March 24, 2019

Archives for October 2012

“Know Your Judge” Website a Tool for Colorado Voters in Judicial Races

This November, in addition to executive and legislative candidates, Colorado voters will be deciding whether or not to retain Colorado judges. Under Colorado’s system for selecting and retaining judges, all judges who will appear on the ballot must undergo a performance evaluation, the results of which are provided to the public as a tool for casting an informed retention vote. A website—www.knowyourjudge.com—is helping voters locate this information for the judges who will appear on their ballot.

Know Your Judge directs voters to the information provided by the Colorado Office of Judicial Performance Evaluation, including evaluation results for judges in each county, and court of appeals judges and supreme court justices who appear on ballots statewide. In addition to the evaluation results, which are presented in both narrative and detailed form, there is a recommendation of “retain,” “do not retain,” or “no opinion” for each evaluated judge based on that judge’s performance on the bench. These recommendations are carefully formulated by the Colorado Commissions on Judicial Performance, based on comprehensive data collected as part of the evaluation process.

Official judicial performance evaluation programs have been established in 17 states and the District of Columbia, and in seven of these states performance evaluation results are provided to voters for use in retention elections. The broad-based and objective performance information collected by these programs is particularly important given the growing number of anti-retention efforts against state court judges on the basis of individual rulings with which special interests may disagree. In both Iowa and Florida this election cycle, state supreme court justices standing for retention are facing anti-retention campaigns on the basis of a particular court decision. In Iowa, a similar effort in 2010 was successful in unseating the three supreme court justices standing for retention that year. Neither Iowa nor Florida has an official JPE program for the benefit of voters.

The Know Your Judge website was developed in 2010 to help draw attention to this resource for voters, and to provide Colorado citizens with information about how their judges are selected, evaluated, and retained. In a 2010 post-election poll, judicial performance evaluations were the most commonly mentioned source of information about Colorado judges, and more than 4 in 10 Coloradoans who visited the Know Your Judge website found it helpful in making their voting decisions.

The effort is sponsored by the Colorado Bar Association, in partnership with the Colorado Judicial Institute, the League of Women Voters® of Colorado Education Fund, and IAALS, the Institute for the Advancement of the American Legal System at the University of Denver.

Alli Gerkman is Director of Communications for IAALS, the Institute for the Advancement of the American Legal System at the University of Denver. IAALS is a national, independent research center dedicated to continuous improvement of the process and culture of the civil justice system. This post originally appeared on IAALS Online, the IAALS blog.

The opinions and views expressed by Featured Bloggers on CBA-CLE Legal Connection do not necessarily represent the opinions and views of the Colorado Bar Association, the Denver Bar Association, or CBA-CLE, and should not be construed as such.

Colorado Court of Appeals: Writ to Transport Inmate from One County Jail to Another Not Functionally Equivalent to Subpoena

The Colorado Court of Appeals issued its opinion in People v. Seader on Thursday, October 25, 2012.

Writ to Transport as Functional Equivalent of a Subpoena to Testify—CRS § 16-5-204(4).

The People’s appeal presented a single issue of first impression: whether a writ to transport an inmate from one county jail to another, before the inmate’s testimony before a grand jury, is the functional equivalent of a subpoena to testify before the grand jury. The Court of Appeals concluded it was not and therefore reversed the judgment dismissing an indictment against defendant for theft by receiving and conspiracy to commit theft by receiving.

Defendant was being held at the City and County of Denver Jail on an unrelated matter. Jefferson County authorities executed a transport writ so he could be taken to Jefferson County Jail to testify before a grand jury. He was never served with a grand jury subpoena.

After defendant arrived at Jefferson County Jail, a district attorney investigator met with him. Defendant was informed he had been transferred to answer questions before a grand jury, if he chose to do so, and that he should consider “helping himself.” Defendant asked to speak with an attorney, but the investigator told him he would need to make his own arrangements to do so.

Defendant was released into the custody of two district attorney investigators and they transported him in shackles and handcuffs to the grand jury waiting area. A deputy district attorney told him he was likely to be charged by the grand jury and he might be able to help himself if he testified. The deputy district attorney told defendant that (1) he was not under subpoena to testify; (2) he could choose not to testify; (3) anything he said could be used against him; and (4) if he chose to proceed without an attorney, he would do so voluntarily. Defendant did not speak to an attorney and no plea agreement was reached.

In the grand jury room, defendant was advised again of his rights. Defendant testified regarding his involvement in the theft and sale of brass cemetery vases and sprinkler parts. He subsequently was indicted.

