October 19, 2017

Colorado Supreme Court: Prospective Juror’s Silence Properly Construed as Rehabilitation

The Colorado Supreme Court issued its opinion in People v. Clemens on Monday, September 11, 2017.

Juror Rehabilitation—Voir Dire—Silence.

In this case, the Colorado Supreme Court considered whether a prospective juror’s silence in response to rehabilitative questioning constitutes evidence sufficient to support a trial court’s conclusion that the juror has been rehabilitated. The court concluded that it does when, in light of the totality of the circumstances, the context of that silence indicates that the juror will render an impartial verdict according to the law and the evidence submitted to the jury at the trial. The court further concluded that, applying this test, the trial court did not abuse its discretion in denying defense counsel’s challenges for cause. Accordingly, the judgment of the court of appeals was reversed.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Trial Court Did Not Err in Refusing to Poll Jurors about Prejudicial News Report

The Colorado Supreme Court issued its opinion in People v. Jacobson on Monday, April 24, 2017.

Criminal Law—Jury Prejudice—Jury Polling— Prejudicial News Reports.

The Colorado Supreme Court determined whether a trial court abused its discretion by refusing to poll the jury about whether jurors had seen a prejudicial news report that had aired the night before and was available online. Because the trial court gave repeated, specific admonitions to jurors to avoid “newscasts” and “newspaper sites” (including on the day of the newscast), and these were the only places on which the prejudicial report was available, the court held that the trial court did not abuse its discretion when it refused to poll jurors. Therefore, the supreme court reversed the court of appeals’ judgment and affirmed defendant’s conviction.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Trial Court’s Repeated Admonitions to Jury about News Reports Presumably Heeded

The Colorado Supreme Court issued its opinion in People v. Larsen on Monday, April 24, 2017.

Criminal Law—Jury Prejudice—Jury Polling—Prejudicial News Reports.

In this case, a companion to People v. Jacobson, 2017 CO 28, the Supreme Court determined whether a trial court abused its discretion by refusing to poll the jury about whether jurors had seen a news report about the case that had been posted online and ran in a local newspaper. Here, the trial court gave repeated admonitions not to seek out news about the case, including just before the newspaper released the story. Thus, the trial court did not abuse its discretion by refusing to poll the jury. Therefore, the Supreme Court reversed the Court of Appeals’ judgment and affirmed defendant’s conviction.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Erroneous Denial of Challenge for Cause Does Not Require Automatic Reversal

The Colorado Supreme Court issued its opinion in Newman, LLC v. Roberts on Monday, February 8, 2016.

Civil Law—Jury—Overruling Challenges to Jurors—Harmless Error— CRCP 61—Stare Decisis.

The Supreme Court held that allowing a civil litigant fewer peremptory challenges than authorized, or than available to and exercised by the opposing party, does not by itself require automatic reversal. Instead, the reviewing court must determine whether the error substantially influenced the outcome of the case in accordance with C.R.C.P. 61. This conclusion follows from People v. Novotny, 2014 CO 18, in which the Court determined that the automatic reversal rule in the criminal context rested on the assumption that impairment of the ability to shape the jury through peremptory challenges affected a “substantial right” and thus warranted automatic reversal. This same assumption undergirds the Court’s parallel rule in the civil context, but, as it held in Novotny, subsequent developments in the law concerning harmless error analysis and the significance of the right to shape the jury have invalidated that assumption. As such, the Court rejected the automatic reversal rule in the civil context and overruled prior decisions to the contrary. See Blades v. DaFoe, 704 P.2d 317 (Colo. 1985); Safeway Stores, Inc. v. Langdon, 532 P.2d 337 (Colo. 1975); and Denver City Tramway Co. v. Kennedy, 117 P. 167 (Colo. 1911).

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

Colorado Court of Appeals: Jury Should Have Been Polled to Assess Impact of Prejudicial News Article

The Colorado Court of Appeals issued its opinion in People v. Larsen on Thursday, November 5, 2015.

