April 20, 2014

Tenth Circuit: Court May Work to Clarify Ambiguous Initial Verdict at Trial Before Sentencing Occurs; Asking Jury to Deliberate Further Is Not Coercive

The Tenth Circuit Court of Appeals published its opinion in United States v. Shippley on Tuesday, August 14, 2012.

The Tenth Circuit affirmed the district court’s decision. Petitioner served as the “Sergeant at Arms” for a chapter of the Mongols Motorcycle Club, and his job was to ensure members were armed and ready for confrontations with rival gangs. “After a massive nationwide investigation and ‘take down’ of the club in 2008, [Petitioner] found himself facing a federal drug conspiracy charge. His chief accuser . . . a former club president, longtime felon, and sometimes federal informant, testified at trial that [Petitioner] was responsible for supplying considerable amounts of high quality cocaine for resale to retail customers.”

At the end of trial, the jury returned a general verdict finding [Petitioner] guilty of the conspiracy charge. “But in response to the court’s special interrogatories, the jury indicated that [Petitioner] had not conspired to distribute any of the drugs listed in the indictment. In effect, the jury both convicted and acquitted [Petitioner] of the charged conspiracy.” The district court ordered the jury to deliberate further, and those further deliberations quickly yielded an unambiguous guilty verdict.

Petitioner argues the district court erred and should have entered a verdict of acquittal and that the district court coerced the jury, violating his Fifth Amendment right to due process and his Sixth Amendment right to a jury trial. The Court disagreed. A district court may work to clarify an ambiguous initial verdict at trial, long before any sentencing occurs, which is what the court did. The district court did not later interpret this ambiguity against Petitioner at sentencing. Additionally, merely asking a jury to deliberate further is not inherently coercive after the jury has reached a definitive if inconsistent verdict.

http://www.ca10.uscourts.gov/opinions/11/11-1076.pdf

Tenth Circuit: Error to Instruct Jury that Former Employer Bore Heightened Burden of Proof in Establishing Entitlement to FLSA Exemption

The Tenth Circuit Court of Appeals published its opinion in Lederman v. Frontier Fire Protection, Inc. on Wednesday, July 11, 2012.

The Tenth Circuit reversed and remanded the district court’s decision. Respondent sued his former employer, Petitioner, to recover overtime pay he alleged was owed to him under the Fair Labor Standards Act (FLSA). A jury found Petitioner liable and awarded Respondent $17,440.86 in damages. Petitioner challenges the jury instructions issued by the district court. The Court found that the district court should not have instructed the jury that Petitioner bore a heightened burden of proof in establishing its entitlement to an FLSA exemption, the instruction was prejudicial errors, and therefore reversed and remanded.

Colorado Court of Appeals: Evidence Sufficient to Sustain Convictions for Leaving Scene of Accident but Double Jeopardy Violated

The Colorado Court of Appeals issued its decision in People v. Arzabala on June 21, 2012.

Vehicular Assault—Leaving the Scene of an Accident—Evidence—Double Jeopardy—Unit of Prosecution—Jury Instructions—Prosecutorial Misconduct—Testimony.

Defendant appealed the judgment of conviction entered on jury verdicts finding him guilty of two counts of vehicular assault (reckless); two counts of leaving the scene of an accident; two counts of providing alcohol to a minor; and one count of aggravated driving after revocation prohibited (ADARP)—leaving the scene of an accident. The judgment was affirmed, the sentence was vacated, and the case was remanded.

Defendant was driving with two female passengers, K.E. and O.C., both of whom were 18 years old at the time. All three were drinking alcohol, which defendant had bought earlier that night. Defendant struck a car driven by K.P., who had been parked on the right side of the road and was attempting to make a U-turn at the time of the collision. K.P. and her passenger, E.P., were seriously injured. K.E. also hit her head and suffered minor injuries, but neither defendant nor O.C. was injured.

On appeal, defendant contended that the evidence was insufficient to sustain his convictions for leaving the scene of an accident and for ADARP—leaving the scene of an accident. Although there was conflicting testimony at trial, the prosecution presented sufficient evidence that defendant left the scene after failing to provide his driver’s license and registration to the officers at the scene.

