August 17, 2019

Archives for June 27, 2011

Colorado Supreme Court Amends Criminal Procedure Rule

The Colorado Supreme Court has approved an amendment to the Colorado Rules of Criminal Procedure. The changes were made to Rule 41, dealing with Search, Seizure, and Confession, and are effective immediately.

Crim. P. 41(c)(3), Application and Issuance of a Warrant by Facsimile or Electronic Transmission, was amended to add language regarding electronic transfers of documentation and electronic signatures.

A warrant, signed affidavit, and accompanying documents may be transmitted by electronic facsimile transmission (fax) or by electronic transfer with electronic signatures to the judge, who may act upon the transmitted documents as if they were originals. A warrant affidavit may be sworn to or affirmed by administration of the oath over the telephone by the judge. The affidavit with electronic signature received by the judge or magistrate and the warrant approved by the judge or magistrate, signed with electronic signature, shall be deemed originals. The judge or magistrate shall facilitate the filing of the original affidavit and original warrant with the clerk of the court and shall take reasonable steps to prevent the tampering with the affidavit and warrant. The issuing judge or magistrate shall also forward a copy of the warrant and affidavit, with electronic signatures, to the affiant. This subsection (c)(3) does not authorize the court to issue warrants without having in its possession either a faxed copy of the signed affidavit and warrant or an electronic copy of the affidavit and warrant with electronic signatures.

Committee Comment: For purposes of this rule, the term “electronic signature” has the same meaning as used in C.R.S. § 16-1-106(4)(c).

Click here to view the Criminal Procedure rule changes in their entirety.

Click here to review the Supreme Court’s other rule changes so far in 2011.

Affected Rules:

Crim. P. 41(c)(3) – “Search, Seizure, and Confession: Application and Issuance of a Warrant by Facsimile or Electronic Transmission.”

Governor Hickenlooper Announces Appointments to the Colorado Commission on Low Income Energy Assistance

Last Friday, June 24, 2011, Governor John Hickenlooper announced his appointments to the Colorado Commission on Low Income Energy Assistance.

The Commission works through the Low Income Energy Assistance Program to collect and distribute money to eligible recipients for use in the payment of electric and gas utility bills. The members appointed are:

  • Jacinda Mari Fonseca-Hughes, of Limon, to serve as an assistance recipient; term to expire December 2, 2012.
  • Douglas Andrew Karl, of Arvada, to serve as the designee for the Governor’s Energy Office; term to expire December 2, 2012.
  • Sister Karen Bland, of Grand Junction, to serve as a public member; term to expire December 2, 2012.
  • Dr. Curtis B. Schmidt, of Littleton, to serve as an assistance recipient; term to expire on December 2, 2012.

The full press release from the Governor’s Office concerning these commission appointments can be found here.

Timothy Gordon: Arbitrator Decides Amount of Lien while Court Decides its Procedural Validity

In Sure-Shock Electric v. Diamond Lofts Venture (Colo. App. June 23, 2011), a division of the Court of Appeals held that, on confirmation of an arbitration award, the district court retains jurisdiction to decide the procedural validity of a mechanic’s lien even after the arbitration award confirms the claimant’s right to a lien under the mechanic’s lien statute.

The contract between Sure-Shock and Diamond Loft Venture (“DLV”) included an agreement to arbitrate any claim arising out of or related to the parties’ contract.  After Sure-Shock filed a lawsuit for breach of contract, unjust enrichment, and foreclosure of its mechanic’s lien, DLV moved to stay the proceedings and to compel arbitration, which was granted.

The arbitrator found in Sure-Shock’s favor, and made detailed findings of fact regarding the recording of the lien, the amount, and the date that it was recorded, and awarded Sure-Shock the principal amount of its claim plus interest at 12% (the interest rate found in the mechanic’s lien statute).  Upon motion, the district court confirmed the arbitration award, confirmed the amount of Sure-Shock’s lien, and ruled that Sure-Shock will be entitled to participate in the foreclosure of its lien.