Defendant moved to dismiss the indictment, arguing, in part, that he was “brought before the grand jury in custody, against his wishes, without a full and effective advisal of [his] right to counsel and his right to remain silent.” The district court granted the motion under CRS § 16-5-204(4).

On appeal, the Court agreed with the People that it was error to find that the writ to transport to the Jefferson County Jail was the functional equivalent of a subpoena. The writ did not compel defendant to appear and give testimony before the grand jury. Therefore, the written advisement requirement of CRS § 16-5-204(4)(a) and (b) was inapplicable. The judgment was reversed and the case was remanded with instructions to reinstate the indictment.

Summary and full case available here.

Colorado Court of Appeals: Claims Under Dog Bite Statute Not Excluded by Predator Control Dog Exclusion; Judgment Affirmed as to All Other Counts

The Colorado Court of Appeals issued its opinion in Legro v. Robinson on Thursday, October 25, 2012.

Summary Judgment—Civil Dog Bite Statute—Premises Liability Act—“Landowner.”

Plaintiffs Renee and Stephen Legro appealed the district court’s entry of summary judgment in favor of defendants Samuel and Cheri Robinson. The Legros also appealed the court’s denial of their motions to amend their complaint and to enforce an alleged settlement agreement. The Court of Appeals affirmed the summary judgment in part and reversed it in part; declined to address the motion to amend; affirmed the order denying enforcement of a settlement agreement; and remanded the case with directions.

On July 9, 2008, Renee Legro was in a bicycle race sponsored by the Vail Recreation District (District) when she was attacked by two of the Robinsons’ predator control dogs and sustained significant injuries. The attack was on a public road in the White River National Forest. The Robinsons had a permit, issued by the U.S. Forest Service, to graze sheep in the area of the attack. The District had a permit for the race on the road where the attack occurred.

The Legros sued, alleging negligence, negligence per se, loss of consortium, and strict liability pursuant to the civil dog bite statute, CRS § 13-21-124. The Robinsons moved for summary judgment, arguing that the common law claims were barred by the premises liability act (PLA) and that they could not be held liable under the predator control dog exclusion of the dog bite statute. The district court granted the Robinsons’ motion, agreeing with both arguments.

On May 25, 2011, the day of the district court’s order, the Legros filed a motion to reconsider, requesting the case proceed to trial as a PLA case and a separate motion to file an amended complaint alleging a PLA claim. The court never ruled on the motions; therefore, they were denied as a matter of law.

Twelve days after the summary judgment order, the Legros filed a motion to enforce a settlement agreement allegedly accepted by them fewer than two hours after the court’s summary judgment order. The district court did not rule on this either, but after remand from the Court of Appeals for that express purpose, the district court denied it on January 30, 2012.

On appeal, the Legros argued that it was error to conclude that the Robinsons were PLA landowners. The Court disagreed. The term “landowner” is broadly defined in the PLA. Under their sheep grazing permit, the Robinsons had a legal entitlement to be on the property. They were responsible for creating a condition, or conducting an activity, on the property that injured Legro;therefore, they qualified as landowners under the PLA.

The district court failed to determine whether the dog bite statute may prevail over the PLA, assuming the PLA abrogated the statutory dog bite claim. The Court held that the PLA does not abrogate the Legros’ statutory claim, nor does the dog bite statute prevail over the PLA; rather, both statutes may be given effect in this case.

Under the dog bite statute, a dog owner may be held strictly liable for economic damages if the dog bites a person who is lawfully on public or private property absent one of the statutory exclusions. If the incident occurs on a property where the defendant also qualifies as a PLA landowner, the plaintiff may seek damages beyond economic damages under the PLA and the landowner may avoid liability by demonstrating he or she met the duties imposed under the PLA.

The Legros further argued that the district court erred in finding that the undisputed facts supported application of the predator control dog exclusion to grant summary judgment under the dog bite statute. The Court agreed. The question was whether the predator control dogs were on “property of or under the control of” the Robinsons. The property was owned by the Forest Service, so the Court had to determine whether it was “under the control of” the Robinsons. The Court held that “control” of property as used in the statute means, at a minimum, sufficient control over the property such that a dog owner has the right to exclude persons from the property. Here, the Robinsons had a Taylor Grazing Act permit (43 USC § 315b), which is nonexclusive. The Court held they did not have control of the property within the meaning of the exclusion because they could not exclude others from the property. Therefore, it was error to enter summary judgment based on the exclusion.

