June 22, 2017

Colorado Supreme Court: Felony Murder Instruction Adequately Apprised Jury of Elements of Kidnapping

The Colorado Supreme Court issued its opinion in Esquivel-Castillo v. People on Monday, January 25, 2016.

Sufficiency of an Information—Notice of Charges—Felony Murder.

Esquivel-Castillo petitioned for review of the judgment of the court of appeals affirming his conviction of felony murder. A jury acquitted him of a separate count of kidnapping, charged according to the “seized and carried” alternative way of committing that crime, but convicted him of felony murder for a death caused during his commission or attempted commission of kidnapping the same victim, during the same charged timeframe, by a different statutorily qualifying act of kidnapping. As pertinent to the issue on review in the Supreme Court, the court of appeals rejected Esquivel-Castillo’s assertion that the more specific kidnapping charge necessarily limited the scope of the more generally charged felony murder count to a charge of death caused in the course of or in furtherance of the commission of kidnapping by seizing and carrying the victim from one place to another, resulting in his having been convicted of a crime with which he had never been charged.

The Supreme Court affirmed the judgment of the court of appeals. Because one count of an information is not circumscribed by another count of that information unless the latter is incorporated in the former by clear and specific reference, the Court determined that the crime of kidnapping alleged more generally as an element of felony murder was not limited to the specific alternative act of kidnapping alleged in the separate kidnapping count. Therefore, jury instructions as to all statutory forms of kidnapping supported by the evidence did not constructively amend the felony murder charge.

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

Tenth Circuit: Juror Questionnaire, Taken in Isolation, Not Enough to Show Impermissible Bias

The Tenth Circuit Court of Appeals issued its opinion in Eizember v. Trammell on Tuesday, September 10, 2015.

When he was released from the Tulsa jail, Scott Eizember went to his ex-girlfriend’s house to exact revenge since she had alerted authorities about his violation of a protective order. He broke into a house across the street and found a shotgun. When the Cantrells, an elderly couple who lived in the house, returned home, Eizember engaged in an altercation with Mr. Cantrell where he tried to wrestle the gun from Eizember. A shot was fired during the altercation that killed Mrs. Cantrell. Eizember wrestled the gun away from Mr. Cantrell and beat him with the gun until he lost consciousness, and eventually died. Next, he headed across the street and shot Tyler Montgomery, his ex-girlfriend’s son, and beat Mr. Montgomery’s grandmother. Mr. Montgomery ran to his pickup truck to drive away but Eizember jumped into the bed of the truck. Mr. Montgomery eventually crashed the truck and ran away for help. Eizember ran the other direction and hitched a ride, but eventually shot at the other driver too.

For the next 11 days, he hid in the woods, emerging only to steal clothes and a pistol from a nearby house. He soon stole a car from outside a church and made his way out of town. When the car ran out of gas, he continued hitchhiking, and was offered a ride by Dr. Sam Peebles and his wife, whom he ordered at gunpoint to drive him to Texas. After hours in the car, Dr. Peebles was able to shoot Eizember with his own gun. Eizember wrestled the revolver away from Dr. Peebles and bludgeoned him with it, also hitting Mrs. Peebles in the head when the revolver wouldn’t fire at her. At a nearby convenience store, a clerk saw Eizember was shot and called the police. Eizember was arrested and taken to the hospital, then jail.

Eizember was eventually convicted of first-degree murder for Mr. Cantrell’s death, second-degree felony murder for Mrs. Cantrell’s death, assault and battery with a dangerous weapon for beating Montgomery’s grandmother, shooting with intent to kill for Mr. Montgomery, and first-degree burglary for breaking into the Cantrells’ home. He unsuccessfully appealed to the Oklahoma Court of Criminal Appeals (OCCA) and the U.S. Supreme Court denied certiorari. The OCCA also denied his petition for post-conviction relief, as did a federal district court, but the district court granted Eizember a Certificate of Appealability on several issues.