Juvenile—Sexual Assault—Jury—Poll—Prejudicial—News Article—Cross-Examination.

Victims A.H. and K.H. moved to Colorado with their mother S.L. to live with S.L.’s father, defendant. After learning that K.H. was sexually abused previously, defendant put K.H. in therapy. A.H. and K.H. thereafter accused defendant of touching them inappropriately. The jury convicted defendant of both charges involving the sexual assault of A.H., and he was sentenced to eight years to life in prison.

On appeal, defendant asserted that the court erred by declining to poll the jurors to ask whether they were exposed to an allegedly prejudicial news article released midtrial. The prejudicial information contained in the news article was not part of the evidence at trial, and there was a reasonable probability that the jury was exposed to the article. Accordingly, the trial court abused its discretion by not polling the jury and such error was not harmless beyond a reasonable doubt. The judgment of conviction was reversed and the case was remanded for a new trial.

Defendant also argued that the trial court denied his right to confront multiple witnesses by excluding evidence of the Department of Human Services’ attempt to remove the victims from S.L.’s custody. However, because there was record evidence that the Department sought to take custody of S.L.’s children, the court did not abuse its discretion when it limited the cross-examination of witnesses by barring questions about the Department’s attempt to remove the victims from S.L.’s custody.

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

Colorado Court of Appeals: District Court Erred in Denying Requested Jury Trial

The Colorado Court of Appeals issued its opinion in Roalstad v. City of Lafayette on Thursday, October 8, 2015.

Right to a Jury Trial in Municipal Court—CRS § 16-10-109.

Roalstad was charged with violating Lafayette Municipal Ordinance 25-85, “Vicious animals prohibited,” when her dog allegedly bit the wife of the city’s manager of finance. She entered a not guilty plea and requested a jury trial pursuant to CRS § 16-10-109. The municipal court denied her request and her subsequent request for reconsideration.

Roalstad then filed a complaint in district court for declaratory and injunctive relieve pursuant to CRCP 106(a)(4) and 65, asserting that the municipal court erred as a matter of law in denying her a jury trial request. The city moved to dismiss under CRCP 12(b)(5), arguing that the offense is not a petty offense under CRS § 16-10-109 and that she has no Sixth Amendment right to a jury trial. The district court granted the motion to dismiss, and Roalstad appealed.

CRS § 16-10-109 expressly pertains to jury trials for petty offenses. The issue before the Court of Appeals was whether the ordinance at issue was a petty offense. The vicious animal ordinance carries a possible fine of either at least $250 or at least $500, both of which fall under the definition of petty offense in CRS § 16-10-109(1). The Court of Appeals noted that the alleged offense was not a crime at common law, which are excluded from the petty offense definition.

The Court then analyzed whether the alleged offense fell under the exception for a “municipal charter, municipal ordinance, or county ordinance offense which is neither criminal nor punishable by imprisonment under any counterpart state statute.” Roalstad argued and the Court agreed that CRS § 18-9-204.5, “unlawful ownership of a dangerous dog,” is a state statutory counterpart of Lafayette Rev. Mun. Code §§ 25-85 and 25-89. The Court also found that § 25-85 and its sentencing provision were criminal in nature. It therefore explicitly rejected the city’s argument that its Code had “decriminalized” the vicious animal ordinance. Accordingly, the district court’s order granting the city’s motion to dismiss was reversed and the case was remanded with directions to enter judgment for Roalstad on her claim for declaratory relief.

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

Colorado Court of Appeals: Jurors Appropriately Allowed Unfettered Access to Video of Defendant’s Voluntary and Admissible Confession During Deliberations

The Colorado Court of Appeals issued its opinion in People v. Gingles on Thursday, December 4, 2014.

Jury—Evidence—Videotaped Admission—Deliberations—Jury Instructions—Invited Error—Vehicular Eluding—Double Jeopardy—Separate Volitional Acts.