Defendant also contended that his two convictions for leaving the scene of an accident violated constitutional protections against double jeopardy. Here, defendant was charged with two counts of leaving the scene of an accident with serious bodily injury. One count corresponded to defendant’s leaving the scene of the accident resulting in serious bodily injury to K.P.; the other count corresponded to his leaving the scene of the same accident resulting in serious bodily injury to E.P. Thereafter, the trial court imposed two sentences of three years each corresponding to defendant’s two convictions for leaving the scene of an accident, to be served concurrently and concurrently with defendant’s five-year sentence for vehicular assault (reckless) against K.P. The unit of prosecution for the offense of leaving the scene of an accident, however, is the number of accident scenes, not the number of victims involved in any one accident. Therefore, defendant’s two convictions for leaving the scene of an accident violated his right to be free from double jeopardy. The case was remanded to the trial court with directions to merge defendant’s two convictions for leaving the scene of an accident into one; to vacate the sentence imposed as to one of the convictions; and to correct the mittimus accordingly.

Defendant also contended that the trial court reversibly erred by giving the jury two instructions that allegedly lessened the prosecution’s burden of proof and misled the jury in violation of his constitutional rights. The Court of Appeals disagreed. The jury instructions correctly instructed the jury on the elements of vehicular assault (reckless) and vehicular assault (DUI) and the proper culpable mental state necessary for a conviction for these charges.

Defendant contended that the prosecution twice committed misconduct during closing and rebuttal closing argument by misstating the law and the evidence. The prosecutor’s arguments, however, did not misstate the law and any references to incorrect facts were harmless.

The Court also rejected defendant’s contention that the trial court erred by admitting the testimony of K.P.’s mother. The trial court did not abuse its discretion in admitting this testimony to show K.P.’s lack of injuries before the accident.

Defendant also argued that the trial court committed plain error by admitting his unredacted driving record into evidence. The driving record was relevant to show defendant had knowledge of his license revocation as a habitual offender under ADARP. Therefore, the trial court did not err by admitting the driving record.

Defendant further argued that the court erred by permitting the prosecution to elicit testimony from K.E. that she, defendant, and O.C. were en route to smoke marijuana at the time of the accident. K.E.’s testimony was relevant and admissible as res gestae evidence because it provided the fact finder with a fuller and more complete understanding of the surrounding events and context on the night of the accident. Therefore, there was no error in the admission of K.E.’s testimony.

Summary and full case available here.

Tenth Circuit: Jury Properly Instructed that Burden of Proving Affirmative Defense Rested on Defendant and that Jury Could Infer Defendant’s Associates Knew Vehicle Was Stolen

The Tenth Circuit Court of Appeals published its opinion in United States v. Burks on Tuesday, May 29, 2012.

The Tenth Circuit affirmed the district court’s conviction. Petitioner “provided codes to an auto-theft ring that were used to create working keys for specific vehicles. One such vehicle—an Escalade—was stolen in Nevada, stripped to its frame, and subsequently discovered and auctioned by authorities. Several months later, the same Escalade, now reassembled, was identified in Utah. Based on this discovery, [Petitioner] was charged and convicted of aiding and abetting the possession and transportation of a stolen vehicle . . . . On appeal, [Petitioner] argues that the jury was improperly instructed on the affirmative defense of withdrawal and was allowed to make an improper inference that [Petitioner's] associates knew the vehicle was stolen.”

The Court disagreed with Petitioner’s contentions. “First, assuming that withdrawal is an affirmative defense to a conviction premised on accomplice liability, [the Court held] that the jury was properly instructed that the burden of proving the defense rested on[Petitioner]. Second, [the Court held] that the jury was properly instructed that it could infer that [Petitioner’s] associates knew the vehicle was stolen.” The Court also rejected Petitioner’s claims “that there was insufficient evidence to support his conviction and that the district court erred in its restitution order.”

Colorado Court of Appeals: No Error for Trial Court to Allow Jury Instruction or Testimony on Noneconomic Damages

The Colorado Court of Appeals issued its opinion in Hendricks v. Allied Waste Transportation, Inc. on May 24, 2012.

Negligence—Noneconomic Damages—Subject Matter Jurisdiction—Administrative Remedies—Jury Instructions—Costs.

In this negligence action, defendant Allied Waste Transportation, Inc. (Allied) appealed a jury verdict awarding plaintiffs Paul and Linda Hendricks $160,100 in damages. The judgment was affirmed.