On appeal, Eizember argued that two jurors, D.B. and J.S., should have been excluded because they were impermissibly biased in favor of the death penalty. The Tenth Circuit, noting that both the OCCA and the federal district court rejected this claim, disagreed with Eizember. The Tenth Circuit applied a Witt standard and agreed with the OCCA that, when considered in context, D.B.’s answers did not show impermissible bias. Although the questionnaire answers pointed out by Eizember tended to show bias toward the death penalty, D.B.’s answers during voir dire showed that she could fairly consider all sentencing options. The Tenth Circuit held that the trial court did not clearly err by retaining D.B. as a juror. As for J.S., his answers tended to show less bias than D.B.’s answers, so the Tenth Circuit found no error in the trial court’s refusal to dismiss him. The dissent suggested that the OCCA did not apply the Witt standard at all in rejecting Eizember’s arguments against retaining D.B. and J.S. on the jury, therefore relying on an incorrect legal standard and necessarily mandating reversal, but the majority did not agree.

Eizember next argued that the jury was confused about the meaning of life with the possibility of parole as a sentencing option due to a prospective juror’s erroneous comment during voir dire. The Tenth Circuit disagreed, finding that the parties agreed the jurors were properly instructed on the meaning of life with the possibility of parole as a sentencing option. Eizember argued that his sentences should be vacated due to the jury’s confusion, but the Tenth Circuit again disagreed, finding that even if there had been error vacating the sentences was not the proper remedy.

Next, Eizember argued that the jury was improperly instructed on the elements of second-degree “depraved mind” murder, and the prosecution agreed. Eizember contended that because of the improper instruction, he was deprived of his federal due process rights to have the jury instructed on a non-capital alternative offense. The Tenth Circuit again disagreed, finding that although the instruction incorrectly advised the jury of the non-capital offense of “depraved mind” murder, the jury was properly instructed on felony murder, which is a non-capital offense. Eizember argued that the jury would not have been able to convict him of felony murder, but the Tenth Circuit rejected this argument as well, noting that Eizember requested the felony murder instruction. Eizember next argued that his attorney’s failure to object to the incorrect “depraved mind” instruction constituted ineffective assistance of counsel. The OCCA found that the incorrect instruction had no impact on Eizember’s rights, because it is unavailable under state law when a jury finds a killing intentional beyond a reasonable doubt, as it did in Eizember’s case.

The judgment of the district court was affirmed. Chief Judge Briscoe wrote a detailed dissent regarding D.B.’s bias in favor of the death penalty.

Tenth Circuit: Instruction Advising on Knowing and Dishonest Conduct Correctly Stated Mens Rea

The Tenth Circuit Court of Appeals issued its opinion in United States v. Sorensen on Monday, September 14, 2015.

Jerold Sorensen, an oral surgeon in California, found Financial Fortress Associates (FFA) in 2000 after an online search to develop a business plan for his dental practice. FFA offered seminars advising attendees to develop “pure trust organizations” (PTOs) in order to reduce or eliminate tax liabilities. Sorensen developed six PTOs with the help of Melissa Sugar, an attorney who spoke at the first FFA seminar Sorensen attended and opened a bank account titled “Northside Management,” which was titled in the trusts’ names. Sugar was the trustee of the trusts but Sorensen had full account privileges because he was named as Sugar’s “administrative assistant” for the trust. Sorensen retained full control over the Northside Management account. Sorensen retitled his personal residence, dental practice, and dental equipment into the trust, then had his dental practice pay the trust to “rent” his home, dental practice, and dental equipment. He deposited dental income directly into the trust and reported the rental expenses as business expenses, thereby avoiding taxes. No tax return was ever filed for the trusts, which were active from 2002 through 2008.

Soon after establishing the trusts, Sorensen approached his longtime accountant and family friend about the FFA pure trust program. Sharp researched the program and advised Sorensen that the IRS considered it a scheme, and that she could no longer provide tax services to Sorensen if he continued with the PTOs. Sorensen hired a new accountant, Wayne Paul, who was recommended by FFA, to prepare his business returns, and had his personal returns prepared by H&R Block. He never informed H&R Block about the trusts or the Northside Management account, which he explained was because they never asked.