DLV appealed, arguing that the district court did not have jurisdiction to determine the validity, amount, and enforceability of the lien.  DLV further argued that Sure-Shock failed to “affirmatively raise the argument that the lien was procedurally valid in arbitration” and was therefore barred from raising the issue.  The Court of Appeals did not agree.

The Court of Appeals notes that the amount of the lien was properly submitted to arbitration.  According to the Court, “we read the arbitrator’s award to conclude that Sure-Shock had established the right to a lien or claim under the mechanic’s lien statute.”  The Court of Appeals also notes in its opinion that “the arbitration award clearly noted the filing of the lien, the amount listed on the lien statement, and the date it was recorded . . . .”  Yet the Court of Appeals “assume[s] that Sure-Shock did not provide copies of the notice of intent and lien statement to the arbitrator” because it “ha[s] on appeal no record of the arbitration” and “because Sure-Shock does not dispute that the procedural validity issue was not arbitrated . . . .”

The Court of Appeals then went on to address “whether the procedural validity issue may be properly decided by the court as part of the foreclosure proceedings, or whether either [the parties were] required to raise it in arbitration under their agreement requiring all claims and disputes to be submitted to arbitration.”  The Court of Appeals ultimately held that the issue of procedural validity may be properly determined by the Court, but that it holds this power concurrently with the arbitrator.

We conclude that, here, the issue of procedural validity may be properly determined by the court. Given that only a court is vested with the authority to foreclose a mechanic’s lien, it may concurrently determine any procedural validity issues connected with that foreclosure even when the underlying contract includes a broad arbitration clause, at least where, as here, neither party raised the issue in arbitration.

Part of the Court’s reasoning is the fact that the in rem action to foreclose a mechanic’s lien will often involve additional parties beyond those involved in the arbitration.  And in the case at issue, there were additional owners who would be defendants to the foreclosure action who were not parties to the arbitration, and who may challenge the validity of the notice and filing of the lien.

Ed. Note: The Colorado Court of Appeals’ opinion in Sure-Shock Electric, Inc. v. Diamond Lofts Venture, LLC can be read here.

Timothy Gordon blogs at Holland & Hart’s Construction Law in Colorado and this post originally appeared here on June 23, 2011. Gordon is one of the managing editors for CBA-CLE’s Practitioner’s Guide to Colorado Construction Law. Click hereto read all posts by this author.Click here for more Construction Law Updates.

Colorado Court of Appeals: Colorado Real Estate Commission May Impose Sanction of License Revocation for Attempted Crimes as well as Convictions

The Colorado Court of Appeals issued its opinion in Colorado Real Estate Comm’n v. Bartlett on June 23, 2011.

Revocation of Real Estate License—Jurisdiction.

Respondent Alfred Bartlett appealed the final agency order of the Colorado Real Estate Commission (Commission) revoking his real estate broker’s license, on the grounds that the Commission lacked authority to impose discipline for attempted crimes and failed to properly address evidence of his rehabilitation. The order was affirmed.

An administrative law judge (ALJ) found that Bartlett communicated for several months via the Internet with an undercover detective from the Colorado Springs Police Department who was posing as a 13-year-old girl named Tiffany. After stating his desire to have sexual contact with the girl, Bartlett arranged a meeting, requesting it be kept secret from her mother. Bartlett was arrested at the agreed location, after making contact with a person he believed to be Tiffany. He pleaded guilty to attempted sexual assault on a child, a class 5 felony, and was sentenced to five years of sex offender intensive supervision probation, scheduled for completion in September 2011. Bartlett did not notify the Commission of his conviction until approximately eight months after he entered his guilty plea, despite applying for a renewal of his broker’s license in the interim.

