October 31, 2014

Colorado Court of Appeals: Announcement Sheet, 10/2/2014

On Thursday, October 2, 2014, the Colorado Court of Appeals issued no published opinion and 40 unpublished opinions.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions.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: Warrantless Search of Cell Phone Violated Fourth Amendment

The Colorado Court of Appeals issued its opinion in People v. Omwanda on Thursday, September 25, 2014.

Evidence Suppression of Information on Cell Phone—Theory of Defense Instruction.

Before trial, defendant sought to suppress evidence that police had recovered from his cell phone. At the suppression hearing, an officer testified that he stopped a car carrying six people, including defendant. With the driver’s permission, the officer searched inside the car, where he found electronic scales and a pill bottle containing cocaine. Two passengers said the pill bottle belonged to defendant.

The officer arrested and searched defendant. The search revealed another pill bottle and a cell phone. The second pill bottle contained a white residue. Defendant asked the officer to give the cell phone to another passenger, but the officer told him he would keep it as evidence. The officer read three text messages on the phone. All three indicated cocaine use and purchase.

The officer later applied for, and received, a warrant to search the phone. The warrant application quoted the text messages. The search of the phone pursuant to the warrant revealed additional communications and information indicative of drug dealing.

The trial court denied the motion to suppress because the search was incident to the arrest. The jury acquitted defendant of possession with intent to distribute but convicted him of possession of a controlled substance.

The Court of Appeals agreed with defendant that the initial search of the phone violated the Fourth Amendment as enunciated by the U.S. Supreme Court in Riley v. CaliforniaRiley v. California, ___ U.S. ___, 134 S.Ct. 2473 (2014). In Riley, the Court held “that a warrant is generally required before . . . a search [of information on a cell phone], even when a cell phone is seized incident to arrest.”

The People argued that even if the initial search was unlawful, the police independently discovered the information on the phone pursuant to the search warrant. A court may admit unconstitutionally obtained evidence “if the prosecution can establish that it was also discovered by means independent of the illegality.” The Court reviewed the officer’s warrant application and found probable cause to support the issuance of the warrant. The issue turns on whether the initial search of the three text messages affected the officer’s decision to seek the warrant. This required further factual findings. Accordingly, the case was remanded for further proceedings on this issue.

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

Colorado Court of Appeals: Genuine Issues of Material Fact Precluded Judicial Dissolution of LLC

The Colorado Court of Appeals issued its opinion in Gagne v. Gagne on Thursday, September 25, 2014.

Limited Liability Company—Summary Judgment—Judicial Dissolution—Declaratory Judgment—Notice—Attorney Fees.

Paula and Richard Gagne, mother and son, are the sole members of the four limited liability companies (LLCs), each of which owns multi-unit apartment complexes. Richard initiated this action, alleging that he and Paula had been unable to agree on the continued operation and management of the LLCs and had reached an impasse as to an equitable distribution of the LLCs or their assets. Richard requested judicial dissolution of the LLCs, a declaratory judgment regarding their respective rights, and the appointment of a receiver. The district court issued a declaratory judgment, granted partial summary judgment to Paula on Richard’s judicial dissolution claim, denied Richard’s request to require Paula to disgorge the attorney fees that the LLCs paid on her behalf, and denied Richard’s requests for attorney fees.

On appeal, Richard contended that the district court erred in granting partial summary judgment to Paula on his claim for judicial dissolution. The Court of Appeals was unable to determine, as a matter of law, whether the LLC Agreements provide an effective means for resolving the disagreements between Paula and Richard. Because there were genuine issues of material fact precluding the entry of partial summary judgment on Richard’s judicial dissolution claim, the partial summary judgment on that claim was reversed.

Paula and Richard both asserted that the district court erred in its resolution of the parties’ declaratory judgment claims regarding the management of the properties. Because the LLC Agreements are ambiguous regarding these issues, the case was remanded for further findings regarding the parties’ intent.

Paula contended that the district court erred in entering a declaratory judgment regarding (and imposing remedies for her conduct as to) an employment contract she entered into with another son, Jay Gagne, and a loan she made to one of the LLCs in which Paula signed the paperwork as both lender and borrower. Because Richard never asserted any such claims for relief, and because the parties have not argued (and the record does not show) that such claims were tried by implied consent, Paula did not have proper notice of these claims and the court erred in entering a declaratory judgment on these claims.

Richard also contended that the district court erred in denying his motion to disgorge the attorney fees that the LLCs paid on Paula’s behalf in this case. Richard’s action represented an attempt to “undo” the LLCs and distribute their assets, and Paula, acting as Chief Executive Manager of the LLCs, defended against Richard’s efforts to do so. In these circumstances, Paula’s using of LLC funds to defend against Richard’s claims was not improper.