Defendant fled from police in a stolen vehicle. After that vehicle broke down, he pushed a driver out of another vehicle and fled in that vehicle. A jury found defendant guilty, as charged, of second-degree kidnapping, one count of aggravated motor vehicle theft, and two counts of vehicular eluding. The jury also found him guilty of robbery and third-degree assault, as lesser-included offenses of his other charges.

On appeal, defendant contended that the trial court erred in permitting the jury to have unfettered access to the video recording of his confession. Jurors are allowed unrestricted access during deliberations to a defendant’s voluntary and otherwise admissible confession. Therefore, the court did not err.

Defendant also contended that the trial court erroneously instructed the jury that he could be convicted of robbery based on the use of force, threats, or intimidation “against any person” rather than against the innocent driver specifically. Because defense counsel proposed the instruction, the invited error doctrine bars defendant’s challenge to it on appeal. The case was remanded with instructions to correct the mittimus to reflect that defendant was convicted of robbery, not aggravated robbery.

Defendant further contented that his two convictions for vehicular eluding were imposed in violation of constitutional double jeopardy guarantees. Defendant committed two different volitional acts directed at two different officers at different times. Therefore, the evidence was sufficient to support two separate convictions of vehicular eluding. The judgments were affirmed and the case was remanded with directions.

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

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

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

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

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

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

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

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

Colorado Court of Appeals: Trial Court Impermissibly Usurped Jury’s Role in Finding Facts

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

Civil Protection Order—Domestic Violence—Sixth Amendment—Habitual Offender—Jury.

A.K. received a civil protection order against defendant after he attacked her while she was holding her infant son. The orderprevented defendant from contacting A.K. directly or through a third person except by use of text message. After defendant sent A.K. a letter addressed to their minor son through a fellow inmate at the county jail where he was in custody, he was charged with violation of the protection order, a class 1 misdemeanor, and a habitual domestic violence offender sentence enhancer (HDVO statute), a class 5 felony.

The jury convicted defendant of the charged misdemeanor. Thereafter, the court held a trial on the habitual charge. First, the court determined that the violation of the protection order was an act of domestic violence. Second, the court concluded that the prosecution had proved that defendant had previously been convicted three times of domestic-violence-related crimes. Pursuant to the HDVO statute, the trial court convicted defendant of a class 5 felony and sentenced him to thirty months in the custody of the Department of Corrections.

On appeal, defendant argued that the trial court violated his Sixth Amendment right to a jury trial. “The Sixth and Fourteenth Amendments to the United States Constitution require that any fact that increases the penalty for a crime beyond the statutory maximum, except the fact of a prior conviction, must be submitted to a jury and proven beyond a reasonable doubt.” Here, because the trial court and not the jury found the facts necessary to sentence defendant as a habitual offender, it violated his Sixth Amendment rights. Accordingly, the judgment of conviction was reversed and the case was remanded to the trial court for entry of judgment of conviction and resentencing on a class 1 extraordinary risk misdemeanor.

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

Colorado Court of Appeals: Error to Allow Jury Unfettered Access to Videotaped Interview of Child Sexual Assault Victim

The Colorado Court of Appeals issued its opinion in People v. Jefferson on Thursday, June 19, 2014.

Sexual Assault on a Child by one in a Position of Trust—Videotape—Evidence—Jury Deliberations.

Defendant was a friend of L.T., a mother of two small children. In 2008 and 2009, he watched the children four times, including two overnights, without their mother being present. On one of the overnights, he allegedly sexually assaulted J.B., L.T.’s 5-year-old daughter. A jury found defendant guilty of sexual assault on a child and sexual assault on a child by one in position of trust.