The Commission filed a notice of charges, alleging respondent was subject to discipline based on his conviction and his failure to immediately report it. The ALJ found Bartlett guilty and, after extensive briefing and oral arguments, the Commission accepted the ALJ’s decision and revoked Bartlett’s real estate broker’s license.

On appeal, Bartlett argued that the Commission lacked subject matter jurisdiction to revoke his license, because he was convicted of an attempt and not a completed crime. Specifically, Bartlett argued that CRS §12-61-113(1)(m) empowers the Commission to impose sanctions for convictions only under the enumerated statutes, and that CRS §18-2-101, prohibiting attempts, is not on the list. The Court of Appeals rejected this argument based on the plain language of the statute.

Bartlett also argued that the Commission (1) was required to consider evidence concerning his rehabilitation; and (2) had the burden to prove the absence of rehabilitation and failed to meet that burden. The Commission agreed that it was required to consider rehabilitation evidence but disputed that it bears the burden of proof on that issue. The Court held that the Commission bears the burden of proof, but met that burden in this case.

Finally, Bartlett argued that the Commission’s sanction of revocation was arbitrary and capricious. The Court disagreed, finding clear support in the record for the Commission’s sanction.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on June 23, 2011, can be found here.

Colorado Court of Appeals: “Retirement Plan” Has a Usual and Ordinary Meaning and Is Not Limited to Plans Possessing Attributes of ERISA-Qualified or Tax-Qualified Plans

The Colorado Court of Appeals issued its opinion in Dillabaugh v. Ellerton on June 23, 2011.

Post-Judgment Collection— Employee Retirement Income Security Act (ERISA)—Exemptions From Attachment or Garnishment of a Retirement Plan.

In this post-judgment collection proceeding, plaintiff Gary Dillabaugh appealed the trial court’s order determining that an obligation of Sefton Resources, Inc. (Sefton) to defendant John Ellerton, Sefton’s Chief Executive Officer, was exempt from attachment or garnishment as property or funds payable from a retirement plan. The judgment was affirmed.

Dillabaugh obtained a judgment against Ellerton and attempted to garnish Sefton’s obligation to him. Sefton responded that it owed Ellerton a “future retirement obligation” totaling $839,832. Ellerton argued this was exempt from garnishment or attachment under CRS §13-54-102(1)(s) because it arose from a retirement plan. The exemption issue was briefed and the court ruled without a hearing that Sefton’s obligation to Ellerton was exempt as property held in or payable from a retirement plan.

On appeal, Dillabaugh argued that the trial court erred because a retirement plan must share the attributes of an ERISA-qualified plan or a tax-qualified plan, and Sefton’s obligation did not. The Court of Appeals disagreed with the narrow interpretation of the exemption, noting that the meaning of “retirement plan” under CRS §13-54-102(1)(s) has not been addressed by Colorado appellate courts. The Court found that “retirement plan” has a usual and ordinary meaning discernible by a court and is not limited to plans that possess attributes of ERISA-qualified or tax-qualified plans. The Court also held that the record supports the trial court’s conclusion that Sefton’s obligation to Ellerton was properly held in or payable from a retirement plan.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on June 23, 2011, can be found here.

Colorado Court of Appeals: No Special Prosecutor Necessary as DA’s Decision Not to Prosecute Was Not Arbitrary or Capricious; Only Law Enforcement Officers, Not Private Citizens, May Apply for an Arrest Warrant under CRS § 16-3-108

The Colorado Court of Appeals issued its opinion in Kailey v. Chambers on June 23, 2011.

Motion for Appointment of Special Prosecutor—Motion for Arrest Warrant.

Petitioner Randy Kailey appealed the district court’s order denying his motion for appointment of a special prosecutor or, in the alternative, a warrant to arrest a particular person. The order was affirmed.

