November 29, 2014

Colorado Court of Appeals: Improper Jury Instruction Amounted to Directed Verdict for Prosecution

The Colorado Court of Appeals issued its opinion in People v. Bertrand on Thursday, October 23, 2014.

Sexual Assault—Evidence—CRS §18-3-402(1)(b)—Asleep—Jury Instruction.

Defendant is the cousin of K.B., the alleged victim. K.B. suffered from developmental disabilities, and lived with her parents because she was unable to care for herself. On several occasions while defendant lived with K.B. and her family, defendant got into bed with K.B. and had sexual intercourse with her. K.B. later told her mother that defendant had had sex with her, but that she did not want to have sex with him. The family made a report to police, and a jury ultimately convicted defendant of two counts of sexual assault.

On appeal, defendant contended that there was insufficient evidence to show that K.B. was incapable of appraising the nature of her conduct as required by CRS § 18-3-402(1)(b). K.B. suffered from cognitive difficulties, and she took medication before bedtime that made her groggy and sleepy. The jury could have reasonably inferred from this evidence that she was incapable of appraising the nature of her conduct when defendant was having sex with her. The jury could also have reasonably concluded that defendant knew that K.B. was unable to appraise the nature of her conduct. Therefore, the evidence was sufficient to sustain defendant’s conviction under CRS § 18-3-402(1)(b).

Defendant also contended that one of the jury instructions improperly directed a verdict in favor of the prosecution. The jury instruction stated that “[a] person is incapable of appraising the nature of her conduct when she is asleep or partially asleep during an assault.” The instruction should have stated that a person “may be” incapable.Because the error was not harmless, the conviction was reversed and the case was remanded for a new trial.

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

Colorado Court of Appeals: Two Convictions for Same Incident Violated Rights Against Double Jeopardy

The Colorado Court of Appeals issued its opinion in People v. Frye on Thursday, October 23, 2014.

Miranda Rights—Suppression—Jury Question—Double Jeopardy—Controlled Substances—CRS § 18-8-203(1).

Defendant was arrested on outstanding warrants. While she was being booked into the Jefferson County jail, drugs were found on her person. A jury convicted her of multiple charges related to the drugs.

On appeal, defendant contended that the trial court erred in refusing to suppress her statement that she did not possess any drugs, which she made at the jail before having been advised of her right to remain silent. Although the trial court erred, the error was harmless beyond a reasonable doubt; evidence of defendant’s guilt was overwhelming.

Defendant also contended that the trial court erred in responding to a jury question dealing with an officer’s right to request identification from a passenger during a routine traffic stop. However, there was no reasonable probability that the error contributed to defendant’s conviction, because (1) the evidence of defendant’s guilt was overwhelming; (2) the court instructed the jury that it was not an issue for them to determine; and (3) it did not bolster the officer’s credibility regarding any material issue.

Defendant further contended that one conviction for introducing contraband into a detention facility must be vacated or merged because she could not be convicted twice for introducing two types of drugs at the same time. The search of defendant at the jail revealed methamphetamine, cocaine, and oxycodone. The jury convicted her on two of these counts and acquitted her on one of them, and the trial court imposed concurrent sentences on the two convictions. Because defendant’s entry into the jail occurred at the same time and place, without the influence of any intervening events, her convictions were a violation of her rights against double jeopardy. The case was remanded to vacate one of the convictions.

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

Colorado Court of Appeals: Prosecutor’s Improper Statements Did Not Constitute Error

The Colorado Court of Appeals issued its opinion in People v. Castillo on Thursday, October 23, 2014.

Initial Aggressor—Self Defense—Jury Instructions—Burden of Proof—Prosecutorial Misconduct.

Defendant went to a club in downtown Denver. After leaving the club, he engaged in a confrontation with an unidentified male in a busy parking lot, and police were called. Defendant began driving out of the parking lot, stopped his car, and got a shotgun out of his trunk. He began firing at the unidentified male and shot one of the officers, who had been returning fire at defendant. A jury convicted defendant of two counts of attempted second-degree murder and one count of second-degree assault.

Defendant argued that because no evidence supported an initial aggressor instruction, the trial court erred by instructing the jury that he was not entitled to self-defense if he was the initial aggressor. There was conflicting testimony from witnesses as to whether defendant was the initial aggressor. Based on these facts and because the prosecution needed to make only a minimal showing to support an instruction on an exception to self-defense, the trial court did not err in giving the initial aggressor instruction to the jury. Further, the jury instructions as a whole informed the jury that the prosecution had the burden of proving this exception to self-defense beyond a reasonable doubt.

