August 19, 2019

Archives for September 4, 2012

Colorado Court of Appeals: Animal Protection Act Authorizes Court to Permanently Prohibit Abusive Cattle Owners from Future Ownership of Livestock

The Colorado Court of Appeals issued its decision in Stulp, Colorado Commissioner of Agriculture v. Schuman on August 30, 2012.

Animal Protection Act—Permanent Injunction From Owning Livestock—Due Process.

In this action under the Animal Protection Act, defendants Dean Schuman and Schuman Cattle, LLC appealed the permanent injunction entered against them by plaintiff John Stulp, the Colorado Commissioner of Agriculture (Commissioner), enjoining defendants from owning, managing, controlling, or otherwise possessing livestock in Logan County. The order was affirmed.

The Colorado Department of Agriculture Bureau of Animal Protection (CDA) inspected defendants’ property after receiving complaints of dead cattle on the ranch. The court found that defendants were not fit to provide for the health and well-being of the cattle they owned. The court ordered the Commissioner to seize all cattle from defendants’ ranch and sell them at auction, and permanently enjoined defendants from owning, managing, controlling, or otherwise possessing livestock in Logan County.

Defendants contended the trial court exceeded its authority by permanently enjoining them from owning, managing, controlling, or possessing livestock in Logan County. The Court of Appeals disagreed. Defendants were starving the cattle to death and failing to treat any injured or sick cattle. They expressed no remorse, took no responsibility for past acts or omissions, and offered no evidence of rehabilitation. The Act authorized the trial court to permanently enjoin defendants from future ownership of livestock to enforce compliance with its provisions.

Defendants also contended that the permanent injunction violates the Due Process Clause of the U.S. Constitution and article II, § 3 of the Colorado Constitution. The rights to own animals and conduct a livestock business are not unlimited and can be abrogated in appropriate circumstances. Under the circumstances presented here, including the overwhelming evidence of defendants’ unwillingness to conform to accepted methods of animal husbandry, it was not a constitutional violation for the trial court to permanently enjoin defendants from owning livestock.

Summary and full case available here.

Colorado Court of Appeals: Fourth Amendment Exclusionary Rule Does Not Apply to Driver’s License Revocation Hearings; No Right to Challenge Validity of Initial Police Contact

The Colorado Court of Appeals issued its decision in Hanson v. Colorado Dep’t of Revenue, Motor Vehicle Division on August 30, 2012.

Driving Under the Influence of Alcohol—Driver’s License Revocation—Express Consent Statute—Subpoena—Fourth Amendment—Exclusionary Rule.

Petitioner Andrew Hanson appealed the district court’s judgment affirming the administrative order entered by respondent, the Colorado Department of Revenue (Department), revoking Hanson’s driver’s license for one year. The judgment was affirmed.

After a citizen’s report of erratic driving, the police apprehended Hanson at his home and transported him to the hospital, where Hanson refused testing under the express consent statute. Despite the deputy’s failure to appear at the revocation hearing in response to a subpoena served on him, the hearing officer quashed the subpoena and sustained the revocation.

On appeal, Hanson contended that the revocation order should be reversed because the hearing officer erroneously denied him the opportunity to cross-examine the deputy about the circumstances surrounding his entry into the residence. The Fourth Amendment exclusionary rule does not apply to revocation hearings. Therefore, Hanson’s Fourth Amendment claim fails. Further, because Hanson had no right to challenge the validity of the initial police contact, the hearing officer did not err in concluding that the deputy’s proposed testimony was unnecessary. Thus, Hanson was not deprived of his statutory right to cross-examine the deputy.

Summary and full case available here.

Colorado Court of Appeals: Nonparent Lacked Standing under CRS 14-10-123 to Petition for Parental Responsibilities

The Colorado Court of Appeals issued its decision in In re the Parental Responsibilities of D.T., and Concerning Lavattiata on August 30, 2012.

Allocation of Parental Responsibilities—Nonparent—CRS § 14-10-123(1)(c).

Crystal Lavattiata appealed from the judgment dismissing her petition for parental responsibilities for D.T., who is the child of Christina Trujillo (mother). The judgment was affirmed and the case was remanded.

Mother and Lavattiata became acquainted when mother was a teenager and she attended school with Lavattiata’s children. After mother gave birth to D.T. in 2003, she moved into Lavattiata’s home, and Lavattiata assisted her in caring for the child. Although mother moved out of Lavattiata’s home when D.T. was 6 months old, Lavattiata continued to assist mother with D.T.’s care until 2010, when mother ended Lavattiata’s time with him. Lavattiata subsequently petitioned for an allocation of parental responsibilities. The trial court concluded that Lavattiata did not have standing under CRS § 14-10-123(1)(c) and dismissed Lavattiata’s petition.