In 1985, Kailey was convicted of two counts of aggravated incest involving his daughters, NJ and BK, for which he was sentenced to thirty-two years’ imprisonment. In 2004, he received information from NJ that DMB, Kailey’s former sister-in-law, had sexually assaulted both his daughters and his granddaughter, MM, while they stayed with her in Arapahoe County. He later received information that DMB had sexually assaulted BK in 2007.

In May 2009, Kailey filed documents with the Denver Police Department and the Denver District Attorney’s (DA) Office accusing DMB of sexually assaulting BK beginning in 1996 (BK was 15) and of 4-year-old MM in 2003 or 2004. The DA’s Office responded that it could not commence a criminal prosecution because the alleged crimes occurred outside the City and County of Denver and that he should contact the DA for the Eighteenth Judicial District (18th J.D.).

Kailey sent his daughters’ letters and affidavits and independent investigative reports conducted by the Colorado Innocence Project to the Englewood Police Department and to the 18th J.D. DA. Five months passed with no response. Kailey then prepared a motion for appointment of a special prosecutor under CRS §16-5-209, and the issuance of a warrant to arrest DMB under CRS §16-3-108. The district court summarily denied the motion for a special prosecutor, finding failure to meet his burden under CRS §16-5-209, and did not explicitly address the request for a warrant.

On appeal, Kailey argued that it was an abuse of discretion to not order the 18th J.D. DA to respond to his motion and initiate an investigation, and that it was error to not issue an arrest warrant. The Court of Appeals rejected both arguments.

DAs belong to the executive branch of government. CRS §16-5-209 limits the broad discretion granted DAs by providing relief in the event of an unjustifiable refusal to prosecute a person for a crime. A DA’s charging decision is afforded a presumption of correctness, and there must be a clear and convincing showing that the decision not to prosecute was arbitrary and capricious and without reasonable excuse before the court will order prosecution or the appointment of a special prosecutor. Here, the evidence in the record provides ample support that the DA’s decision not to prosecute was not arbitrary or capricious.

Kailey also argued it was error not to issue a warrant for DMB’s arrest under CRS §16-3-108. The Court held that private citizens may not apply for an arrest warrant under this statute, only law enforcement officers. Accordingly, the order was affirmed.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on June 23, 2011, can be found here.

Colorado Court of Appeals: Party Seeking to Reopen Evidence after Resting and after Motion for Directed Verdict Made Must Make Offer of Proof as to What Specific Evidence they Would Present and How it Would Cure Deficiencies

The Colorado Court of Appeals issued its opinion in Justi v. RHO Condominium Ass’n on June 23, 2011.

Directed Verdict—C.R.C.P. 60 Motion.

Plaintiff Dennis Justi appealed the judgment entered after defendant RHO Condominium Association (RHO) moved for a directed verdict under C.R.C.P. 50 and the trial court denied his motion to reopen his case. Justi also appealed the court’s order denying his C.R.C.P. 60 motion for relief from the judgment against him. The judgment and order were affirmed.

In July 2005, Justi, his brother, and a friend rented a room at the Hi Country Haus Condominiums. During their stay, Justi fell down a flight of stairs and ruptured his left quadriceps muscle. Justi sued RHO, whose primary place of business was located at Hi Country Haus. Justi asserted that RHO was liable for his injury under the Premises Liability Act (Act).

At trial, after Justi’s last witness was questioned, Justi’s counsel and the court had an exchange wherein counsel stated he wouldn’t rest but had no further witnesses. After prodding from the court, counsel rested. RHO then moved for a directed verdict under C.R.C.P. 50, arguing that Justi had presented no evidence to establish a connection between his injury and RHO, including how RHO was connected to the property at issue.

Justi responded by indicating that such evidence would come from RHO witnesses. After another colloquy with the court, Justi moved to reopen his case to present evidence from RHO witnesses to show RHO owned Hi Country Haus. Justi’s counsel stated that he had relied on defense counsel’s representations that he would call an RHO representative, and that he intended to introduce the management agreement and prove ownership at that time. RHO’s counsel denied having promised to call any witnesses. The court denied Justi’s motion to reopen the evidence and granted RHO’s motion for a directed verdict.