Defendant argued that the trial court erred by instructing the jury that self-defense is not an affirmative defense if defendant, “with intent to cause bodily injury or death to another person, provoked the use of unlawful physical force by that person.” This instruction should not have been given because there was no evidence to support it. There was no evidence that the error misled the jury, however, so the error was harmless.

Defendant contended that numerous statements made by the prosecutor in closing argument were misleading as to both the facts of this case and the law of self-defense. Some of the prosecutor’s statements regarding the facts and law were improper, but the statements did not constitute reversible error. Moreover, the court instructed the jury that the prosecutor’s arguments were not evidence and that the jury should follow the jury instructions regarding the applicable law. The judgment was affirmed.

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

Colorado Court of Appeals: Applying Novotny to Case Pending on Appeal Not a Retroactive Application

The Colorado Court of Appeals issued its opinion in People v. Maestas on Thursday, October 23, 2014.

Challenge for Cause—Peremptory Challenge—Constitutional Right to Impartial Jury.

A jury found defendant guilty of aggravated robbery, menacing, and eluding police. A division of the Court of Appeals overturned defendant’s conviction and remanded the case for a new trial after determining the trial court had erred by denying one of defendant’s for-cause challenges. The Supreme Court remanded the case to the Court of Appeals for reconsideration in light of its recent decision in People v. Novotny, 2014 CO 18, which held that, where a district court erroneously deprives a defendant of a peremptory challenge, reversal is warranted only where the error was not “harmless under the proper outcome-determinative test.”

The Court first rejected defendant’s contention that applying Novotny retroactively to his case would violate federal and state due process guarantees. Applying Novotny to a case pending on appeal is not a retroactive application of the law and does not offend due process.

The Court agreed with defendant that the trial court abused its discretion by denying his challenges for cause to two prospective jurors, Juror F and Juror H, who indicated they would hold it against defendant if he refused to testify. The trial court denied defendant’s challenges for cause as to Jurors F and H, and defendant used a peremptory challenge to remove Juror H from the jury. Defendant had exhausted his peremptory challenges, so Juror F ultimately served on the jury. Because Juror F, a biased juror, sat on the panel, defendant’s constitutional right to an impartial jury was implicated, and reversal was required. The case was remanded for a new trial.

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

Colorado Court of Appeals: Announcement Sheet, 10/23/2014

On Thursday, October 23, 2014, the Colorado Court of Appeals issued 10 published opinions and 18 unpublished opinions.

People v. Maestas

People v. Castillo

People v. Frye

People v. Bertrand

People v. Beauvais

People v. Calderon

In re Marriage of Johnson

Markus v. Colorado Department of Revenue

In re Marriage of Corak

People in Interest of M.K.D.A.L.

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, 10/16/2014

On Thursday, October 16, 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: Involuntary Medication Administration Necessary to Render Defendant Competent to Stand Trial

The Colorado Court of Appeals issued its opinion in People in Interest of Hardesty on Thursday, October 9, 2014.

Involuntary Administration of Medication to Render Defendant Competent to Stand Trial.

Hardesty was sent to the Colorado Mental Health Institute in Pueblo (CMHIP) after he was found incompetent to proceed in two criminal cases filed against him. While at CMHIP, Hardesty refused to take antipsychotic medications. The People petitioned to have the medications involuntarily administered to render him competent to proceed in the criminal cases. The district court granted the People’s petition following a hearing in which it made a number of findings by clear and convincing evidence.

On appeal, Hardesty argued that the People failed to establish the legal requirements for administration of medications under Sell v. United States, 539 U.S. 166 (2003).The Court of Appeals disagreed.

Under Sell, a court must find the defendant: (1) is facing “serious criminal charges”; (2) the involuntary medication will significantly further the state’s interest in prosecution; (3) administration of the drugs is substantially likely to render the defendant competent to stand trial; (4) administration of the drugs is substantially unlikely to have side effects that will interfere significantly with the defendant’s ability to assist counsel in conducting a trial defense; (5) involuntary medication is necessary to further the identified governmental interests; (6) less intrusive means for administering the drugs must be considered; (7) any alternative, less intrusive treatments are unlikely to achieve substantially the same results; and (8) administration of the drugs is medically appropriate.