While driving an Allied garbage truck, an Allied employee backed into the corner of the Hendrickses’ house in the City of Englewood (City). After Allied admitted liability, the trial focused on the amount of damages. The Hendrickses’ expert testified that because the damage could not be repaired due to structural deficiencies, the damaged portion of the home would need to be torn down and rebuilt.

Allied contended that the trial court lacked subject matter jurisdiction because the Hendrickses failed to exhaust their administrative remedies by failing to complete the building permit application process before the damages trial. However, the Hendrickses’ complaint did not seek review of an administrative action, and the building permit process does not provide a remedy for the Hendrickses’ injury. Accordingly, the Hendrickses were not required to exhaust administrative remedies before seeking judicial review.

Allied also contended that the trial court erred by providing jury instructions that misstated the law about noneconomic damages and by admitting testimony about noneconomic damages. The trial court instructed the jury that recoverable damages included “damages and losses suffered by the plaintiffs as a result of the defendant’s conduct, including loss of enjoyment, annoyance, discomfort, and inconvenience,” which are not emotional distress damages. Therefore, the jury was properly instructed on noneconomic damages.

Allied next contended that the trial court erred by permitting Mrs. Hendricks to testify about “pure emotional damages.” Mrs. Hendricks testified that she was “dismayed” and “distraught” by the damage to her property, which are recoverable components of noneconomic damages. Therefore, the trial court did not err in admitting her testimony.

Allied further contended that the trial court was required to grant its request for a hearing on the reasonableness of the Hendrickses’ bill of costs. The Hendrickses’ bill of costs included costs that were statutorily allowed or otherwise subject to a fixed standard, as well as costs for expert witnesses that cannot be validated by statute or a fixed standard. The trial court did not abuse its discretion in denying the request for a hearing on costs where Allied did not specify which costs it contested and offered no reason for its challenge other than a bare statement that the costs were unreasonable.

Allied also argued that the trial court erred by awarding the Hendrickses prejudgment interest from the date their property was damaged. Because the jury returned a general verdict form that did not apportion damages, the trial court appropriately awarded prejudgment interest from the date the Hendrickses’ house initially was damaged, which also is when any noneconomic damages began accruing.

Summary and full case available here.

Colorado Court of Appeals: Multiple Errors in Trial Court for Consolidated Workers’ Compensation/Medical Malpractice Actions

The Colorado Court of Appeals issued its opinion in Schuessler v. Wolter on May 24, 2012.

Medical Malpractice—Workers’ Compensation Benefits—Jury Instruction—Negligence—Exclusion of Expert—Fair Debatability—Economic and Noneconomic Damages—Designated Nonparty—Comparative Fault—Prejudgment Interest—Subrogation Rights.

In these bad-faith cases, defendants James Wolter, MD and Pinnacol Assurance appealed the judgments entered on jury verdicts in favor of plaintiff Michael Schuessler, who cross-appealed certain trial court rulings. The judgment against Dr. Wolter was reversed and the case was remanded for a new trial as to him. The judgment against Pinnacol was affirmed in part and reversed in part, and the case was remanded for further proceedings.

Schuessler was injured on the job and filed a workers’ compensation claim with R. Merrill, Inc. (Merrill), his putative employer. Pinnacol, which provided workers’ compensation insurance coverage for Merrill, denied the claim. Dr. Wolter, a neurosurgeon, performed surgery on Schuessler for his injuries. The surgery caused damage to his spinal cord. Schuessler commenced a medical malpractice action against Dr. Wolter. Schuessler also filed a common law bad-faith breach of insurance contract action against Pinnacol, contending that it had wrongly denied him workers’ compensation benefits. The cases were consolidated, and a jury awarded damages to Schuessler against Pinnacol and Dr. Wolter.

On appeal, Dr. Wolter contended that the trial court erred in rejecting its proposed jury instruction, arguing that a physician does not guarantee or promise a successful outcome simply by treating or agreeing to treat a patient, and an unsuccessful outcome does not, by itself, mean the physician was negligent. Dr. Wolter’s expert specifically stated that the outcome could occur without negligence. Because the proffered instruction accurately stated the law and no other instruction informed the jury that Dr. Wolter could not be held liable merely because of a bad outcome, it was reversible error for the court to reject it.