On appeal, Justi argued it was error to deny his motion to reopen his case. The Court of Appeals held that even if it was error, any such error was harmless. In what appeared to be a matter of first impression in Colorado, the Court held that a party seeking to reopen the evidence after he or she has rested and after a motion for a directed verdict has been made must make an offer of proof as to what specific evidence the party would present and demonstrate that this evidence would cure any deficiencies in that party’s case.

In this instance, Justi sought to reopen the evidence to prove that RHO owned the condominium in question. The Court held that such evidence would have been insufficient to save Justi’s claim under the Act, because it would not have shown that RHO did not exercise reasonable care to protect against dangers about which it knew or should have known. Thus, even if the court had allowed Justi to reopen his case to present evidence of ownership, a directed verdict still would have been proper.

Justi also argued that it was an abuse of discretion for the trial court to deny what he characterized as a motion under C.R.C.P. 60(b). The Court disagreed, noting there was no evidence that a reasonably prudent person similarly situated would have neglected to put on a prima facie case before resting. The trial court rejected the argument that defense counsel misled Justi or otherwise caused his mistake. In addition, no evidence was presented showing this was an abuse of discretion. Finally, the Court found no abuse of discretion to deny the request under C.R.C.P. 60(b)(5).

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on June 23, 2011, can be found here.

Colorado Court of Appeals: Colorado Taxpayer Status Does Not Provide Standing to Challenge Expenditure of Federal Funds for Family Planning Services

The Colorado Court of Appeals issued its opinion in Hotaling v. Hickenlooper on June 23, 2011.

Standing—Federal Funds—Colorado Taxpayer.

Plaintiff Mark Hotaling appealed the district court’s order dismissing his complaint challenging certain contracts entered into between the Colorado Department of Public Health and Environment (Department) and two entities that provide family planning services. The order was affirmed.

The U.S. Department of Health and Human Services (DHHS) provided the funds at issue here to the state through two programs: the National Breast and Cervical Cancer Early Detection Program and the nonabortion family planning services program. Pursuant to these programs, DHHS provides federal money to the Department, which must select grantees for the funds subject to federal limitations and requirements. The district court dismissed Hotaling’s complaint for lack of standing.

On appeal, Hotaling contended that the district court erred in concluding that he lacked Colorado taxpayer standing. Specifically, he argued that he had standing because he is a Colorado taxpayer and has alleged that the Department’s action to award the contracts at issue violates the Colorado Constitution. The Court of Appeals disagreed. Hotaling challenged an expenditure of federal funds—to which he has no connection as a Colorado taxpayer. Therefore, he did not suffer an injury-in-fact and lacked standing to challenge the contracts at issue.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on June 23, 2011, can be found here.

Colorado Court of Appeals: Lease for Oil Drilling Not Violated; Trial Court Erred by Not Considering Trade Usage and Commission Regulation Language Regarding the Capability of a Drilling Rig to Produce Gas

The Colorado Court of Appeals issued its opinion in Bledsoe Land Company LLLP v. Forest Oil Corp. on June 23, 2011.

Breach of Contract—Oil and Gas Lease—Contract Interpretation—Ambiguous.

In this dispute alleging breach of an oil and gas lease, defendants Forest Oil Corporation and Omimex Petroleum Inc. (collectively, Forest Oil) appealed the trial court’s judgment in favor of plaintiffs (collectively, the Bledsoes). The judgment was reversed.