Richard further contended that the district court erred in denying his requests for attorney fees based on the dismissal of Paula’s counterclaims. However, Richard failed to establish that he is entitled to recover fees pursuant to CRS §13-17-201 on the facts of this case. The judgment was affirmed in part, reversed in part, and vacated in part, and the case was remanded with directions.

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

Colorado Court of Appeals: Withdrawn Plea Constitutes “Conviction” of Felony Under Federal Immigration Law

The Colorado Court of Appeals issued its opinion in People v. Espino-Paez on Thursday, September 25, 2014.

Guilty Plea—Deferred Judgment—Federal Immigration Law—Residency—Crim.P. 32(d) and 35(c)—Ineffective Assistance of Counsel—Jurisdiction.

Defendant, a Mexican citizen, pleaded guilty to the use of a schedule II controlled substance. He received a deferred judgment for one year on the condition that he successfully complete drug and alcohol treatment. After he completed the treatment, the district court permitted him to withdraw the plea, and the court dismissed the case with prejudice. Defendant thereafter sought permanent residency in the United States, which was denied because a withdrawn plea in a Colorado state court constitutes “conviction” of a felony under federal immigration law. Defendant filed a post-conviction motion seeking to withdraw his plea pursuant to Crim.P. 35(c) and Crim.P. 32(d) based on ineffective assistance of counsel, which was denied.

On appeal, defendant contended that the district court erred in summarily denying his Crim.P. 35(c) motion. However, a deferred judgment is not reviewable under Crim.P. 35(c) unless it is revoked and a judgment is entered.

Defendant further contended that the district court abused its discretion in failing to consider his Crim.P. 32(d) motion to withdraw his guilty plea, and requested that the case be remanded for that purpose. Because defendant had already successfully completed his deferred judgment, the district court did not have jurisdiction to rule on defendant’s motion. The appeal challenging the order denying relief was dismissed and the order denying relief was affirmed.

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

Colorado Court of Appeals: Vehicle Need Not Move to Be “Operated” or “Driven” for DUI Purposes

The Colorado Court of Appeals issued its opinion in People v. Valdez on Thursday, September 25, 2014.

Aggravated Driving After Revocation Prohibited—Driving Under the Influence—Merger.

A witness driving in Pueblo observed a vehicle parked along the curb at an intersection. Concerned, he stopped and discovered Valdez passed out and unresponsive in the driver’s seat. He contacted law enforcement officials, who observed Valdez in a stupor with a twenty-four-ounce can of beer between his legs, and his feet near the gas and brake pedals. They also found his keys in the ignition. When they arrested Valdez, he slurred his speech and drifted in and out of consciousness. At one point, he attempted to start the vehicle, but the officers restrained him. They eventually removed him from the vehicle. At the time of the arrest, Valdez’s driver’s license had been revoked because he was a habitual traffic offender. He was convicted of aggravated driving after revocation prohibited (ADARP) and driving under the influence (DUI).

On appeal, Valdez contended that the trial court erred in denying his motions for judgment of acquittal on both charges because the prosecution failed to prove beyond a reasonable doubt that he “operated” or “drove” an “operable” motor vehicle. The term “drive” means to exercise “actual physical control” over a motor vehicle. Further, the prosecution was not required to prove the operability of the vehicle beyond a reasonable doubt. Here, although the vehicle may have been inoperable at the time the police arrived, there was sufficient evidence that Valdez drove the vehicle to the intersection before he passed out, and his action of attempting to start the vehicle when the police arrived further proved that he had physical control of the vehicle. Accordingly, the trial court did not err in denying Valdez’s motions for a judgment of acquittal, nor was it required to provide an instruction to the jury to determine, beyond a reasonable doubt, the operability of the vehicle at issue.

Valdez also argued that the trial court erred by not merging his ADARP and DUI convictions because DUI is a lesser included offense of ADARP. The law is presently unsettled on this issue. Therefore, the trial court did not commit plain error in upholding the jury’s separate convictions for Valdez’s DUI and ADARP offenses, and for imposing separate sentences for those crimes. The judgment was affirmed.

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

Colorado Court of Appeals: Defendant Need Not Be Same Race as Excused Juror to Make Batson Challenge

The Colorado Court of Appeals issued its opinion in People v. Friend on Thursday, September 25, 2014.

Child Abuse—Murder—Batson Challenge—Jurors—Challenge for Cause—Expert Testimony—Merger.

M.B., the 12-year-old daughter of defendant’s girlfriend, C.H., was declared brain dead and taken off life support after defendant physically abused her, causing her fatal injuries. A jury convicted defendant of (1) first-degree murder—victim under the age of 12, position of trust; (2) child abuse causing death; (3) child abuse causing death—pattern of conduct; (4) two counts of child abuse causing serious bodily injury; and (5) child abuse causing serious bodily injury—pattern of conduct.

