August 14, 2018

Archives for July 11, 2014

Denver DA Mitch Morrissey is Keynote Speaker at the 16th Annual Senior Law Day on July 19

Layout 1Denver District Attorney Mitch Morrissey is the keynote speaker for this year’s 16th Annual Denver Senior Law Day. As the chief prosecutor in Denver, he is responsible for the prosecution of more than 6,000 felony and 18,000 misdemeanor criminal cases every year, and is a staunch advocate for fraud prevention and education in the Denver community.

With incredible resources and educational workshops, this event is not only for seniors in the community, but also valuable for adult children and caregivers who are helping aging parents, relatives, or friends. The event is from 8:00 a.m. to 1:20 p.m. on Saturday, July 19 at the Denver Mart.

The 16th Annual Senior Law Day offers the public the opportunity to hear from experienced elder law attorneys and other professionals involved in elder care issues.  This year there are thirty-three unique, informative workshops to choose from that will help seniors learn how to better manage family and financial issues and prepare for retirement.

Workshops this year include “How Hospice and Palliative Care Can Save Your Life,” “Aging in Place – Maintaining Your Independence at Home,” “ Assisted Living and Nursing Home Issues,” “ Estate Planning: Wills, Trusts & Your Property,” “ Hanging Up the Car Keys for Good,” “ Living Wills, Advance Medical Directives, DNR Orders, Proxies, and End of Life Issues,” “Medicaid and Medicare 101,” “ Planning For Your Pets,” “Powers of Attorney and Guardianship & Conservatorship,” “ Social Security,” “To Marry or Not to Marry—That is the Question,” “ VA Benefits,” and “ What to do When Someone Dies.”

Attendees are also available to meet with an attorney at the “Ask-A-Lawyer” Session, a free 15-minute meeting with an attorney to ask about elder law and trust and estate issues. For more information on this and a full list of workshops, go to http://www.seniorlawday.org/denver.

Much of the content presented at Denver Senior Law Day also can be found in the comprehensive 2014 Senior Law Handbook, which is distributed free at the event. The Senior Law Handbook is supported through the generous contributions from organizations and law firms, including Rose Community Foundation—an organization that supports efforts to improve the quality of life throughout the Greater Denver community through its endowed grantmaking programs, and by advising and assisting donors who wish to make thoughtful charitable investments to better the community.

A $10 contribution is suggested but not required to attend the event. Registration is requested; call (303) 860-0608 or dial toll-free (888) 860-2531, or go online to register at  www.seniorlawday.org and click on the “Denver” tab. Business vendors and potential exhibitors should contact Sherrill Wolf at (303) 860-0608.

Full details on the event are available at  www.seniorlawday.org/denver.

Colorado Court of Appeals: Strategic Choices by Defense Attorney Do Not Constitute Ineffective Assistance

The Colorado Court of Appeals issued its opinion in People v. Newmiller on Thursday, July 3, 2014.

Ineffective Assistance of Counsel.

Defendant, his brother, and their friends went to a strip club in Colorado Springs to celebrate defendant’s birthday. When the group was leaving the club, they had an altercation with another group (victim’s group) regarding a comment someone in the victim’s group had made to a dancer. The two groups confronted each other soon after, and the victim was stabbed in the heart. He later died from his injuries.

On appeal, defendant argued that his trial attorneys were ineffective. To establish prejudice, a defendant must show a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Here, counsel’s failure to request a lesser included offense instruction or consult with defendant on the matter did not constitute ineffective assistance, because it was an adequately informed strategic choice by defendant’s attorneys. Additionally, contrary to defendant’s assertions, counsel’s failure to request an instruction on the lesser non-included offense of accessory to crime did not constitute ineffective assistance, because there was no factual basis for this requested instruction; it could be considered a strategic choice by defendant’s attorneys. Further, the level of investigation by defendant’s counsel and the subsequent decision not to retain a medical expert clearly met the standard of reasonably competent assistance. Also, defendant has not shown that, in light of all the circumstances, counsel’s failure to call a crime scene reconstruction expert was “outside the wide range of professionally competent assistance.” Finally, one attorney discussed the case with defendant on multiple occasions and this attorney’s advice to defendant regarding his right to testify was within the range of competence demanded of attorneys in criminal cases. Therefore, defendant failed to prove that his attorneys were ineffective. The district court’s order denying defendant’s Crim.P. 35(c) motion for post-conviction relief was affirmed.

Summary and full case available here.

Colorado Court of Appeals: Supreme Court’s Mandate that Court of Appeals Apply Novotny Rule Could Not Be Disregarded

The Colorado Court of Appeals issued its opinion in People v. Wise on Thursday, July 3, 2014.

Challenge for Cause—Novotny—Due Process—Retroactive Application—Bias—Consecutive Sentences.