Pinnacol asserted that the trial court erred in denying its motion for directed verdict or judgment notwithstanding the verdict. The defense of fair debatability is not in itself a complete defense to a bad-faith claim. Here, the reasonableness of Pinnacol’s conduct was disputed, and a reasonable person could reach the same conclusion as the jury. Accordingly, the trial court did not err in denying the motion.

Pinnacol also argued that the jury awarded excessive and duplicative economic and noneconomic damages to Schuessler, warranting a new trial. However, there was sufficient evidence in the record to support the award of economic damages. Additionally, there was support on record for the noneconomic damages award, and the amount awarded was not so grossly and manifestly excessive as to indicate that it was based on passion or prejudice.

Pinnacol further contended that the damages award was affected by the trial court’s erroneous failure to admit an exhibit it tendered at trial. Pinnacol’s exhibit depicted the amount and duration of its payments to Schuessler in chart form. Because the information contained in the exhibit was covered by other evidence introduced, the trial court abused its discretion in rejecting the exhibit.

Pinnacol asserted that the jury awarded duplicative damages because it awarded Schuessler the same amount of noneconomic damages that it awarded against Dr. Wolter. However, Pinnacol failed to overcome the presumptions that the jury followed the instruction not to award duplicative damages.

Pinnacol contended that the trial court erred in allowing Schuessler’s bad-faith insurance expert to testify at trial. There is no per se requirement that an expert should be excluded unless he or she has adjusted a workers’ compensation claim in Colorado, and Schuessler’s expert was otherwise qualified as an expert. Therefore, the court did not err in allowing this expert’s testimony.

Pinnacol asserted that the trial court erred in rejecting its tendered instruction concerning the liability of a designated nonparty. Pinnacol designated Merrill a nonparty at fault, but Pinnacol failed to establish that Merrill, as Schuessler’s employer, had a legal duty to Schuessler to maintain and immediately produce employment records such that a violation of that duty would give rise to a claim against it by Schuessler.

Pinnacol argued that the trial court erroneously rejected its instruction on the comparative fault of Schuessler. Pinnacol’s assertions that Schuessler was comparatively at fault because he asked for a postponement of the workers’ compensation hearing, failed to attend an appointment with a second doctor, and initially delayed several weeks before going to the doctor after the injury were insufficient to warrant an instruction.

Pinnacol asserted that the trial court’s award of costs should be reversed or reduced. The award of fees, which should be attributable only to the case against Dr. Wolter, should not be assessed against Pinnacol. The case was remanded to reverse this portion of the cost award.

Pinnacol also contended that the trial court improperly awarded prejudgment interest. Because Schuessler’s economic damages did not result from a personal injury inflicted by Pinnacol, the case was remanded for the court to properly compute the prejudgment interest on Schuessler’s economic damages based on the wrongful withholding statute, CRS § 5-12-102(1)(a).

Pinnacol argued that the trial court improperly ruled that it had waived its right to make a subrogation claim against Schuessler’s recovery from Wolter. Waiver is the intentional relinquishment of a known right. Here, Pinnacol did not waive its subrogation rights. Accordingly, on remand, Pinnacol may assert its subrogation rights.

Summary and full case available here.

Colorado Court of Appeals: Harmless Error to Mention Defense Attorney’s Gender During Closing Arguments in Sex Assault Cases

The Colorado Court of Appeals issued its opinion in People v. Garcia on May 10, 2012.

Sexual Assault—Prosecutorial Misconduct—Closing Argument—Motion to Sever—Insufficient Evidence—Sentence Enhancer—Jury Instructions.

Defendant Jamie Garcia appealed the judgments and sentences entered on jury verdicts convicting him of three counts of sexual assault (victim incapable of appraising); three counts of sexual assault (victim physically helpless); second-degree burglary; and third-degree assault. The Court of Appeals affirmed the judgment in part and vacated it in part, and remanded the case for resentencing and correction of the two mittimuses.

Between October 2002 and January 2004, five women alleged that Garcia committed sexual misconduct against them while they were intoxicated or drugged. The joinder of cases and the consolidation of offenses against separate victims in a single trial were a basis for this appeal.

Garcia contended that the prosecutor committed misconduct twice during closing argument. Although a prosecutor may not argue that a defendant in a sexual assault case unfairly seeks to bolster his case by using his female attorney to blame the female victims for the defendant’s conduct, such argument was not reversible error in this case. Additionally, although the prosecutor implied that the jury could consider Garcia’s propensity for committing sexual misconduct based on the other acts evidence, any error was harmless, because the court properly instructed the jury not to consider the evidence of one charge as propensity evidence for the other charges.