In May 2007, an IRS special agent executed a search warrant at Sugar’s law office. By August of that year, Sorensen knew of the search but did not stop using the trust or Northside account. Sorensen later told IRS Special Agent Michelle Hagemann that although he thought he should stop using the FFA services, “he was in too deep, he couldn’t get out, and he didn’t want to pay the tax.” Also in 2007, Sorensen approached his son’s father-in-law, CPA Keith Wilcox, about the trusts. Wilcox testified that he told Sorensen the trusts were a complete sham. Wilcox prepared amended tax returns for Sorensen, but Sorensen did not file them for two more years.

Agent Hagemann sent Sorensen a certified letter in 2008 to advise him he was the subject of a criminal investigation. Sorensen refused the letter, following advice received at an FFA seminar. Later, when Agent Hagemann appeared at Sorensen’s dental offices, Sorensen refused to let her in, again following FFA advice, and sent her a public servant’s questionnaire requesting information such as her birthdate, home address, and social security number.

Sorensen’s defense theory was that he believed PTOs were completely legal. However, he admitted at trial that the payments made to the PTOs were not legitimate business deductions, and he also admitted that he underpaid his taxes by more than $1.5 million from 2002 through 2007. In November 2013, a Colorado federal grand jury indicted Sorensen, charging him with violating 26 U.S.C. § 7212(a) by corruptly endeavoring to impede administration of Internal Revenue laws.

The primary issue at trial was whether the statute required knowledge of illegality and whether Sorensen acted with such knowledge. The defense argued that Sorensen was a gullible, naive man who was unaware his conduct violated the law. Dr. Dana Cogan, a forensic psychiatrist, testified on Sorensen’s behalf that he was “law abiding” and “very naive.” Nevertheless, in 2014, the jury convicted Sorensen of corruptly endeavoring to obstruct or impede the due administration of internal revenue laws in violation of § 7212(a)’s omnibus clause. The district judge varied downward from the guidelines range and statutory maximum and sentenced Sorensen to 18 months’ imprisonment. Sorensen appealed, raising seven issues, which the Tenth Circuit addressed in turn.

Sorensen first contended that his conduct should have been charged under 26 U.S.C. §§ 7201 and 7203 because it amounted to evading taxes, and that § 7212 requires something more than tax evasion. The Tenth Circuit first noted that the government may choose what conduct to charge when the underlying conduct satisfies requirements of more than one charging statute. Because § 7212 requires that the tax evasion be done corruptly instead of willfully, the two sections address different conduct. Willfully evading taxes is the more serious crime. The Tenth Circuit noted that Sorensen used trusts created with no EIN, which prevented the IRS from tracking them and therefore obstructed and impeded the IRS from duly administering the tax code. The Tenth Circuit concluded Sorensen’s charge fit within the omnibus clause of § 7212.

Sorensen next raised three challenges to the jury instructions: (1) the district court erroneously refused to give an instruction on knowledge of illegality, (2) the court erroneously gave a deliberate ignorance instruction, and (3) the court erroneously gave an instruction that allowed the jury to convict on any one of the “means” alleged in the indictment. As to the first issue, the Tenth Circuit found the mens rea element was properly set forth in the court’s instruction, and therefore the district court did not err by denying Sorensen’s request for a separate instruction that knowledge of illegality is required. The Tenth Circuit further found that the district court’s instruction on Dr. Sorensen’s good faith belief of legality satisfied any question of whether the jury believed he had acted “knowingly and dishonestly” with regard to the trusts.

Sorensen also challenged the court’s deliberate ignorance instruction, because he denied only criminal intent, not knowledge of any fact. The Tenth Circuit found no error, noting the instruction assisted the jury in determining whether the government had proved Sorensen’s knowledge of facts bearing on the trusts’ illegality. The Tenth Circuit then addressed Sorensen’s argument that the district court erred by, sua sponte, providing an instruction that the jury must convict Sorensen based on unanimous agreement of any of the means provided in the indictment. Although the Tenth Circuit agreed that it was error for the district court to so advise the jury, the error benefited Sorensen and therefore was harmless.