On appeal, defendant contended that the trial court erred in holding that he did not have standing to assert a challenge under Batson v. Kentucky, 476 U.S. 79 (1986). Defendant made a Batson challenge when the prosecutor used a peremptory challenge to excuse Juror H, an African American. The prosecutor asserted that defendant could not make a Batson challenge because he was not African American. The trial court agreed and concluded that the challenged juror and defendant had to be of the same race. A defendant does not have to be of the same race or cognizable group as that of an excused juror to make a Batson challenge. However, the prosecution provided race-neutral grounds for excusing Juror H, and defendant did not establish purposeful discrimination. Therefore, the court did not err.

Defendant contended that the trial court should have granted his challenges for cause to two prospective jurors, Juror C and Juror W, who were later removed by peremptory challenges. Because defendant failed to demonstrate that a biased juror actually sat on the jury, the court did not err.

Defendant also contended that the trial court erred in admitting the testimony of three expert witnesses regarding injuries consistent with non-accidental trauma, as well as Detective Thrumston’s testimony recounting M.B.’s removal from life support. The Court of Appeals ruled that the trial court did not abuse its discretion nor err in admitting the testimony.

Defendant further argued that the court erred in failing to merge his convictions. Defendant is correct that the four child abuse counts must merge into one conviction because they are alternative ways of committing the offense of child abuse. The child abuse convictions, however, should not have merged into the first-degree murder conviction, because each offense contains an element not included in the other. The judgment was affirmed in part and reversed in part, and the case was remanded with directions.

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

Colorado Court of Appeals: Defense Counsel Waived Confrontation Clause Claim by Eliciting Testimonial Statements

The Colorado Court of Appeals issued its opinion in People v. Merritt on Thursday, September 25, 2014.

Confrontation Clause—Autopsy Report—Testimonial.

A hotel desk clerk found Welch’s body in the room where she had lived for about five years. Her throat had been cut and a large amount of blood was visible on her body and on the bed beneath her. Defendant, a security guard at the hotel, was charged with her death. He was found guilty of second-degree murder and was sentenced to thirty-six years in the custody of the Department of Corrections.

On appeal, defendant alleged that the court violated his rights under the Confrontation Clause by admitting an autopsy report prepared by a doctor who was not present at trial. Dr. Lear-Kaul performed an autopsy and authored a report detailing her findings and conclusions regarding the cause and manner of Welch’s death. Because Dr. Lear-Kaul was on maternity leave during the trial, her supervisor, Dr. Dobersen, testified regarding the autopsy report and the cause of death.

Given the state of the body, the nature of the crime scene, and the statutorily mandated cooperation between the coroner’s office and the district attorney’s office, it was reasonable for Dr. Lear-Kaul to assume that the report containing her findings and conclusions would be used in the eventual prosecution of a murder suspect. Therefore, the statements were testimonial. However, by asking Dr. Dobersen questions about alternative causes of death, which relied on facts contained in the autopsy report, defendant’s counsel intentionally opened the door on a particular line of questioning and effectively waived the right to confrontation. The judgment was affirmed.

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

Colorado Court of Appeals: Announcement Sheet, 9/25/2014

On Thursday, September 25, 2014, the Colorado Court of Appeals issued six published opinions and 47 unpublished opinions.

People v. Friend

People v. Merritt

People v. Valdez

People v. Espino-Paez

Gagne v. Gagne

People v. Omwanda

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: Medical Marijuana Grower Not Entitled to Bring § 1983 Action for Destruction of Plants

The Colorado Court of Appeals issued its opinion in Young v. Larimer County Sheriff’s Office on Thursday, September 11, 2014.

Medical Marijuana Amendment—42 USC § 1983—Seizure—Taking—Constitution.

Young leased property where he grew marijuana plants and distributed marijuana for medical use under the Medical Marijuana Amendment (MMA), Article XVIII, §14 of the Colorado Constitution. After obtaining search warrants, sheriff’s deputies entered Young’s property and seized forty-two marijuana plants by cutting them off just above the roots. This action killed the plants. After Young was acquitted of all charges against him, he brought this action for damages on the basis that the deputies had killed the plants seized from him. The trial court entered summary judgment against Young.

On appeal, Young argued that 42 USC § 1983 provides a remedy for state action that violates a right created by the MMA. Section 14(2)(e) of the MMA requires that medical marijuana that has been seized be returned upon acquittal of criminal charges. However, because federal law criminalizes possession of marijuana, such a claim is not cognizable under § 1983. Further, no express or implied private right of action exists under the MMA. Therefore, the trial court properly entered summary judgment on this claim.

