel rendered ineffective assistance by failing to file a certiorari petition with the U.S. Supreme Court. Ray had no right to counsel to pursue a petition for certiorari review in the Supreme Court. Further, he did not establish any resulting prejudice from failure to file a petition, because (1) he failed to show that it was likely the petition would be granted, (2) the exclusionary rule would not have precluded suppression of the firearm found in his car, and (3) the good faith exception to the exclusionary rule would have ultimately precluded suppression of the firearm.

Ray also contended that trial counsel rendered ineffective assistance by failing to investigate whether others had driven his car before the POWPO arrest. Because there was no reasonable probability that the result of the trial would have changed if evidence that others had driven the car had been admitted, the court did not err in determining this claim was raised and resolved on direct appeal.

Finally, Ray contended that trial counsel rendered ineffective assistance by failing to investigate a potential affirmative defense based on his Second Amendment right to possess firearms for self-defense. However, such a defense was not supported by the evidence and would have conflicted with Ray’s theory of defense that he did not know the firearm was in his car. The order was affirmed.

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

Colorado Court of Appeals: Court Erred by Allowing Defense Counsel to Withdraw Without Questioning Defendant

The Colorado Court of Appeals issued its opinion in People v. Cardenas on Thursday, July 16, 2015.

Motion to Withdraw—Reversal.

Defendant was found guilty of various counts of second-degree burglary, attempted second-degree burglary, and theft. On appeal, defendant contended that the court’s failure to include him in a hearing on his attorney’s motion to withdraw and failure to inquire about his objections to or confusion about that motion, before allowing the attorney to withdraw, require reversal of his convictions. Defense counsel, who had replaced a public defender, filed a motion to withdraw, citing substantial and irreconcilable differences of opinion concerning the course of scope of representation. The court asked defendant’s counsel about the reasons for withdraw without the presence of defendant, and then asked defendant about the reasons for withdrawal, including difficulties with communication, but did not rule on the motion. The case was transferred to another judge, who held an in camera review without the presence of defendant and thereafter allowed defense counsel to withdraw. Without knowing what communication occurred between counsel and the court, defendant’s absence created a risk that his right to a fair trial was impaired. For this reason and because defendant’s presence was required by the rules of criminal procedure, the second judge abused his discretion in granting the motion without including defendant in the proceedings. Accordingly, the judgment of conviction was reversed, defendant’s sentence was vacated, and the case was remanded for a new trial.

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

Colorado Court of Appeals: Suppression of DNA Evidence Not Necessary Despite Warrantless DNA Collections

The Colorado Court of Appeals issued its opinion in People v. Lancaster on Thursday, July 16, 2015.

Sexual Assault—Motion to Suppress—DNA Evidence—Rape Shield Statute—Prior False Reports.

Lancaster was convicted of numerous counts of kidnapping, sexual assault, menacing, and third-degree assault. He was sentenced to an indeterminate prison term of twenty-five years to life on the sexual assault counts.

On appeal, Lancaster contended that the trial court erred in denying his motion to suppress DNA evidence that he asserted was developed as a result of violations of his federal and state constitutional rights. After Lancaster was arrested on other charges, the police took a buccal swab of Lancaster’s mouth, which resulted in a match with the DNA profile of the man who had sexually assaulted the victim in this case. Based on this initial match, the police obtained an order to collect another DNA sample from Lancaster, which was also a match with the DNA profile of the man who had sexually assaulted the victim in this case. Because neither of the subsequent crimes for which Lancaster was arrested were felonies, the police were not authorized to take the samples. However, the police’s violation of the law was not willful, and the government’s interest in the DNA sample was not outweighed by Lancaster’s privacy interests. Therefore, the trial court did not err in denying Lancaster’s motion to suppress the DNA profile that was allegedly developed as a result of the prior warrantless collections of DNA evidence from him.

Lancaster also contended that the trial court abused its discretion and violated his constitutional right to present a defense when it denied without an evidentiary hearing his motion to allow him to introduce evidence that the victim had a history of making false allegations of sexual assault. The rape shield statute requires a defendant to make an offer of proofthat the alleged victim made multiple reports of prior or subsequent sexual assaults that were false. Here, although the victim made two prior allegations of sexual assault against other individuals, Lancaster’s offer of proof that the second charge was dismissed was insufficient to demonstrate the falsity of the victim’s second report. Accordingly, Lancaster’s offer of proof demonstrated, at most, only one prior false report of sexual assault. The offer was thus insufficient to warrant a hearing under the rape shield statute. Further, because Lancaster denied that he knew the victim, he was not denied the right to present a complete defense because this evidence was contrary to his theory of the case.

Finally, Lancaster contended that the trial court misapprehended the sentencing range for sexual assault and erroneously sentenced him outside the presumptive range. Because the record was not sufficiently developed for the Court of Appeals to determine this issue, the sentences on the sexual assault counts were vacated and the case was remanded for resentencing on those counts.

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