Garcia claimed that the trial court abused its discretion in denying his motion to sever the charges into separate trials under Crim.P. 14. He did not show, however, that he was prejudiced by the trial court’s refusal to sever charges.

Garcia also claimed that insufficient evidence supported the jury’s finding that he was guilty of a sentence enhancer for his conviction of assault against J.M. However, based on J.M.’s testimony, there was sufficient evidence for the jury to find that J.M. did not know or expect that taking the pill defendant gave her would render her unconscious and disoriented.

Garcia contended that the trial court committed plain error in instructing the jury on the charges of sexual assault. The Court determined that the instruction closely tracked the language of the statute and mirrored the pattern jury instruction; therefore, the trial court did not commit plain error.

Garcia further contended that the trial court erred in sentencing him because (1) the mittimus incorrectly reflected that he was convicted of the CRS § 18-3-402(4)(d) sentence enhancer; and (2) his two sexual assault convictions for the victims V.J., B.J.W., and J.M. were based on identical acts and offenses and should have merged. Garcia’s convictions of sexual assault (victim incapable) against V.J. and B.J.W. were vacated because they were not based on distinct acts and therefore merge with his convictions for sexual assault (victim physically helpless), class 3 felonies. In contrast, the record established that Garcia sexually penetrated J.M. on two occasions while she was nearly unconscious. Because the record supported two distinct acts against J.M., the Court affirmed Garcia’s two related convictions of sexual assault.

Summary and full case available here.

Colorado Court of Appeals: Habitual Criminal Charges Are Sentence Enhancers, Not Offenses; Not Subject to Speedy Trial Deadline

The Colorado Court of Appeals issued its opinion in People v. Green on April 26, 2012.

Trespass—Jury Instruction—Possessory Rights—Habitual Criminal Charges—Speedy Trial—Extended Proportionality Review.

Defendant appealed the judgment of conviction entered on a jury verdict finding him guilty of first-degree criminal trespass. He also appealed his sentence on that conviction and his adjudication and sentencing as a habitual criminal. The judgment and sentence were affirmed.

Defendant traveled from Colorado Springs to Denver to visit the victim, with whom he had an intimate relationship. After spending several hours at the victim’s house, defendant and D.H., a friend of the victim, accompanied the victim to the restaurant where she worked. While there, defendant and the victim had a physical altercation, after which the victim told defendantnever to talk to her again. Defendant left the restaurant. Later, D.H. also left the restaurant and went to the victim’s house.

After the victim returned home from work, she drove D.H. to his girlfriend’s house. She returned to her house around 3:45 a.m. After she undressed, defendant emerged from her living room and approached her, asking to talk to her. She told him to get out of her house and called 911. After defendant left, the victim discovered that the window screen in her son’s bedroom had been broken.

The People charged defendant with second-degree burglary, first-degree criminal trespass, third-degree assault, unlawful sexual contact, criminal mischief, harassment, and three habitual criminal counts. The People later added a criminal impersonation count, to which defendant pleaded guilty before trial. A jury found defendant guilty of first-degree criminal trespass, but acquitted him of the other charges. After several hearings, the district court adjudicated defendant a habitual criminal and sentenced him to twelve years in the custody of the Department of Corrections for the trespass conviction, plus two years mandatory parole, and six years in prison for the criminal impersonation conviction, to be served concurrently with the twelve-year sentence.

On appeal, defendant contended that the district court erred by twice refusing to give a jury instruction saying that a person who has possessory rights in or occupies a premises may authorize another person to enter. Because there was no evidence that D.H. had let the defendant into the victim’s house, the district court did not err by refusing to give the requested instruction. Furthermore, the instructions given by the court adequately explained to the jury that if defendant had been invited into the house, he could not be guilty of unlawful entry.

Defendant also contended that the district court erred by failing to dismiss the habitual criminal charges because the court set the first habitual criminal hearing beyond his speedy trial deadline. Habitual criminal charges are sentence enhancers and not offenses. Therefore, they are not subject to the speedy trial deadline set forth in CRS §18-1-405(1), and the district court did not err by refusing to dismiss the habitual criminal charges. Further, the district court’s sentencing of defendant did not violate his constitutional right to a speedy trial and defendant was not entitled to a jury trial on the habitual criminal charges.