Sorensen next argued the district court erred by refusing to allow him to present surrebuttal evidence. The Tenth Circuit found this decision well within the district court’s discretion, and noted that the court would have allowed the evidence during Sorensen’s case in chief but refused to allow it as surrebuttal because of a fear it would have devolved into back-and-forth accusations. Sorensen also contended the prosecution’s closing rebuttal argument misstated the evidence to mount an attack on Sorensen’s credibility. The Tenth Circuit analyzed each statement in turn. For the first instance, the Tenth Circuit found the court’s curative instruction resolved any potential error. For the next assertions of error, Sorensen failed to preserve them for appellate review, and the Tenth Circuit found that the prosecutor’s misstatements did not affect Sorensen’s substantial rights. The Tenth Circuit also held that there was no error in the district court’s failure to declare a mistrial based on the prosecutor’s improper remarks. Finally, the Tenth Circuit rejected Sorensen’s cumulative error argument, noting he failed to cite any conclusory authority to support his bare assertion of cumulative error.

The Tenth Circuit affirmed Sorensen’s conviction.

Colorado Court of Appeals: Defense Counsel Did Not Err by Refusing to Call Expert Witness who Agreed with Prosecution

The Colorado Court of Appeals issued its opinion in People v. Garner on Thursday, December 17, 2015.

First-Degree Murder—Ineffective Assistance of Counsel—Rebuttal Expert—Jury Instructions—Conflict of Interest.

Defendant was charged and found guilty of first-degree murder for stabbing a female friend to death when the two were most likely high on methamphetamine.

On appeal, defendant contended that the post-conviction court erred in denying his motion because the evidence at the post-conviction hearing established that his trial counsel was ineffective. Defense counsel was not ineffective for failing to call a rebuttal expert to testify regarding the cause of the victim’s death after defendant’s first expert changed her mind and agreed with the prosecution’s expert witnesses. Further, because the subject of hypothermia as a potential cause of death was not central to the case, defense counsel did not err in failing to call an expert on this issue. It was also reasonable for defense counsel to forgo calling a methamphetamine expert, who could cause more harm than good to defendant’s case, and to forego calling another inmate, Mr. K, when this witness had three felony convictions and two other inmates had already been used as impeachment witnesses to rebut the prosecution’s witness. It was also not a conflict of interest for defense counsel to represent defendant after previously having represented Mr. K, who was a potential witness for defendant.

Defendant also asserted that his attorney erred by not objecting to the jury instructions, which only contained a partial instruction regarding intoxication law. However, voluntary intoxication was not consistent with defendant’s theory of the case, which was that he did not kill the victim. Therefore, although defense counsel should have asked to include a complete instruction regarding intoxication law since the prosecution had introduced the instruction, it was not err in failing to do so given the theory of the case. In light of these considerations, the post-conviction court correctly determined that defendant had not shown an actual conflict of interest adversely affecting his counsel’s performance.

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

Colorado Court of Appeals: Harmless Error to Include Inconclusive DNA Test Results as Evidence

The Colorado Court of Appeals issued its opinion in People v. Marks on Thursday, December 3, 2015.

Robbery—Murder—DNA Evidence—Expert Testimony—Jury Instruction—Theory of Defense.

On January 25, 2011, two armed men forced their way into the home of S.W., a marijuana dealer, in search of money and marijuana. The robbery was interrupted by the arrival of S.W.’s husband and son. As S.W.’s husband struggled with the robber who was carrying a shotgun, the other robber fired his handgun. One of the bullets struck S.W. and killed her. Marks was charged with the crime.

On appeal, Marks contended that the trial court erred in admitting evidence of “inconclusive” and “no conclusion” DNA results without evidence of their statistical significance. The “inconclusive” DNA results were harmless because they were irrelevant and didn’t prove anything. However, the “no conclusion” testing result meant that it could be determine that a person was included as a possible contributor, but the “statistical weight” could not be provided for the result and, therefore, it did not reveal a conclusion. That left the jury with only half the necessary information: that Marks was included, or could not be excluded, as a possible contributor to the DNA on various items of evidence. Without the probability assessment, the probative value of the “no conclusion” results were substantially outweighed by the risk of unfair prejudice and misleading the jury. The district court therefore abused its discretion in admitting that evidence. Given the remaining evidence admitted at trial, however, the error was harmless.

Marks also contended that the trial court erred in refusing to give his tendered jury instruction regarding evidence that an alternate suspect, Rocha-Lovatos, committed the crime. Marks was only entitled to a theory of defense instruction, which he declined to submit. Therefore, the trial court did not err in refusing to give the tendered alternate suspect instruction.