The Bledsoes own a ranch in Yuma and Phillips Counties covering 60,418.79 gross surface acres and 37,771.64 net mineral acres. In September 2001, the Bledsoes entered into a lease with William H. Champion, an oil and gas landman doing business for Tipperary Oil & Gas Corporation (Tipperary). The lease granted Tipperary the right to explore and develop the minerals on the Ranch through drilling for and production and sale of oil and gas. In June 2007, the lease was assigned to Forest Oil. In July 2008, the Bledsoes filed this action, alleging that Forest Oil failed to drill a new well within 180 days of completion of a prior well and failed to continuously prosecute wells on the ranch as required by the lease. Thereafter, the court entered judgment in favor of the Bledsoes.

On appeal, Forest Oil contended that the trial court erred in its interpretation of the terms “completion” and “continuously prosecuted” as used in the lease. “Completion” has a common trade usage meaning “capable or ready to produce gas,” which the trial court disregarded in concluding that completion occurred at the time the drilling rig was released. Further, there is nothing in the lease that altered this definition. The lease also is subject to Colorado Oil and Gas Conservation Commission regulations, which state “[a] gas well shall be considered completed when the well is capable of producing gas through wellhead equipment from the ultimate producing zone after the production string has been run.” The undisputed testimony at trial established that Forest Oil did not complete Well #10-6-5-44 until it was hydraulically fractured on August 9, 2007; therefore, only 176 days passed between completion of Well #10-6-5-44 and commencement of Well #8-3-5-45. Accordingly, Forest Oil did not violate the 180-day provision of the lease. Further, because the lease defined the term “continuously prosecuted” as drilling a new well every 180 days, the trial court erred in concluding that Forest Oil breached the lease by failing to drill or rework wells on a continuous basis. Consequently, Forest Oil did not breach the lease and reversal was required.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on June 23, 2011, can be found here.

Colorado Court of Appeals: Work Release Must be Done Outside Jail; No Evidence Defendant Could Work with Disability

The Colorado Court of Appeals issued its opinion in People v. Montoya on June 23, 2011.

Probation—Work Release Program—Disability.

Defendant Michael Montoya appealed the sentence to probation imposed following his guilty plea to one count of aggravated driving after revocation prohibited. The sentence was vacated and the case was remanded.

Montoya pleaded guilty to the aggravated driving charge in exchange for a sentence to probation and the dismissal of the other charges. He entered into a plea agreement that contemplated as a condition of probation either a sentence to the Pueblo County Jail or a sentence to a work or educational release facility. The plea agreement stated that if Montoya received probation, the trial court could sentence him to the Pueblo County Jail “for not more than ninety (90) days as a condition of probation, or up to two (2) years in a work or educational release facility.”

The trial court sentenced Montoya to two years’ probation and required him to serve ten months in jail. The trial court further ordered that Montoya complete ten months in the Pueblo County Jail’s work release program and 10,000 hours of useful public service, to be performed as his employment at the jail. On appeal, Montoya contended that the trial court erred because he could be incarcerated for not more than ninety days as part of a work release program, but the trial court did not sentence him to work release. The Court of Appeals agreed.

A work release program is a correctional program allowing a prison inmate to hold a job outside a jail or prison. Thus, the trial court’s condition of probation that Montoya serve ten months in jail and perform work release at the jail is inconsistent with the definition of work release, which must be done outside jail. Accordingly, the trial court erred when it found that Montoya could engage in work release while in jail. Further, a jail sentence may not exceed ninety days for a felony, unless it is part of a work release program. Because the trial court’s imposed conditions of probation do not constitute work release, the trial court erred when it sentenced him to ten months in the Pueblo County Jail.

Montoya also contended that the trial court erred when it found that he could perform “some type of work” (10,000 hours of useful public service) in jail. The Court agreed. The record includes the two physician’s notes indicating that Montoya was unable to perform work. No evidence showed that Montoya could work, notwithstanding his disability. Thus, the trial court’s finding was clearly erroneous.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on June 23, 2011, can be found here.

Colorado Court of Appeals: Petitioner Competent when he Waived Right to Counsel and Was Not Prejudiced when Counsel Withdrew without Requesting a Competency Hearing

The Colorado Court of Appeals issued its opinion in People v. Wilson on June 23, 2011.