Defendant further contended that the district court erred by failing to conduct an extended proportionality review of his sentence. The court need only conduct an extended proportionality review when the abbreviated proportionality review gives rise to an inference of gross disproportionality. Defendant’s three prior felonies were a 1997 Texas conviction for indecency with a child, and two Texas convictions for failure to register as a sex offender (predicated on the indecency conviction). Sexual offenses committed against children are considered grave or serious in Colorado. The district court also properly concluded that defendant’s trespass conviction was grave or serious, given the circumstances of the trespass. For this reason and because defendant had not raised an inference of gross disproportionality, the court did not err by failing to sentence him to twelve years on this class 5 felony or to conduct an extended proportionality review of his sentence.

Summary and full case available here.

Colorado Court of Appeals: Evidence Sufficient to Support Aggravated Robbery; Proposed Jury Instruction Properly Denied

The Colorado Court of Appeals issued its opinion in People v. Oslund on April 12, 2012.

Felony Murder—Aggravated Robbery.

Defendant appealed the judgment of conviction entered on jury verdicts finding him guilty of reckless manslaughter, first-degree felony murder, and aggravated robbery. The judgment was affirmed.

On September 4, 2009, defendant, his brother, and five others, including Matthew Maez, spent the evening drinking at a party. After becoming severely intoxicated, Maez left the house to ride home with a friend. The friend went back in the house and came out with one of the hosts. They didn’t see Maez, so they waited for him near the car.

The host heard noises coming from defendant’s car nearby. As she reached the car, Maez jumped out, knocked her down, dropped a stereo faceplate and other items, and ran away. The host, who was not able to see that it was Maez, screamed, and defendant and his brother ran out of the house. She told them which way the man had fled, and the two men set out to find him.

Approximately fifteen minutes later, defendant and his brother returned and announced it was Maez who had broken into his car and that he had punched Maez when he refused to return his property.Defendant had blood on his hand and was holding a stick.

Defendant’s brother returned with property he took from Maez, including the items from defendant’s car. (At trial, the prosecution introduced evidence that defendant’s brother also had taken Maez’s wallet and watch.)

Maez was found and taken to the emergency room by friends.The emergency room doctor diagnosed Maez with blunt force trauma to his head and eventually confirmed he was bleeding into his brain. Maez later died from his injuries.

Defendant was arrested in Nebraska about a month later. The jury found him guilty of reckless manslaughter, first-degree felony murder, and aggravated robbery. He was sentenced to life in prison without parole.

On appeal, defendant argued the evidence was insufficient to prove aggravated robbery because there was no evidence he acted with the intent, if resisted, to kill, maim, or wound Maez; therefore, his felony murder conviction must be reversed. The Court of Appeals disagreed. The prosecution, under CRS § 18-4-302(1)(c), was required to prove beyond a reasonable doubt that during the robbery or immediate flight, defendant had the intent “if resistance [was] offered, to kill, maim, or wound the person robbed or any other person.”

It was undisputed that defendant caught and punched Maez and that Maez suffered blunt force trauma to his head. The forensic pathology expert testified that if the injuries were caused by a fist alone, the fist would have been broken or severely injured. Defendant’s hands were not broken or injured. Five witnesses testified that defendant returned with a stick, and that the stick and defendant’s hands were bloody. Witnesses also testified that personal property belonging to Maez was missing when he arrived at the hospital.

Defendant argued that a reasonable juror could not convict him because there was no evidence that (1) defendant knew Maez’s identity when he set out after him; (2) the injuries on his hands were consistent with Maez’s injuries; and (3) defendant started the chase with a stick or weapon. The Court found that such evidence was not necessary to prove aggravated robbery and that the appropriate weight of any evidence, absent or present, was an issue for the jury. Reviewing the record as a whole, and in the light most favorable to the prosecution, the Court concluded there was sufficient evidence to enable a reasonable juror to find, beyond a reasonable doubt, that defendant intended to wound, maim, or kill Maez.

Defendant also asked for a jury instruction on defense of property, which the trial court denied. The Court analyzed this as requiring evidence in the record that defendant used force to prevent what he reasonably believed to be an attempt by Maez to commit theft. The Court agreed with the trial court that any assault in this case occurred after the theft had been accomplished. Defendant could not have been acting to prevent the theft. Rather, he was acting in response to what had already occurred; he was trying to apprehend the thief and recover the property. Therefore, it was not error not to give the instruction. The judgment was affirmed.