On appeal, Lavattiata contended the trial court erred by dismissing her petition for parental responsibilities. A nonparent can attain standing under CRS § 14-10-123(1)(c) if the nonparent has had the physical care of the child for six months or more and commences an action seeking parental responsibilities within six months of the termination of such care. Here, mother at all times acted as D.T.’s parent and directed his care. Lavattiata functioned in a grandmother-like role to D.T. and provided care for D.T. at mother’s direction and under her supervision. Mother remained in control of D.T.’s care by continuously monitoring and directing Lavattiata’s actions with D.T., and then terminating Lavattiata’s care of the child when Lavattiata refused to follow her directions. Thus, the trial court did not err in concluding that Lavattiata lacked standing under CRS § 14-10-123(1)(c). The judgment was affirmed, and the case was remanded to the trial court for determination of mother’s appellate attorney fee request under CSR § 14-10-119.

Summary and full case available here.

Colorado Court of Appeals: Prosecution Does Not Have to Disprove Defendant’s Affirmative Defense of Duress to Prove Defendant Committed Attempted Aggravated Robbery

The Colorado Court of Appeals issued its decision in People v. Doubleday on August 30, 2012.

Felony Murder—Attempted Aggravated Robbery—Predicate Offense—Special Interrogatory—Duress—Second-Degree Murder—Challenge for Cause—Prosecutorial Misconduct.

Defendant appealed from the judgment of conviction entered on jury verdicts finding him guilty of first-degree felony murder and second-degree murder. The judgment was affirmed and the case was remanded.

Defendant shot and killed a clerk at a convenience store in December 2006. The jury found defendant not guilty of attempted aggravated robbery based on duress, and guilty of second-degree murder and felony murder.

Defendant contended that his felony murder conviction must be vacated because the jury acquitted him of attempted aggravated robbery, the predicate offense for the felony murder charge. The predicate offense element of felony murder requires proof beyond a reasonable doubt that the defendant committed or attempted to commit the predicate offense, and not that the defendant was convicted of the predicate offense. Here, the prosecution met the burden of proving that defendant committed the predicate offense—attempted aggravated robbery. Additionally, the prosecution does not have to disprove defendant’s affirmative defense of duress to prove that defendant committed attempted aggravated robbery. The jury’s verdict convicting defendant for felony murder was affirmed.

Defendant also argued that the trial court violated CRE 606(b) by giving a special interrogatory. The special interrogatory instructed the jurors to complete it only if they found defendant not guilty of the predicate offense; thus, it did not usurp the jury’s duty to deliver a general verdict. Additionally, the special interrogatory was necessary to ensure the validity of a guilty verdict on the felony murder charge. Further, the jury received and completed the special interrogatory before it announced its verdict; thus, it was not a “post-verdict statement.” Therefore, the trial court properly exercised its discretion by giving the special interrogatory relating to the attempted aggravated robbery charge.

Defendant further contended that the trial court erred by failing to instruct the jury that duress is a defense to felony murder and second-degree murder. Felony murder is a class 1 felony, and CRS § 18-1-708 provides that duress is not a defense to class 1 felonies. Thus, duress is not a defense to felony murder. Further, defendant entered the convenience store alone and there was no evidence that any threats motivated defendant to shoot the clerk. Therefore, there was no evidence to support a duress instruction on the second-degree murder charge. Accordingly, the trial court did not err by refusing to instruct the jury that duress was a defense to either felony murder or second-degree murder.

Defendant contended that the trial court erred by denying his challenge for cause to a potential juror because she consistently expressed doubt about her ability to be fair and impartial. Although the juror expressed some doubt about her ability to be fair and impartial and said that she might be biased against defendant, she also repeatedly said that she thought she could perform her duties and that she hoped she would be able to keep an open mind while hearing the evidence. Therefore, the trial court did not abuse its discretion in denying defendant’s challenge for cause.

Defendant also argued that the prosecution committed prosecutorial misconduct. However, the prosecutor’s voir dire statements on reasonable doubt did not lessen the prosecution’s burden; the prosecutor did not misstate the law; and the prosecution did not ask the jurors to disregard the presumption of innocence. Therefore, there were no grounds for reversal.

Summary and full case available here.

Running Past Our Limits (Part 6 of 6)

[If you haven’t read Parts 1-5, you need to go back and do it. They’re short, and you’ll be glad you did.]

A week later, I ran another marathon. I didn’t plan to do it. I just woke up in a mood, checked in with Coach, got the nod, and did it. My time was 2:35:58 – 16 minutes faster than the week before. I missed the world record for a man my age by a minute and 35 seconds. Even if I had counted the time off the machine, refilling my water bottle and working to get the feeling back in my feet, I still would have come in under the original 3 hour goal I’d had for the week before.

Funny, the first time, when I shared my marathon story with family and friends, everybody got all inspired. This time, it was no big deal. Oh, Kevin/Dad ran another marathon. I wonder what’s for dinner.