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

Colorado Court of Appeals: Jury Instructions on Implied Warranty of Suitability Insufficient

The Colorado Court of Appeals issued its consolidated opinion in Rogers v. Forest City Stapleton, Inc. and Rogers v. Forest City Stapleton, Inc. on Thursday, November 19, 2015.

Implied Warranty of Suitability—Developer—Homeowner—Vacant Lot—Nuisance—Sanctions—Discovery Violation.

Defendants (collectively, Forest City) served as the master developer for the redevelopment of the old Stapleton International Airport. Forest City sold the vacant residential lot at issue here to a homebuilder, with which plaintiff Rogers contracted to build a home. Rogers paid the builder an extra fee to include a basement that could later be finished. After learning that his lot was not suitable for a home with a basement that could be finished, Rogers brought claims for breach of implied warranty, nuisance, and negligent misrepresentation.

On appeal, Forest City argued that the trial court erred by instructing the jury that it could find that an implied warranty runs from a developer to a homeowner under the circumstances of this case. An implied warranty of suitability exists between a developer of a vacant lot and the owner of a home on that lot who is not the first purchaser if (1) the developer improves the lot for a particular purpose, and (2) all subsequent purchasers rely on the developer’s skill or expertise in improving the lot for that particular purpose. Here, the trial court did not adequately instruct the jury on this law. Consequently, the judgment was reversed and the case was remanded for a new trial on the implied warranty claim.

Forest City also argued that the trial court erred in denying its motion for judgment notwithstanding the verdict on Rogers’s nuisance claim, arguing that there was insufficient evidence to support the nuisance verdict as a matter of law. Because the jury was instructed that Forest City placing RABC in the roads was a necessary element of the nuisance claim, and the record reveals no evidence that Forest City placed RABC, or anything else, in the roads in Stapleton, the evidence was insufficient to support the jury’s nuisance verdict. The trial court therefore erred by denying Forest City judgment notwithstanding the verdict on that claim pursuant to CRCP 59(e)(1).

Rogers argued that the trial court erred in the amount of sanctions awarded to Rogers and against Forest City’s counsel for the late disclosure of discovery documents. Because the trial court found that (1) the late disclosed documents were of “slight use” to Rogers, (2) Forest City’s counsel acted with “candor and professionalism,” and (3) the violation was an unintentional “oversight,” the trial court acted within its broad discretion by awarding only $10,000 of the $90,000 that Rogers requested.

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

Colorado Court of Appeals: Mistake in Jury Instruction Resulted in Constructive Amendment of Charge

The Colorado Court of Appeals issued its opinion in People v. Riley on Thursday, October 22, 2015.

Attempt to Influence a Public Servant—Tampering With Physical Evidence—Second-Degree Forgery—Jury Instructions—Constructive Amendment of Information—Jury Deliberations—Audio Recording.

The People charged defendant with third-degree assault and harassment for allegedly attacking his ex-wife. After the charges were filed, defendant gave his attorney a receipt from a hotel that purportedly showed that defendant was not in Colorado on the dates of the charged offenses. Because the receipt contained fraudulent information based on defendant’s alterations of it, the People charged defendant with attempt to influence a public servant, tampering with physical evidence, and second-degree forgery.

On appeal, defendant argued that the trial court erred when it instructed the jury on the uncharged offense of felony forgery rather than the charged offense of second-degree forgery (a misdemeanor). The trial court’s instruction constituted a constructive amendment of the information because it changed an essential element of the charged offense and allowed the jury to convict defendant of an uncharged crime. Further, second-degree forgery is not a lesser included offense of felony forgery. Because it is constitutionally prohibited to convict a defendant of a charge not contained in the information, defendant’s conviction for second-degree forgery was reversed.

Defendant also argued that because the trial court did not provide the jury with instructions defining the terms “attempt” and “official proceeding,” his convictions for attempt to influence a public servant and tampering with physical evidence must be reversed. The Court of Appeals disagreed. Defendant cited no authority for the proposition that the term “attempt” in CRS § 18-8-306 should be defined by reference to the entirely separate criminal attempt statute. In addition, although “official proceeding” is defined in the statute, any error was harmless because defendant failed to show that this error contributed to his conviction for tampering with physical evidence.