Summary and full case available here.

Colorado Court of Appeals: C.R.S. 16-8-107(3)(b) Does Not Violate Separation of Powers Doctrine with Insanity Defense and Is Therefore Constitutional

The Colorado Court of Appeals issued its opinion in People v. Bondurant on March 29, 2012.

Murder—Burglary—Expert Testimony—Mental Condition—Separation of Powers Doctrine—Constitutional—Self-Incrimination—Due Process—Effective Assistance of Counsel—Jury Instructions—Extraneous Information.

Defendant Jason William Bondurant appealed the trial court’s judgment of conviction entered on jury verdicts finding him guilty of first-degree murder after deliberation, second-degree murder, first-degree felony murder, first-degree burglary, false imprisonment, theft, two counts of menacing, and four counts of child abuse. The judgment was affirmed.

At trial, Bondurant admitted to fatally shooting the two victims, but denied that he could be convicted of the various charges because he lacked the culpable mental state. Bondurant contended that the trial court erred in ordering him to undergo a psychiatric examination pursuant to CRS §16-8-106 after he proposed to introduce expert testimony on his mental condition, because the statutory scheme is unconstitutional. The statute, although affecting the procedure of the courts, also concerns the public policy of full disclosure in criminal cases involving a defense based on a defendant’s mental condition. Additionally, there is not a substantial conflict between the requirements of Crim.P. 11(e) and 16 (II)(b), and CRS § 16-8-107(3)(b). Accordingly, because CRS § 16-8-107(3)(b) does not violate the separation of powers doctrine, the trial court did not err in applying it.

Bondurant also contended that CRS § 16-8-107(3)(b) and relevant portions of CRS §§ 16-8-103.6 and -106 are unconstitutionally vague, both facially and as applied to him. The term “mental condition” and “cooperate” are not incomprehensible as claimed by Bondurant. Therefore, these arguments failed.

Bondurant also maintained that CRS §§ 16-8-103.6(2), -106(2)(c) and (3)(b)–(c), and -107(1.5)(a) and (3)(b) violate a defendant’s constitutional privilege against self-incrimination. However, these statutes limit the admission of information obtained in court-ordered examinations to the issues of mental condition and insanity that defendants themselves have raised. Therefore, they do not violate defendant’s constitutional privilege against self-incrimination here.

Bondurant contended that, taken together, CRS §§ 16-8-103.6(2), -106(2)(c) and (3)(b)–(c), and -107(1.5)(a) and (3)(b) violate a defendant’s constitutional right to due process and effective assistance of counsel. The court did not preclude this line of defense, but only required defendant to comply with the statute if he chose to pursue it.

Bondurant contended that there was insufficient evidence to support a finding beyond a reasonable doubt that he had unlawfully entered or remained in the Hawkinses’ home, an element material to his conviction of first-degree burglary and felony murder. Bondurant was not invited to the birthday party taking place at the home on the date of the charged offenses. Bondurant entered the house unexpectedly and with a gun in hand. Based on this evidence, the jury could reasonably infer that Bondurant did not have permission from the Hawkinses to enter their property on the date of the charged offenses.

Bondurant also contended that the trial court erred in refusing to give the jury the supplemental instructions he tendered concerning the elements of intent and trespass for the burglary charge. Defendant’s proposed instructions were duplicative, and the tendered jury instructions were adequate and not an abuse of discretion.

Bondurant further argued that the trial court committed reversible error by addressing separate allegations made by him at trial, so that the jury was, or may have been, improperly exposed to extraneous information. The Court of Appeals ruled that the trial court did not err in disregarding a news story not relevant to this case, and determined that the jury did not learn any prejudicial information in a brief exchange of comments with a court staff member in an elevator ride.

Summary and full case available here.

Tenth Circuit: Damages for Retaliatory Discharge After Workers’ Compensation Claims Reduced; All Other Aspects of Judgment Against Employer Upheld

The Tenth Circuit Court of Appeals issued its decision in Jones v. United Parcel Service, Inc., on March 5, 2012.