Hardesty challenged the first, second, and fifth factors listed above. On the first issue, Hardesty was charged with “[s]hoplifting that resulted in an assault and as a result then [became] a [r]obbery.” The Court held that robbery, as charged here, was a “serious” crime. The Court further concluded that, given the seriousness of the robbery charge, the government had a significant interest in restoring Hardesty to competency so that he could be tried.

Hardesty also argued that no evidence was presented to prove that ordering involuntary medication was necessary to further the state’s interest in prosecution. The lower court found by clear and convincing evidence that Hardesty was unlikely to be restored to competency without the medications. This finding was not clearly erroneous. The order was affirmed.

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

Colorado Court of Appeals: Statutory Employer Has Standing to Contest Lapse in Insurance Coverage

The Colorado Court of Appeals issued its opinion in Hoff v. Industrial Claim Appeals Office on Thursday, October 9, 2014.

Workers’ Compensation—Standing—Notice of Cancellation Provision—Estoppel.

Hoff owns a house that she uses as a rental property. After the house sustained hail damage to the roof, Hoff and her husband engaged Alliance Construction (Alliance) to negotiate with their insurance company to resolve their damage claim. A successful resolution was reached, and Hoff contracted with Alliance to repair the roof. Without Hoff’s knowledge, Alliance verbally subcontracted the roofing job to MDR Roofing, Inc. (MDR). Claimant was employed by MDR as a roofer.

While working on the roof in March 2011, claimant fell twenty-five feet to the ground and sustained serious injuries. Claimant sought medical and temporary total disability (TTD) benefits for his work-related injuries. Pinnacol, MDR’s insurer, denied the claim because MDR’s policy had lapsed for failure to pay premiums. Neither Alliance nor Hoff carried workers’ compensation insurance.

In October 2010, before starting the roofing job, Alliance obtained a certificate of insurance (certificate) from Pinnacol’s agent, Bradley Insurance Agency (Bradley), that verified that MDR had workers’ compensation insurance through Pinnacol.

On February 10, 2011, Pinnacol sent a certified letter to MDR advising the policy would be cancelled if payment of a past due premium was not received. The policy was canceled effective March 3, 2011 and letters to that effect were sent to MDR and Bradley.

Claimant was injured on March 10, 2011. On March 11, MDR’s owner went to Bradley’s office seeking to reinstate the policy. He was informed it could be reinstated if he paid the past due premium, paid a reinstatement fee, and signed a no-loss letter. The owner knew claimant had been injured, but he submitted the no-loss letter and did not inform Bradley of the accident.

Pinnacol reinstated the policy on March 11. MDR’s owner returned to Bradley’s office to report claimant’s injuries. Pinnacol contested the claim and cancelled the policy.

The administrative law judge (ALJ) determined that the owner’s failure to disclose claimant’s injuries when he signed the no-loss letter was a material misrepresentation, thus voiding the policy. The ALJ held MDR, Alliance, and Hoff jointly liable for claimant’s medical and TTD benefits. The Industrial Claim Appeals Office (Panel) agreed and affirmed.

Hoff appealed, arguing that Pinnacol was stopped from denying benefits to claimant. Pinnacol argued Hoff had no standing to challenge the cancellation of MDR’s policy.

The Court of Appeals held that Hoff had standing and agreed in part with her argument. Standing is established by Hoff demonstrating (1) she has sustained an injury in fact, and (2) the injury is to a legally protected interest. The first prong was clearly met. The liability imposed on Hoff by the ALJ and the Panel exceeded $300,000. The second prong was met because Hoff argued she was a beneficiary of specific promises that there was a workers’ compensation policy issued to MDR that was in force on the dates stated in the certificate. Her claim is independent of the Pinnacol policy and the Workers’ Compensation Act; it is one for promissory estoppel.

The Court found there were factual findings that need to be addressed by the ALJ regarding the estoppel argument. The case was remanded for a hearing, specifically to determine whether (1) Alliance or Hoff relied on the promises contained in the certificate, and (2) whether circumstances exist such that injustice can be avoided only by enforcement of the promises contained in the certificate.

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

Colorado Court of Appeals: Although Unusual, Forced Sale Appropriate Remedy to Continuing Trespass

The Colorado Court of Appeals issued its opinion in Graham v. Jules Investment, Inc. on Thursday, October 9, 2014.

Forced Sale in Encroachment Case.