The Court affirmed summary judgment barring the Legros’ common law claims under the PLA because the Robinsons are landowners. Because the dog bite statute also applies and the predator dog exclusion is not supported by the undisputed facts, the summary judgment was reversed as to that claim and the case was remanded, with specific instructions allowing the Legros to amend their complaint to state a PLA claim. The Court affirmed the order denying the Legros’ motion to enforce the alleged settlement agreement, because it was clearly withdrawn before its acceptance.

Summary and full case available here.

Colorado Court of Appeals: Defense Counsel’s Assistance at Trial Court Was Effective in Several Ways

The Colorado Court of Appeals issued its opinion in People v. Aguilar on Thursday, October 25, 2012.

Crim.P. 11 and 35(c)—Second-Degree Murder—Felony Murder—Burglary—Ineffective Assistance of Counsel—Expert Witness—Jury Instruction—Double Jeopardy Rights—Providency Hearing—Sentencing.

Defendant, appearing pro se, appealed the district court’s order denying his Crim.P. 35(c) motion for post-conviction relief alleging ineffective assistance of counsel. The order was affirmed.

Defendant and his companions broke into the victim’s home, bound and gagged the victim, and covered him with a mattress. They then ransacked the victim’s home and carried items away. The victim was unable to free himself and consequently died. A jury found defendant guilty of first-degree burglary, second-degree burglary, theft, robbery, and conspiracy to commit robbery. The jury could not reach a verdict on a charge of felony murder and a mistrial was granted with respect to that charge. Before the scheduled retrial, defendant pleaded guilty to second-degree murder in exchange for dismissal of the felony murder charge.

Defendant contended that he received ineffective assistance of trial counsel because counsel failed to hire an expert to observe and rebut the prosecution’s use of consumptive DNA testing. Defense counsel’s decision to call or not call his own DNA expert was a matter of trial strategy. Defendant failed to allege facts establishing that counsel’s choice was outside the wide range of professionally competent assistance. Consequently, defendant was not entitled to a hearing on this claim.

Defendant also contended that counsel was ineffective for failing to tender a reckless manslaughter instruction at trial. Defendant’s theory of defense was that he did not cause the victim’s death. Therefore, reckless manslaughter was inconsistent with defendant’s theory of defense and defendant cannot prove that counsel’s performance was deficient in this regard.

Defendant also argued that his trial counsel was ineffective for not advising him of his double jeopardy rights. Specifically, defendant argued that because the jury had convicted him of first-degree burglary, a lesser-included offense of felony murder, he could not be retried for felony murder and, therefore, his counsel was ineffective in neglecting to advise him that he should not plead to another lesser included offense of felony murder. The jury convicted defendant of burglary and expressly hung on the charge of felony murder. The implied acquittal rule does not bar retrial of a greater offense when a jury deadlocks on that charge but convicts on a lesser-included offense. Therefore, a retrial for felony murder would not have violated defendant’s double jeopardy rights. Consequently, his claim that counsel was ineffective for allowing his guilty plea to avoid a second trial failed.

Defendant further contended that he received ineffective assistance of counsel during the Crim.P. 11 providency hearing. However, the plea agreement signed by defendant and the record of the plea hearing do not support defendant’s argument. Because defendant was advised orally or in writing of each of the asserted errors, he failed to establish that his plea was not voluntary, knowing, or intelligent, or that his defense counsel provided deficient performance.

Finally, because defendant’s convictions were not supported by identical evidence, his counsel was not ineffective in failing to secure concurrent sentences. The order was affirmed.

Summary and full case available here.

Colorado Court of Appeals: Equitable Relief, Not Legal Damages, Appropriate Where Contract Provided for Equitable Adjustment for Unanticipated Costs

The Colorado Court of Appeals issued its opinion in Parker Excavating, Inc. v. City & County of Denver on Thursday, October 25, 2012.

Contract Dispute—Equitable Relief.

In this government contracts case, plaintiff Parker Excavating, Inc. (Parker) appealed the trial court’s judgment awarding it $1.65 million under an equitable adjustment provision of Parker’s contract with the City and County of Denver’s Board of Water Commissioners (Denver Water). The judgment was affirmed.

This case arose out of a contract dispute between Parker and Denver Water over responsibility for increased costs associated with constructing a dam and reservoir at a sand and gravel pit. The trial court found that Parker’s costs increased by $2,373,679, but “as an equitable matter . . . both parties share some responsibility for the unanticipated muck.” The court concluded that Denver Water was more responsible than Parker. It then awarded Parker $1.65 million.