Plaintiff Keith Jones (Jones), a United Parcel Service (UPS) package car driver, suffered work-related injuries, filed workers’ compensation claims, and received benefits. Jones’s physician and the UPS physician disagreed about whether Jones was able to return to work without restrictions. Under their collective bargaining agreement, if the UPS doctor and the employee’s doctor disagreed, the parties had to select a third doctor “whose decision [would] be final and binding.” The third doctor, whose review was limited by UPS, concluded Jones could not perform the essential functions of his job. UPS therefore terminated Jones.

Jones filed a state law retaliatory discharge claim and UPS removed the case to federal court. A jury awarded Jones over $2.5 million in actual and punitive damages. UPS appealed. On appeal, UPS alleged that:

(1)    It was entitled to judgment as a matter of law on Jones’s retaliation claim. Upon de novo review, the Court found the evidence presented supported a reasonable inference in support of Jones’s retaliation claim. Affirmed.

(2)    The district court erred in giving two improper jury instructions. The Court concluded that, although not a model of clarity, the jury instructions were not improper. Affirmed.

(3)    It was entitled to judgment as a matter of law on Jones’s claim for punitive damages. Based on the evidence presented, UPS is not entitled to judgment as a matter of law on Jones’s claim for punitive damages because enough evidence was presented to establish ratification of UPS’s conduct “by a person expressly empowered to do so on behalf of the . . . employer.” Kan. Stat. Ann. § 60-3702(d)(1). Affirmed.

(4)    The district court erred in allowing the jury to decide the amount of punitive damages. The Court concluded that the district court did not err in instructing the jury to determine the amount of punitive damages, relying on Federal Rule of Civil Procedure 38 rather than Kansas law. A federal district court sitting in diversity applies federal procedural law and state substantive law. Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 427, 428 n.7 (1996). Affirmed.

(5)    The jury’s award of $2 million in punitive damages violated its federal due process rights. “[T]he Due Process Clause of the Fourteenth Amendment prohibits the imposition of grossly excessive or arbitrary punishments on a tortfeasor.” Hardman v. City of Albuquerque, 377 F.3d 1106, 1121 (10th Cir. 2004). Whether an award is grossly excessive or arbitrary is based on “(1) the degree of reprehensibility of the defendant’s action; (2) the disparity between the actual harm suffered by the plaintiff and the punitive damage award; and (3) the difference between the punitive damage award and the civil penalties authorized or imposed in comparable cases.” Id. The Court concluded that the jury’s $2 million punitive damage award was excessive and violated UPS’s federal due process rights. Reversed and remanded on this limited issue for the district court to enter a punitive damage award equal to the compensatory damage award.

Colorado Court of Appeals: Affirmative Defense of Constitutional Right to Bear Arms Should Have Been Relayed in Jury Instruction

The Colorado Court of Appeals issued its opinion in People v. Carbajal on March 1, 2012.

Possession of a Weapon by a Previous Offender—Right to Bear Arms—Jury Instruction—Threat of Imminent Harm—Affirmative Defense.

Defendant appealed the judgment of conviction entered on jury verdicts finding him guilty of two counts of possession of a weapon by a previous offender (POWPO). The judgment of conviction was reversed and the case was remanded for a new trial.

Defendant argued that the trial court committed reversible error when it rejected his tender of the stock jury instruction regarding his affirmative defense to the POWPO charges and instead used a version provided by the prosecution, which added language concerning a reasonable belief of a threat of imminent harm. In 1876, Colorado adopted a Constitution that included a provision in its Bill of Rights establishing a right to keep and bear arms in defense of one’s home, person, and property. During the 20th century, the Colorado General Assembly enacted a statute making it unlawful for a previous offender to possess weapons.

The Colorado Supreme Court held that a defendant may raise an affirmative defense to a POWPO charge under Colo. Const. art. II, § 13, by presenting competent evidence that his or her purpose in possessing weapons was defense of home, person, and property, which language was included in the stock jury instruction proposed by defendant. Because the modified jury instruction allowed the prosecution to defeat the affirmative defense by showing that defendant did not reasonably believe in a “threat of imminent harm,” the burden of proof regarding defendant’s purpose in possessing weapons was impermissibly lowered. Because the trial court erred in modifying the stock instruction to include a “threat of imminent harm” requirement, and the modified affirmative defense instruction impacted defendant’s substantial rights, the error was not harmless.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on March 1, 2012, can be found here.