June 18, 2019

Archives for October 29, 2012

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.

Colorado Court of Appeals: Multiple Instances of Hearsay Permissible Under Constitution and Evidence Rules

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

First-Degree Murder—Child Abuse Resulting in Death—Hearsay—Federal Confrontation Clause—State Confrontation Clause—Batson Challenge—Jury Selection—Consecutive Sentences—Evidence.

Defendant appealed his convictions for first-degree murder, child abuse resulting in death, and tampering with physical evidence. The convictions were affirmed, the sentences were reversed in part, and the case was remanded.

Defendant’s convictions stemmed from evidence that defendant starved his stepson, C.G., to death in a linen closet in his apartment. Defendant argued that the trial court violated his federal and state Confrontation Clause rights by permitting his 5-year-old son, D.P., to testify via closed circuit television (CCTV). D.P.’s therapist testified that D.P. would be traumatized psychologically if he were made to testify in front of defendant. Further, the court allowed defense counsel to cross-examine D.P. fully, and defendant had two-way communication with counsel during direct and cross-examination. Therefore, the court did not violate defendant’s federal and state Confrontation Clause rights by allowing D.P. to testify via CCTV.

Defendant also argued that the trial court violated his federal and state Confrontation Clause rights, and state hearsay rules, by admitting various out-of-court statements made by defendant’s girlfriend, Sarah Berry; C.G.; and D.P. Statements that Berry made in a voicemail left on defendant’s cell phone, which relayed what C.G. and D.P. said, did not violate state hearsay rules, because C.G.’s statement to D.P. was a command, offered as circumstantial evidence that C.G. was extremely thirsty and, therefore, not covered by the hearsay rule. D.P.’s statement, relaying C.G.’s statement to Berry, was admissible for the non-hearsay purpose of showing its effect on Berry as the listener. Finally, Berry’s statement to defendant, in which she relayed D.P.’s (and thus C.G.’s) statement, was admissible as a non-hearsay statement by a co-conspirator under CRE 801(d)(2)(E). Therefore, the court did not abuse its discretion in admitting the voicemail into evidence.

Before his death, C.G. made various statements to the public school employees, to the police officer during the welfare check, and to the caseworker. The questioning of C.G., however, was for the purpose of determining his health and welfare, and his statements related to his then existing physical condition, which fell within a hearsay exception and were admissible. Additionally, some of C.G.’s statements to the caseworker were for a non-hearsay purpose of showing that C.G. had been coached to change his story.

Defendant’s rights were not violated in admitting the statements that D.P. made to a mental health therapist during therapy sessions after C.G.’s death. D.P. testified via CCTV and defense counsel had the opportunity to cross-examine him on any statements he had made to the therapist.

Any statements erroneously admitted were harmless beyond a reasonable doubt. There was no reasonable possibility that the admission of these statements affected the guilty verdict because the other properly admissible evidence was overwhelming that defendant knowingly starved C.G. to death in the closet.

Defendant also contended that the trial court erred in denying his Batson challenge to the prosecutor’s allegedly discriminatory use of peremptory challenges [Batson v. Kentucky, 476 U.S. 79, 89 (1986)]. Although defendant made out a prima facie case because no African American jurors remained on the panel after the prosecutor used his peremptory challenges to dismiss them, the prosecution provided permissible race-neutral explanations for his challenges, and defendant was given an opportunity to reply. Therefore, the trial court did not abuse its discretion in denying defendant’s Batson challenge.

Defendant further argued that the trial court erred in imposing consecutive sentences for first-degree murder and child abuse resulting in death. Because the evidence presented at trial supports no reasonable inference other than that defendant’s convictions of first-degree murder and of child abuse resulting in death were based on identical evidence, the trial court erred in imposing consecutive sentences for these convictions. Hence, the sentences were reversed in part and the case was remanded to correct the mittimus to reflect concurrent sentences on defendant’s convictions of first-degree murder and of child abuse resulting in death.

Summary and full case available here.

Tenth Circuit: Unpublished Opinions, 10/26/12

On Friday, October 26, 2012, the Tenth Circuit Court of Appeals issued no published opinion and four unpublished opinions.

Unpublished

United States v. Graham

United States v. Pickel

United States v. Lozoria

United States v. Rodriguez

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