Mental Competency—Right to Counsel—Waiver.

Defendant appealed the order denying his Crim.P. 35(c) motion. The order was affirmed.

Defendant was charged with first-degree murder. He initially was deemed mentally incompetent to stand trial, but later was restored to competency. After being represented by counsel during most of his case, he waived his right to counsel and proceeded pro se. The jury returned guilty verdicts for first-degree murder and a crime of violence sentence enhancer.

On appeal, defendant contended that he was entitled to an evidentiary hearing to present evidence that he was mentally incompetent to waive his right to counsel. In accordance with Crim.P. 35(c)(3)(VII), a court must deny any claim that could have been presented in an appeal previously brought. Here, on direct appeal, defendant could have, but did not, seek review of the trial court’s conclusion that he was competent to stand trial and to waive his right to counsel, and that he had knowingly and intelligently waived his right to counsel. Further, defendant was represented by counsel on his direct appeal, the record contained all of the relevant information regarding this issue, and defendant was represented by attorneys for most of his case. Therefore, the court properly denied this portion of defendant’s motion.

Defendant also contended that the post-conviction court failed to consider and apply Indiana v. Edwards, 554 U.S. 164 (2008), which recognizes a difference between mental competency to stand trial and mental competency to represent oneself at trial, and that he was not mentally competent to represent himself at trial under the Edwards standard. The Supreme Court in Edwards held that the Constitution merely permits a state to force representation on a defendant who falls within this “gray area.” Edwards did not hold that the Constitution requires such a result. The Constitution requires only that the standards of competency set forth in Dusky v. United States, 362 U.S. 402 (1960), be met. Therefore, defendant was not entitled to a hearing with this heightened standard.

Defendant further contended that his counsel were ineffective because they withdrew without first requesting a competency hearing for him. Even if counsel erred in failing to request a competency evaluation before they withdrew in 2003, defendant was not prejudiced, because the record reveals that he was competent when he waived his right to counsel. Accordingly, the post-conviction court properly denied this claim without a hearing; therefore, the failure of the court to address the ineffective assistance claim was harmless.

Defendant further contended that he was entitled to new counsel on appeal because he disagreed with the choice of issues raised by his attorney. Counsel’s tactical decision regarding which issues to assert on appeal was reasonable. Further, many of the issues defendant wished to raise were or could have been raised and resolved in his direct appeal; thus, they would have been successive in this proceeding. Accordingly, defendant had no well-founded belief that his attorney could not or would not completely represent him in this matter.

Regarding defendant’s request to represent himself, the Court of Appeals held that a criminal defendant has no constitutional right to self-representation when appealing an adverse decision in a collateral attack on his conviction. The order was affirmed and the motion was denied.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on June 23, 2011, can be found here.

Colorado Court of Appeals: Prosecutor’s Closing Argument Referencing Typical “Stages” Experienced by Trauma Victims Not Supported by Testimony and Severely Affected the Fairness of the Trial

The Colorado Court of Appeals issued its opinion in People v. Davis on June 23, 2011.

Sexual Assault—Closing Argument—Prosecutorial Misconduct.

Defendant appealed the judgment of conviction entered on a jury verdict finding him guilty of sexual assault. He also appealed his sentence. The judgment was reversed and the case was remanded for a new trial.

Defendant contended that his conviction should be reversed because of prosecutorial misconduct in closing argument. The prosecutor described the “stages” typically experienced by trauma victims in his closing argument to bolster the victim’s credibility. No expert or lay testimony was admitted regarding experiences of trauma victims or any stages they endure. Because the prosecutor’s closing argument was not wholly rooted in the evidence presented at trial, this argument was improper. Further, the prosecutor’s improper conduct severely affected the fairness of the trial. The judgment and sentence were reversed and the case was remanded for a new trial.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on June 23, 2011, can be found here.