On appeal, defendant contended that the trial court abused its discretion when it gave the jury during deliberations unrestricted and unsupervised access to the videotaped forensic interview of J.B. The trial court admitted the videotaped interview as child hearsay under CRS § 13-25-129. However, the trial court abused its discretion in allowing the jury unfettered access to the statements during deliberations. During her live testimony during trial, almost two years after the alleged assaults, J.B. was unable to remember many details about what had happened between her and defendant. Thus, J.B.’s credibility was the main issue at trial, and the video, which was taken a day after J.B. first reported the assaults to her mother, filled in the gaps of her testimony. Furthermore, the court gave no limiting instruction regarding the jury’s use of the video. These errors created grave doubt as to the error’s effect on the verdict or the fairness of the trial proceedings. Therefore, defendant’s convictions were reversed and the case was remanded for a new trial.

Summary and full case available here.

Colorado Supreme Court: Defendant’s Challenge of Waiver of Right to Jury Trial in Post-Conviction Proceeding

The Colorado Supreme Court issued its opinion in People v. Walker on Monday, February 3, 2014.

Right to Jury Trial Waiver—Crim.P. 23(a)(5)(II).

In this criminal case, the Supreme Court considered whether defendant Marshall Walker validly waived his right to a jury trial following a trial court advisement that failed to substantially comply with Crim.P. 23(a)(5)(II). The Court held that a defendant may not litigate the validity of such a waiver on direct appeal but must do so in a post-conviction proceeding. The Court further held that, when evaluating a defendant’s waiver of the right to a jury trial, the post-conviction court must determine whether the defendant waived that right knowingly, voluntarily, and intelligently. Finally, the Court affirmed Walker’s indeterminate sentences.

Because the court of appeals should not have reviewed Walker’s challenge regarding the validity of his waiver of the right to a jury trial, the Court vacated its ruling regarding Walker’s challenge to the validity of his jury trial waiver. The Court otherwise upheld the court of appeals’ judgment of conviction. Walker may challenge the validity of his waiver (and its effect on his sentences) in a post-conviction proceeding.

Summary and full case available here.

Colorado Court of Appeals: C.R.C.P. 6(b) Does Not Govern Time Limit for Payment of Jury Fee

The Colorado Court of Appeals issued its opinion in Premier Members Federal Credit Union v. Block on Thursday, August 29, 2013.

Fraud—Indemnification—Employer—Jury Trial—Jury Fee—Enlargement of Time—CRCP 6(b)—Vicariously Liable.

Defendant Darrell Einspahr appealed the judgment entered after a bench trial on the fraud claim of plaintiff Premier Members Federal Credit Union (Premier). He also appealed the court’s dismissal of his cross-claim that sought indemnification from Broadway Automotive Group, Inc., doing business as Quality Mitsubishi, Inc., and its owner Henry Block (collectively, Quality). The Court of Appeals affirmed.

Einspahr was the manager of the special finance department of Quality’s car dealership. He and another employee in the department recommended high-risk buyers for car loans from Premier. The fraud claim was based on their conduct of “power booking,” in which they artificially inflated the values of vehicles (which would create a better loan-to-value ratio) to induce Premier to approve the car loans.

On appeal, Einspahr contended that the trial court erred when it denied his request for a jury trial on the basis that he had failed to timely pay his jury fee. CRCP 6(b), which governs enlargements of time, does not apply to the statutory deadline for payment of jury fees. Einspahr’s failure to pay the jury fee at the time of filing of the jury demand constituted his waiver of a jury trial. Therefore, the court did not have discretion to grant defendant’s request for a jury trial on a showing of excusable neglect for his untimely payment of a jury fee, and properly denied Einspahr’s request for a jury trial.

Einspahr also contended that, following the bench trial, the court erroneously dismissed his cross-claim for indemnification against Quality, despite finding that Quality was vicariously liable for Einsphahr’s fraudulent “power booking.” An employee-tortfeasor is barred from seeking indemnification from his or her vicariously liable employer when, as here, that employee knew he or she was engaging in wrongful conduct. Based on the court’s findings that Einspahr knew he was engaging in a wrongful act, Einspahr was not an “innocent agent.” Accordingly, he had no right to seek indemnification from Quality.

Summary and full case available here.