Serenity Springs Wildlife Center is a ten-acre wildlife refuge in El Paso County that houses approximately 140 tigers, lions, and other exotic, threatened, or endangered animals. The refuge was once part of a 320-acre parcel of land. In 1997, a perimeter fence was erected enclosing the refuge and a deed was recorded severing it from the original parcel. In 1998, another deed severed a 36.5-acre parcel directly south from the refuge. A home was built on the severed parcel approximately 1,000 feet from the refuge.

Beginning in 2000, the property went through cycles of foreclosure and reacquisition. It was eventually sold to plaintiffs in 2010. In 2012, plaintiffs hired a surveyor, who told them that 1.7 acres (surrounded by a fence) was on plaintiffs’ parcel. The fence enclosed pens and lion and tiger dens. The footings were 16″-wide concrete slabs buried 2′ to 4′ in the ground and about nineteen lions and tigers lived on the 1.7 acres.

Plaintiffs sued defendants for trespass. The trial court held that the structures alone were not a trespass, but that the use and presence of the structures “deprive[d] . . . plaintiffs of the use of” 1.7 acres of their 36.5-acre parcel and “facilitated a regular, if not continuing trespass” of the refuge’s staff. The court held a hearing on the appropriate remedy. Defendants asked the court to allow them to purchase the 1.7 acres from plaintiffs, because removing the structures and rebuilding them would create a severe hardship. Plaintiffs asked for everything to be removed and the property restored to its “natural state.” The trial court held that under the “unique and unusual facts” of this case, it would order a forced sale of the 1.7 acres to defendants. It ordered conveyance in exchange for $5,870, which was the value of the 1.7 acres according to plaintiffs. The court also ordered payment of $1,737, which was the amount of the application fee for obtaining a waiver from the 35-acre requirement from El Paso County.

On appeal, plaintiffs argued it was error not to find that the structures themselves were a trespass and encroachment. The Court of Appeals did not decide this issue because the trial court had already determined there had been a trespass and had crafted a remedy. Regarding the remedy, the Court found that, though extraordinary, it is not unheard of to order a forced sale when the hardships weigh heavily on the defendant’s side. Therefore, it was not an abuse of discretion to order a sale under these unique circumstances. The judgment was affirmed.

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

Colorado Court of Appeals: Named Insured Means All Persons Named in Policy for UM Coverage Purposes

The Colorado Court of Appeals issued its opinion in Johnson v. State Farm Mutual Automobile Insurance Co, Inc. on Thursday, October 9, 2014.

Uninsured or Underinsured Motorist Coverage—Scope of Waiver.

Daphne Satriano helped her roommate, plaintiff, buy a car. When plaintiff’s insurance policy expired, Satriano called her insurance company (State Farm) to obtain a policy for the car. Plaintiff was not present during the call. Both plaintiff and Satriano were listed as “named insured” and Satriano signed a form waiving uninsured or underinsured motorist (UM/UIM) coverage. Plaintiff did not sign the form, nor was he aware of it. Satriano told plaintiff he was “fully covered.” The written policy, mailed to Satriano, did not state whether UM/UIM coverage had been waived.

Plaintiff was seriously injured in an accident. The at-fault driver was underinsured. State Farm paid the policy limits of the UM/UIM coverage from a second policy that Satriano had on her car, but refused to pay under the policy on plaintiff’s car. Plaintiff sued State Farm, and the trial court found that Satriano had acted as agent for plaintiff in waiving the UM/UIM coverage and the driver was bound by that waiver.

The Court of Appeals reversed, holding that State Farm did not show that plaintiff expressly waived UM/UIM coverage on his car’s policy. The general rule in Colorado is that automobile liability insurance policies must contain coverage for bodily injury damages caused by uninsured or underinsured motorists unless “the named insured” waives such coverage in writing. The Court found it was unambiguous that a “named insured” under the UM/UIM statutes means all persons listed in a policy. Even if the term were not unambiguous, the legislative history and policies for UM/UIM coverage support the conclusion that a waiver of UM/UIM coverage is effective only as to each named insured that has expressly waived it. The Court then examined common law agency principles and concluded that one named insured may not act as an agent for another in waiving UM/UIM coverage on the other’s behalf unless the agent acts with express actual authority from the other. The judgment was reversed and the case was remanded.

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

Colorado Court of Appeals: No Error to Include Nurse in Physician Malpractice Instruction

The Colorado Court of Appeals issued its opinion in Gasteazoro v. Catholic Health Initiatives Colorado, Inc. on Thursday, October 9, 2014.

Medical Negligence—Including Nurses in Pattern Exercise of Judgment Instruction—Expert Testimony Objections.