Defendant further argued that the trial court erred in allowing jurors unfettered access to an audio recording between the prosecutor and defendant’s ex-wife about a conversation she had with defendant. When defendant’s ex-wife testified at trial, she denied everything she had initially told the police about the attack and all the statements she had made during the recorded interview with the prosecutor. The audio recording of the interview was admitted as prior inconsistent statements, and the recording was played for the jury during her testimony. Although the trial court failed to exercise its discretion with respect to the jury’s access to the recording during deliberations, such failure did not substantially influence the verdict or affect the fairness of the trial such that reversal of defendant’s convictions was required.

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

Tenth Circuit: A Defendant Cannot be Charged with Obstruction of Justice for Failing to Report Her Crime

The Tenth Circuit Court of Appeals issued its opinion in United States v. Kupfer on Tuesday, July 7, 2015.

Elizabeth Kupfer failed to report over $790,000 in gross income for joint tax returns filed from 2004 to 2006. She was charged with three counts of tax evasion, one for each year, and the jury found her guilty on each of the three counts. She was sentenced to three years in prison. She appealed, arguing (1) the district court’s jury instruction on willfulness was insufficient because it failed to describe particular mental states that did not constitute willfulness, such as negligence, inadvertence, mistake, or accident; (2) the trial court erroneously failed to conduct a hearing based on one juror’s affidavits averring improper conduct by another juror; and (3) the district court improperly increased the offense level based on obstruction of justice for Kupfer’s failure to disclose her crime.

The Tenth Circuit first addressed the jury instructions. The district court correctly instructed the jury that willfulness was required for a finding of guilt, and that willfulness referred to “the voluntary intent to violate a known legal duty.” Kupfer argued that although the instructions were correct as far as they went, they should have gone further and elucidated conduct that does not qualify as willfulness. The Tenth Circuit disagreed. Relying on circuit precedent, the Tenth Circuit found no error in the court’s failure to instruct on what conduct is not considered willful, and found that the district court’s decision was well within its discretion.

Next the Tenth Circuit evaluated the issue of whether the district court erred in failing to conduct a hearing on the juror’s affidavits of another juror’s misconduct. The district court received affidavits from the same juror from both the defense and prosecution, and declined Kupfer’s motions for a hearing and a mistrial. The district court could have reasonably concluded that the two affidavits relayed all the information it would have gleaned from the juror in a hearing, and it was a proper exercise of the court’s discretion to decline to hold a hearing.

The Tenth Circuit then addressed Kupfer’s argument that her sentence was improperly increased. The Tenth Circuit agreed. A defendant cannot be charged with obstruction of justice for failing to report her crime. The Tenth Circuit vacated the sentence and remanded for resentencing.

The Tenth Circuit affirmed the judgments of the district court but remanded for resentencing.

Colorado Court of Appeals: Instruction on Highest Degree of Care Unnecessary in Ambulance PI Case

The Colorado Court of Appeals issued its opinion in Bedee v. American Medical Response of Colorado on Thursday, September 10, 2015.

Negligence—Jury Instruction—Highest Degree of Care.

Bedee was a member of a medical team that transported a neonate in an ambulance owned by American Medical Response of Colorado (AMR). On the return trip, Bedee rode in the back of the ambulance, which was equipped with lap belts for occupants. The ambulance allegedly hit a series of dips in the road so severe that Bedee was lifted off her seat and slammed back down causing her lower back to twist and torque. Bedee sought damages for a lower back injury, alleging the drivers were negligent because they didn’t slow down when hitting the dips.

Before trial, Bedee submitted a trial brief arguing that a jury instruction should be given that the ambulance drivers owed its passengers the highest degree of care because of their control of the ambulance and her lack of freedom of movement during the ride. AMR rebutted this, arguing that ambulances are not common carriers under a Colorado statute and therefore the higher degree of care should not apply. The trial court did not give the instruction. The jury returned a verdict in favor of AMR, finding that AMR did not act negligently or cause Bedee’s injuries. Bedee appealed, arguing it was reversible error to not give the highest standard of care instruction.