Defendants argued that because Young’s complaint alleged a taking only under federal law (which is foreclosed by the federal criminalization of marijuana), a state law takings claim under Article II, §15 of the Colorado Constitution should not be considered. A valid seizure under criminal law does not constitute a taking for which the owner is entitled to just compensation, even if the defendant is later acquitted of the charges. Therefore, the trial court properly entered summary judgment on the state law takings claim. The judgment was affirmed.

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

Colorado Court of Appeals: Dismissal Prior to Completion of Bankruptcy Case Re-Vests Claims in Debtors

The Colorado Court of Appeals issued its opinion in Mackall v. JPMorgan Chase Bank, N.A. on Thursday, September 11, 2014.

Bankruptcy—Dismissal—Standing—Issue Preclusion—Failure to State a Claim.

Plaintiffs purchased a home and subsequently refinanced it. After the court issued a written order authorizing JPMorgan Chase Bank (Chase), the assigned lender, to sell the house, plaintiffs filed a Chapter 13 petition for bankruptcy. The bankruptcy court dismissed the bankruptcy proceeding before confirmation of a plan or discharge. Plaintiffs thereafter filed a civil complaint against Chase, alleging that Chase’s note was fraudulent and that Chase was not the proper party to enforce it. The district court granted Chase’s motion to dismiss some of plaintiffs’ claims.

On appeal, Chase contended that plaintiffs lacked standing to assert any claims against it because (1) all of the claims were actionable when plaintiffs filed for bankruptcy, and (2) plaintiffs failed to disclose the claims to the bankruptcy court. When a bankruptcy case is dismissed, the debtor is granted standing to assert any claim that it possessed before it filed for bankruptcy, regardless of whether it disclosed the claim to the bankruptcy court during the bankruptcy proceedings. Here, the dismissal of the bankruptcy petition re-vested the claims in plaintiffs, and they had standing to bring those claims against Chase after the dismissal.

Plaintiffs argued that the district court erred in dismissing some of their claims based on issue preclusion. The district court held that both the CRCP 120 order authorizing sale and the bankruptcy court order allowing Chase’s proof of claim precluded some of plaintiffs’ claims. Because the bankruptcy court ruling had preclusive effect on these issues, plaintiffs were barred from re-litigating the issues that were dismissed based on issue preclusion.

Plaintiffs also argued that the district court erred by dismissing several of their claims for failure to state a claim. Because the complaint failed to allege that Chase filed the CRCP 120 actions for any purpose other than to obtain an order authorizing sale, the district court properly dismissed plaintiffs’ abuse of process claim. Plaintiffs’ complaint failed to allege that their property was on the market for sale and, therefore, the district court properly dismissed plaintiffs’ slander of title claim. Additionally, plaintiffs claims for breach of contract, implied covenant of good faith and fair dealing, and promissory estoppel were properly dismissed because the statute of frauds barred any unwritten modification of the loan agreement. Finally, because Chase had the right to seek enforcement of the promissory note against plaintiffs, plaintiffs’ claim for intentional infliction of emotional distress failed. The judgment was affirmed.

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

Colorado Court of Appeals: Announcement Sheet, 9/18/2014

On Thursday, September 18, 2014, the Colorado Court of Appeals issued no published opinion and 16 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: Permanency for Child in D&N Proceeding More Important than Reestablishing Familial Ties

The Colorado Court of Appeals issued its opinion in People in Interest of M.D. on Thursday, September 11, 2014.

Dependency and Neglect—Foster Parents—Permanency Hearing—Compelling Reason.

The La Plata County Department of Human Services (Department) filed a petition in dependency and neglect regarding M.D. due to its concerns about the parents’ history of domestic violence and substance abuse. M.D. was placed with foster parents and, based on father’s admission to certain allegations in the petition, including that he tested positive for methamphetamine, the court adjudicated the child dependent and neglected and adopted a treatment plan for father (mother’s rights were not at issue in this case). The district court later entered judgment allocating a majority of parenting time and sole decision making authority for M.D. to the foster parents.

On appeal, father contended that the court erred in concluding that it need only find a compelling reason to allocate parental responsibility to a nonparent under the permanency hearing statute. Because CRS §19-1-115 concerns only temporary custody awards and the court’s order here was a permanent custody order, the findings under §19-1-115(6.5) were not required. Further, there was evidence in the record that the child needed permanency and that a complete transition back to father would be difficult and probably result in harm to the child.

The record also reflects that the Department made reasonable efforts to finalize permanent placement of the child and that procedural safeguards were in place to protect father’s rights. In addition, because father was not deprived of all of his parental rights, and because the trial court retained jurisdiction to modify its existing order, the trial court order relating to father’s custody and visitation rights did not require a finding of unfitness to protect his fundamental liberty interest. The record supports the court’s findings regarding several compelling reasons as to why the child could not be returned home under §19-3-702(4). Therefore, the court did not abuse it’s authority to award permanent custody to the foster parents. The judgment was affirmed.

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