Plaintiff arrived at the emergency room of the defendant hospital. Nurse Yeager was the first person to attend to her. Plaintiff complained of headache, nausea, dizziness, and neck pain. She had high blood pressure and low blood oxygen saturation. Defendant Dr. Overholt diagnosed a cervical sprain and ordered her discharged. Nurse Scolardi processed the discharge. Plaintiff’s blood pressure remained elevated.

Ten days later, plaintiff was found unresponsive in her home, following a hemorrhagic stroke resulting from a ruptured aneurysm in her brain. The stroke caused serious injuries.

Plaintiff alleged her treatment in the emergency room was below the standard of care in three ways: (1) Nurse Yeager did not properly triage her; (2) Dr. Overholt failed to recognize that her symptoms were consistent with an impending cerebral vascular incident (CVA) and did not order tests that would have detected a CVA or an aneurysm; and (3) given plaintiff’s unstable vital signs, Nurse Scolardi did not follow the hospital’s policies when processing her discharge. Following trial, a jury returned a verdict in favor of the hospital and Dr. Overholt.

On appeal, plaintiff argued it was error to include the words “or nurse” following every reference to “a physician” in the pattern instruction CJI-Civ. 15:4. The Court of Appeals dismissed plaintiff’s argument that a court may not depart from CJI, because CJI does not cover all possible legal principles that may be applicable in a case. In addition, the instruction at issue includes in its Notes on Use that it is “generally applicable to members of other healing arts.”

Plaintiff also argued that although no Colorado case has addressed whether a nurse should be included in a professional judgment instruction, decisions discussing why the instruction is proper for physicians weigh against giving the instruction as to nurses. The Court held that the trial court did not abuse its broad discretion by including nurses in the exercise-of-judgment instruction because: (1) the issue was unresolved in Colorado cases; (2) language in CJI-Civ. supports extending the instruction to healthcare professionals other than physicians; (3) one Colorado case and several statutes classify nurses as medical professionals; and (4) the hospital’s policy vesting nurses with the prerogative of challenging a physician’s order refers to “good clinical judgment” in carrying out “authorized physician orders.”

Plaintiff further argued that the trial court erred in overruling plaintiff’s objections to expert testimony from a neurosurgeon as violating a stipulation or improperly opining on the standard of care for a specialist in emergency medicine. The Court found that the neurosurgeon properly analyzed plaintiff’s presentation and history as they related to his specialty and offered opinions within that specialty. Therefore, the trial court did not abuse its discretion. The judgment was affirmed.

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

Colorado Court of Appeals: Treasurer Did Not Undertake Diligent Inquiry as to Actual Residence for Notice

The Colorado Court of Appeals issued its opinion in Cordell v. Klingsheim on Thursday, October 9, 2014.

Tax Lien—Deed—Treasurer—Diligent Inquiry—Notice—Jurisdictional.

Plaintiffs Carl and Wanda Cordell were record owners of a tract of land in La Plata County (Tract 1). Carl Cordell was also the record owner of an adjoining tract (Tract 2). The Cordells failed to pay the taxes owed on the properties, and Brenda Heller purchased the tax liens on the properties. Heller assigned the tax liens to Klingsheim, who later requested and received deeds from the La Plata County Treasurer to the two properties after the Treasurer sent notice to the Cordells. Upon learning of the Treasurer’s deeds, the Cordells filed the present action seeking, as relevant here, a declaratory judgment that the Treasurer’s deeds are void, which the trial court granted.

On appeal, Klingsheim contended that the trial court erred in concluding that the Treasurer had failed to undertake diligent inquiry in attempting to determine Carl’s and Wanda’s residences. The Treasurer sent the notices, by certified mail, to 705 N. Vine, Farmington, New Mexico, which was the address listed for them in the county tax rolls. The return receipts from the mailings, however, indicated that the notices were not delivered to plaintiffs, nor were they delivered to 705 N. Vine. Rather, the receipts indicated that the notices were delivered to Cleo Cordell at 703 N. Vine, and the box for “agent” on the return receipts had not been checked. Despite this discrepancy, the Treasurer conducted no further inquiry to determine whether 705 N. Vine was indeed plaintiffs’ residence.

Such inaction after learning that the notices were not delivered either to plaintiffs or to a person claiming to be their agent does not constitute “diligent inquiry” in attempting to determine their residences. Because a treasurer’s “full compliance” with the requirements of CRS §39-11-128 is jurisdictional, the trial court properly set aside the deeds as void.

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