A couple weeks later, I hit my goal of 12 miles in 60 minutes – the goal I’d set eight months ago and given up on four months later. Again, when I woke up that day, I just knew it was time. I checked in with Coach, and he was good with it. When I finished, I plopped down on the bench in the locker room, drenched in sweat, internally celebrating. I took off my shoes, and then… there was Coach’s gentle voice. “Think you could do five more?”

By now, I’ve learned that Coach only asks me to do what he knows I can do, even if I don’t agree. We set a pace goal of 5:15 for the five miles. It was tough going, and I did them at 5:35 – one of the first times in a long time I hadn’t hit a goal, but still worth feeling good about. Again I headed to the locker room, and when I reached for the combination lock on my locker, the voice came again. “Think you could do two more?” I didn’t bother to spin the lock. “I’ll do three,” I said, and headed back out. My pace was 5:20.

I want to do my next elliptical machine marathon in 2:20:00. That’s a 5:20 pace. It will beat the world record for my age by 14 minutes. Then I want to run one as fast as those guys from Africa. That will be a 4:40 pace. And I want to celebrate my 60th birthday by running a real marathon under 3 hours.

No, I don’t actually run. All I have to do is glide. And no, I don’t count the time when I have to get off the machine to get water and tend to my physical limitations, which haven’t gotten any better – not yet, anyway.

So what do we learn from all this? You’ve long since figured out that this series of blog posts isn’t about running marathons on the elliptical machine. Instead, it’s about running past our limits, whatever they are. It’s about doing things we know are impossible. Apparently we can live in two realities at once. In one, there is no possible way we can do the thing we want. In the other reality, we can, and the first reality’s negative opinion doesn’t count. The first time we do it, we’re stunned and astonished, and so is everyone else. The second time, it’s just routine. What used to be impossible has now become the new normal.

What’s the new normal you’d like to create for yourself? Like I said back at the start, if all of us could tap into this idea of doing the impossible, we and our lives and our world would change, maybe overnight.

And all we have to do is just keep gliding along.

Five years ago, Kevin Rhodes left a successful 20+ years career in private practice to pursue a creative dream. He recently reopened his law practice, while continuing to write (screenplays and nonfiction) and lead workshops on change for a variety of audiences, including the CBA’s Job Search and Career Transitions Support Group. His latest workshop, Life in the Gap: Getting Over Your Inspiration Hangover and Translating Inspiration into Action, was held April 10, 2012. Watch for another program in the near future. This post originally appeared on his blog on July 20, 2012.

Tenth Circuit: Experts As Lay Witnesses; Exclusion of Experts; No Prosecutorial Misconduct

The Tenth Circuit published its opinion in United States v. Orr on August 29, 2012.

William Orr, a creator of an alternative fuel, was convicted of wire and mail fraud, tax evasion, and making false statements to investors and the federal government. Orr hired scientists to perform tests on his fuel at his request. These scientists testified at trial as lay witnesses for the prosecution. Orr objected to the admission of their testimony because the government did not qualify them as expert witnesses under FRE 702. The Tenth Circuit found no abuse of discretion in allowing them to testify as lay witnesses. “It makes no difference if the court qualified these witnesses as experts because Orr engaged them to perform the precise services and provide the information which was the subject of their testimony. . . . The trial court walked a careful line between allowing these witnesses to testify based on first-hand knowledge and disallowing opinions based on their expertise.” The court also disposed of Orr’s argument that “the admission of the non-expert testimony violated his Sixth Amendment right to confront the witnesses and his Fifth Amendment right to a fair trial. . . .” Claiming defense counsel could not ask certain questions of the witnesses with no way to ascertain what those questions might be was too speculative to be an error.

Orr also objected to the exclusion of some of his proffered experts. The Tenth circuit found Orr failed to meet his burden of showing one expert’s methodology was reliable. Other witnesses were properly excluded because their testimony would confuse the issues. A defendant’s “right to present a complete defense must ‘bow to accommodate other legitimate interests in the criminal trial process.’”

Orr claimed government misconduct based on the prosecutor’s hypothetical questions to investor witnesses. The court disagreed. “[T]he prosecutor here was required to show that Orr deliberately misrepresented material facts to his investors. The prosecutor’s question went to the material nature of Orr’s statements. The question focused on the investor’s willingness to supply money if he discovered the tests did not show the promised advantages over other fuels. The prosecutor did not express her personal beliefs about these matters and the question was based on testimony presented to the jury.”

The court also denied Orr’s prosecutorial misconduct claims that the prosecution implicitly called Orr and his defense counsel liars in closing argument by saying the investors relied on Orr’s “false statements and his lies to invest a second time.” Where some of the charges required proof the defendant lied to his investors and the government, this was acceptable language. “In the proper context, such as where the testimony conflicts on key aspects of a case and the jury must determine credibility, it is not misconduct to refer to the defendant’s statements as lies.”