The Court of Appeals discussed the elements of a negligence action and the factors set forth under Lewis v. Buckskin Joe’s, 396 P.2d 933 (Colo. 1964),for the highest degree of care instruction. It noted these factors have only been applied in Colorado to ski lift operators and operators of amusement rides. It also noted that a trial court may instruct a jury on the highest degree of care only where “all minds concur” that a business by its very nature is “fraught with peril to the public.” In addition, if a defendant is a “common carrier,” it has the duty to exercise the highest degree of care to its passengers.

Here, the Court found no evidence of an increased degree of risk on the return ambulance trip. Just as any other driver in Colorado, there was no reason to hold the ambulance driver to a higher degree of care than that of reasonable care. To hold otherwise would to establish precedent that every driver owes a higher degree of care than reasonable care to its passengers.

The Court also rejected the argument that the ambulance was a common carrier. The Court found that most jurisdictions based this determination on their statutes. In Colorado, the statutory definition in Title 40 does not encompass ambulances, and in fact, they are specifically excluded in CRS § 40-10.1-105(1)(d). The judgment was affirmed.

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

Colorado Court of Appeals: Reversible Error to Give Duplicitous Jury Instructions

The Colorado Court of Appeals issued its opinion in Walker v. Ford Motor Co. on Thursday, September 10, 2015.

Injury—Design Defect—Automobile—Jury Instruction—Consumer Expectation Test—Evidence—Causation—Other Incidents.

In this products liability action based on strict liability and negligence, defendant Ford Motor Company (Ford) appealed the trial court’s judgment entered on a jury verdict in favor of plaintiff Walker. Walker claimed to have sustained a traumatic brain injury and soft tissue neck injuries as a result of a car accident, in part because the driver’s seat in his 1998 Ford Explorer was defectively designed.

On appeal, Ford argued that the trial court’s instruction number 19 to the jury, which discusses the “consumer expectation” test, was incorrect as a matter of law. Jury instruction number 19 complied with Colorado Jury Instruction (CJI)-Civ. 4th 14:3 (2015). However, the first sentence of CJI-Civ. 4th 14:3 misapplies Colorado law. Further, because the consumer expectation test is included in the risk-benefit test instruction that was given to the jury as instruction number 19, the trial court erred by giving a separate instruction that also included the consumer expectation test. The combined instructions allowed the jury to consider the consumer expectation test twice: once in the risk-benefit test in instruction number 18, and again in instruction number 19. The consumer expectation test is not an alternative test to the risk-benefit test, but is a sub-part of that test. Because the error was not harmless, the judgment was reversed and the case was remanded for a new trial.

Ford also contended that Walker’s defect and causation evidence was insufficient. Lewis, a biomechanical engineer and expert on injury causation, testified that, if Walker’s seat back had remained upright in the accident and the seat had had an adequate headrest, Walker would not have sustained any of his more significant injuries. Walker also presented testimony of Lewis and engineer Brown to show that an alternative design could have provided better protection than the seat in Walker’s Explorer. The jury could have concluded from Lewis’s and Brown’s testimony that an alternative design was available that could have prevented Walker’s injuries, and that the Explorer’s car seat was defectively designed. The evidence also allowed the jury to determine that the car seat was the cause of Walker’s injuries. Because there was competent evidence to support the verdict, Ford was not entitled to judgment notwithstanding the verdict.

Ford further contended that the trial court erred by permitting Walker to introduce evidence of other incidents involving Ford vehicles. Evidence of similar accidents, occurrences, or injuries may be offered to refute testimony that a given product was designed without safety hazards. Evidence of prior similar incidents is relevant to show that the manufacturer had notice of an actual or potential product defect. Here, the four vehicles in the other incidents were all Ford Explorers and all appeared to have involved the same or similar seat design as the seat in Walker’s Explorer. Though Ford points to differences in the types of accidents and injuries in those other incidents, those differences went only to the weight to be given to the evidence, and not to its admissibility. Therefore, it was not error to admit this evidence of other incidents.

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

Tenth Circuit: No Speedy Trial Act Violation Where Motions Pending During Contested Period

The Tenth Circuit Court of Appeals issued its opinion in United States v. Zar on Tuesday, June 23, 2015.