On appeal, Parker argued that the trial court erred in awarding Parker equitable relief rather than legal damages. The contract contained an equitable adjustment provision, entitling either party to seek an equitable adjustment for increased or decreased costs caused by unanticipated site conditions. Further, the contract excluded compensation for excavation costs. Therefore, from the plain language of the contract, the parties would have reasonably expected an equitable adjustment to be a remedy in equity. Further, the trial court did not clearly err in reducing the measure of equitable adjustment to account for Parker’s relative responsibility in not determining the extent of the muck. The trial court’s findings are, therefore, supported by evidence in the record that certain costs were attributable to Parker, and those findings were not disturbed on appeal.

Summary and full case available here.

Tenth Circuit: Improper Jury Instruction Required Reversal of Conviction of A Multiplicitous Count

The Tenth Circuit issued its opinion in United States v. Frierson on Monday, October 29, 2012.

Darren Frierson, the defendant, was charged with numerous offenses along with other Crips gang members and was convicted of several counts. At issue in this appeal is Frierson’s claim that two of the counts were multiplicitous. One was for conspiracy to distribute and possession with intent to distribute crack cocaine and the second challenged count was for conspiracy to distribute more than 50 grams of crack cocaine. The Tenth Circuit reviewed for plain error. While the government may submit multiple charges to the jury that cover the same criminal behavior, multiplicitous sentences violate double jeopardy. Because the jury was not instructed that to convict on both these counts they must find the defendant entered into two separate agreements to violate the law, the court remanded for the conviction and sentence on one of the two counts to be vacated.

Tenth Circuit: Unpublished Opinions, 10/29/12

On Monday, October 29, 2012, the Tenth Circuit Court of Appeals issued one published opinion and three unpublished opinions.

Unpublished

United States v. Sajaropulos-Heraldez

Bennett v. Johnson

United States v. Mendoza-Lopez

No case summaries are provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.

Judge Robert Crowder to Resign from El Paso County Court Bench

The Fourth Judicial District Nominating Commission will meet at the El Paso County Courthouse on Monday, December 10, 2012, to interview and select nominees for the judgeship to be created by the resignation of the Honorable Robert Crowder.

Eligible applicants for the appointment must be qualified electors of the Fourth Judicial District and must have been admitted to practice law in Colorado for five years. Applications must be submitted to the ex officio chair of the nominating commission by 4 p.m. on Monday, November 26, 2012. The appointed district court judge will serve a provisional term of two years before facing a retention election. If retained in the general election, judges serve additional six-year terms.

Further information about the vacancy is available from the Colorado State Judicial Branch.

Second Annual Strikes for Tykes Event on Saturday, November 3, 2012

On November 3,2012 the Community Action Network of the Denver Bar Association will present the second annual Strikes for Tykes bowling event to raise funds for Children’s Outreach Project, a non-profit, therapeutic preschool and child care center serving north Denver and the surrounding communities. The vision of Children’s Outreach Project is “to provide young children of all abilities with excellent early childhood education and care that is affordable for families.”

Strikes for Tykes will be held from 11 am to 2 pm at Elitch Lanes. Registration is $35 for adults and $20 for children. RSVP online or contact Kasi Schuelke at kasi@bmrpc.com or (303) 623-1836 or Evan Lee at evan@bmrpc.com or (303) 623-1840.

Colorado Court of Appeals: Search and Seizure Not Constitutionally Protected Without Suspicion of Criminal Activity

The Colorado Court of Appeals issued its opinion in People v. Berdahl on Thursday, October 25, 2012.

Possession—Pat-Down Search—Suppression of Evidence—Voluntary Consent.

Defendant appealed the judgment of conviction entered on jury verdicts finding him guilty of possession of a schedule II controlled substance, a class 6 felony, and possession of drug paraphernalia, a class 2 petty offense. The order was reversed and the case was remanded.

When assisting defendant and his girlfriend, whose vehicle had broken down at the side of the road, a deputy recovered drug paraphernalia and methamphetamine from defendant while doing a safety pat-down before letting the couple ride in the back seat of his patrol car. The deputy secured the evidence, handcuffed defendant, transported him to the jail, and booked him.

Defendant’s sole contention on appeal was that the trial court erred in denying his motion to suppress evidence. Specifically, he asserted that the pat-down search of his person was unconstitutional because the police had no reasonable and articulable suspicion that he was involved in criminal activity or that he was armed and dangerous. The deputy and the trooper testified that defendant was not intoxicated and that they did not have any suspicion that he was or had been involved in a crime, or that he might be armed and dangerous. Instead, the trooper patted down defendant as an “officer-safety practice.” Therefore, the trooper’s pat-down search of defendant was not a constitutionally reasonable search. The case was remanded to determine whether defendant voluntarily consented to the search according to the proper legal standards, which would affirm the conviction.

Summary and full case available here.

Colorado Court of Appeals: Plaintiffs Reasonably Relied on Insurance Adjuster’s Statements that Claims Would Be Fully Covered

The Colorado Court of Appeals issued its opinion in Colorado Pool Systems, Inc. v. Scottsdale Insurance Company on Thursday, October 25, 2012.

“Accident”—Defective Work Product—Negligent Misrepresentation.

Plaintiffs Colorado Pool Systems, Inc. (Colorado Pool) and its owner, Patrick Kitowski, appealed from summary judgments in favor of defendants Scottsdale Insurance Company (Scottsdale), GAB Robbins North America, Inc. (GAB), and GAB employee Don Hansen. The judgments were reversed and the case was remanded for further proceedings.

Colorado Pool was hired to install a swimming pool at Founders Village Pool and Community Center. The subcontractors Colorado Pool hired installed a defective concrete shell for the pool. Colorado Pool notified its insurance carrier, Scottsdale. Scottsdale assigned the matter to a claims adjuster, Hansen, who inspected the pool and indicated that Scottsdale would cover losses associated with demolishing and replacing the pool. After the pool’s concrete shell was demolished for the purpose of starting over, Scottsdale denied coverage.

Plaintiffs contended that the court erred in ruling that the alleged damage did not arise from an “accident,” as that term is used in the policy. The Builders Insurance Act does not apply retroactively. However, a builder is covered under a commercial general liability (CGL) policy for damages that arose from the builder’s own improper or faulty workmanship if (1) it is not specifically excluded in the policy; (2) the resulting damage was to non-defective property; and (3) the damage was caused without expectation or foresight. Here, the policy did not define “accident.” Plaintiffs’ policy does not cover damage incurred in demolishing and replacing the pool itself. This damage resulted solely from plaintiffs’ obligation—necessarily expected—to replace defective work product. However, the consequential damage to non-defective third-party work (including damage to a deck, sidewalk, retaining wall, and electrical conduits) is covered because this damage was the result of an “accident.” Accordingly, the trial court’s summary judgment in favor of Scottsdale was reversed, and the case was remanded for further proceedings on plaintiffs’ claims.

Plaintiffs also argued that the trial court erred in granting summary judgment to defendants on plaintiffs’ negligent misrepresentation claim against GAB and Hansen. Plaintiffs relied on Hansen’s statements that Scottsdale would cover losses associated with demolishing and replacing the pool. Although plaintiffs may be charged with full knowledge of the policy’s terms in an effort to defeat their justifiable reliance argument, that knowledge does not mean that plaintiffs were unjustified in relying on Hansen’s alleged misrepresentations where the terms of the policy were ambiguous. Therefore, the trial court erred in granting summary judgment on this issue.

Summary and full case available here.

Colorado Court of Appeals: District Court Erred in Denying Defendant’s Request for Presentence Confinement Credit

The Colorado Court of Appeals issued its opinion in People v. Howe on Thursday, October 25, 2012.

Probation Revocation—Presentence Confinement Credit—Substantial Nexus.

In this Jefferson County probation revocation case, defendant appealed the district court’s order denying his motion for 278 days of presentence confinement credit (PSCC). The order was reversed and the case was remanded.

While on probation in Jefferson County, defendant committed a new drug offense in El Paso County that triggered his arrest and confinement by El Paso authorities, as well as the issuance of a Jefferson County arrest warrant and commencement of revocation proceedings. Defendant argued that he is entitled to PSCC in both cases on revocation of the probation. Although the probation revocation complaint and the drug offenses were filed in separate judicial districts, the revocation complaint was based, in part, on the drug offenses in the El Paso County case. Therefore, there was a substantial nexus between the conduct underlying the Jefferson County probation revocation complaint and warrant and his confinement in El Paso County. Further, defendant’s sentence in the El Paso County case was concurrent with his sentence in the Jefferson County revocation case. Therefore, the trial court erred when it denied defendant’s request for additional PSCC in the revocation case.

Summary and full case available here.