Derek Zar and his mother Susanne Zar participated in a mortgage fraud scheme orchestrated by Michael Jacoby. The three were tried together and, after a three-week trial, a jury convicted Jacoby of 11 counts of wire fraud, three counts of money laundering, and two counts of bank fraud; Derek Zar of four counts of wire fraud and one count of money laundering; and Susanne Zar of three counts of wire fraud and one count of money laundering. Each defendant was sentenced to a term of imprisonment and ordered to pay restitution. They each appealed separately, but the Tenth Circuit joined the appeals.

The Tenth Circuit first considered Derek’s and Susanne’s challenges to the district court’s denial of the Zars’ joint motion to sever their trial from Jacoby’s, their joint motion to dismiss the indictment based on Speedy Trial Act violations, and their joint motion to suppress statements made to IRS agents. Because the motion to sever and the motion to dismiss were both based on Speedy Trial Act violations, the Tenth Circuit considered those first. Noting that the Speedy Trial clock is tolled when motions are pending, the Tenth Circuit initially found that motions were pending during the entire period the Zars contest was applicable to their speedy trial rights. The Tenth Circuit analyzed the district court’s rulings and found that it did not abuse its discretion in denying the severance motion, and counted only 23 days ticked off the speedy trial clock between the indictment and the trial. The district court’s denials of the motions to dismiss and to sever were affirmed.

Next the Tenth Circuit evaluated the statements the defendants made to IRS agents. Although it was somewhat concerned that the agents did not specifically announce that their questioning of the Zars was a consensual conversation, the Tenth Circuit found no error in the district court’s allowance of the testimony. The Tenth Circuit found that the statements made by the Zars to the IRS agents were non-testimonial and not barred. Susanne Zar also argued that the admission of statements Derek Zar made to an IRS agent violated her Confrontation Clause rights as stated in Crawford v. Washington. After a plain error review, the Tenth Circuit concluded that the district court’s limiting instruction sufficiently ameliorated any harm that could have come from admission of the statements.

The three defendants jointly argued that Instruction 17 incorrectly stated the elements of wire fraud by omitting an essential element, the scheme to defraud, and by adding an element which impermissibly broadened the basis for conviction. The Tenth Circuit analyzed the instruction and found that the district court correctly applied Tenth Circuit precedent in omitting the language from the instruction. The Tenth Circuit further found that the modifications to the instruction were harmless, and if they had any effect it worked in defendants’ favor. The three defendants also asserted ineffective assistance of counsel claims, which the Tenth Circuit dismissed as unripe since they had not yet been adjudicated in district court.

The defendants also all challenged their sentences, averring the increase in base offense level was unsupported and relying on Apprendi and Alleyne. The Tenth Circuit found their reliance misplaced, since none of the defendants were subject to mandatory minimum sentences. It evaluated each defendant’s sentence and affirmed each separately.

The Tenth Circuit affirmed the district court’s rulings as to each defendant.

Colorado Court of Appeals: Rational Basis Supported Tendered Lesser Non-Included Offense Instruction

The Colorado Court of Appeals issued its opinion in People v. Naranjo on Thursday, May 7, 2015.

Felony Menacing—Lesser Non-Included Offense—Disorderly Conduct.

Defendant Naranjo was convicted of two counts of felony menacing. The victims, a father and daughter, testified at trial that as the father was merging onto the highway, Naranjo cut them off, pointed a gun at the daughter, and threatened both of them. Naranjo testified that the father was the aggressor, that he inadvertently showed his gun as he was putting it away in the glove box, and that he did not make any threats.

On appeal, Naranjo contended that the trial court reversibly erred in declining to instruct the jury on the lesser non-included offense of disorderly conduct with a deadly weapon. Although Naranjo’s asserted reason for grabbing the gun was, as the trial court put it, “perfectly benign,” a jury could nonetheless conclude that handling a weapon while traveling on a public highway supported a finding that Naranjo consciously disregarded a substantial and unjustifiable risk that the gun would be displayed to someone outside the car. Thus, the record supports a rational basis from which the jury could have convicted Naranjo of disorderly conduct with a deadly weapon and acquitted him of felony menacing. The trial court therefore erred in declining to give the lesser non-included offense instruction to the jury. Because this error was not harmless, the judgment was reversed and the case was remanded for a new trial.

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