A division of the Court of Appeals previously determined that the district court had erroneously denied defendant’s challenge for cause to a prospective juror. The Colorado Supreme Court vacated the division’s decision, and remanded the case for reconsideration in light of People v. Novotny, No. 10SC377, 2014 CO 18.

On appeal, defendant contended that applying the holding of Novotny to this case would violate his right to due process because he did not have fair warning of Novotny’s change in the law. In Novotny, the court abrogated the automatic reversal rule on which the previous division had relied, holding that reversal is required for a district court’s deprivation of a defendant’s peremptory challenge only where the error was not “harmless under the proper outcome-determinative test.” Here, the Supreme Court mandated that the Court of Appeals apply that rule in this case. Further, because retroactive application to this case has no legaleffect on proceedings in the district court, including both the determination of guilt and punishment, defendant’s due process rights were not violated. Therefore, in applying Novotny to defendant’s case, and assuming that the district court erred in denying the challenge for cause to prospective juror K, the district court’s error resulting in defendant’s loss of a peremptory challenge was harmless, because defendant did not show that a biased or incompetent juror participated in deciding his guilt.

Defendant also contended that the district court abused its discretion in imposing consecutive sentences for his two felony convictions. Where, as here, a defendant’s multiple convictions are not based on identical evidence, the district court has discretion to impose either concurrent or consecutive sentences. The court’s remarks considered as a whole constitute a sufficient explanation of the basis for its decision to impose consecutive sentences. The judgment and sentence were affirmed.

Summary and full case available here.

Tenth Circuit: Qualified Immunity Appropriate for Officers who Reasonably Believed Probable Cause Existed for Search

The Tenth Circuit Court of Appeals issued its opinion in Stonecipher v. Special Agents on Tuesday, July 1, 2014.

Anthony and Melissa Stonecipher were targets of an investigation into their purchases and sales of firearms and explosives. Mrs. Stonecipher had purchased 14 handguns over a period of 10 months, including 12 on a single day, and the federal Bureau of Alcohol, Tobacco, and Firearms began investigating her. The ATF also learned that Mr. Stonecipher was attempting to sell firearms and explosives out of his home. Two special agents went undercover to the Stoneciphers’ home and purchased a firearm and two explosives from Mr. Stonecipher. The ATF determined that Mr. Stonecipher’s sale of the explosives violated 18 U.S.C. § 842(a)(1) because he did not have a federal firearms or explosives license and investigated further into his activity.

In the course of their investigation into Mr. Stonecipher’s activity, Officer Carlos Valles obtained a certified court document showing that Mr. Stonecipher had been convicted of misdemeanor domestic violence in 2007 in Missouri. Valles also obtained a report from the National Instant Criminal Background Check System (NICS) that indicated Mr. Stonecipher had been denied the right to purchase a handgun because of the conviction, and a report from the National Criminal Information Center (NCIC) noting Mr. Stonecipher’s domestic violence charge. Valles sought legal advice from Assistant U.S. Attorney Ron Jennings regarding whether Mr. Stonecipher was prohibited from possessing firearms due to his domestic violence conviction. After reviewing all the documents, Jennings advised Valles that Mr. Stonecipher was prohibited from possessing firearms. Valles prepared an application and supporting affidavit for a search warrant to search the Stoneciphers’ house. The warrant was signed by a magistrate judge, and the search was executed. Mr. Stonecipher was placed under arrest during the search, after which he repeatedly proclaimed that his First and Second Amendment rights were being violated. Mr. Stonecipher requested to retrieve some papers from his house, one of which was a letter from his Missouri criminal defense attorney that advised Stonecipher that his conviction would not count after he completed his probation. The agents continued their search, and the next day Valles informed Jennings of the letter produced by Mr. Stonecipher. Jennings advised Valles to proceed with the case. Valles prepared a criminal complaint, which Jennings approved, and Valles filed the complaint in federal district court. Five days later, the prosecuting U.S. Attorney moved to dismiss the case upon discovering that the domestic violence charge was not a qualifying conviction.

The Stoneciphers brought a civil rights action against Valles and five other ATF agents involved in the search. The defendants moved to dismiss on qualified immunity grounds, and the district court granted the motion, finding that the agents reasonably concluded on facts available that they had probable cause to search the house and arrest Mr. Stonecipher. The Stoneciphers contended that the officers were not entitled to qualified immunity because they lacked probable cause. The Stoneciphers also alleged that Valles’ warrant application was a reckless disregard of the truth, contending that he knew or should have known that the Missouri suspended sentence was not a conviction for purposes of 18 U.S.C. § 922(g). The Tenth Circuit disagreed, noting that the documents on which Officer Valles relied were confusing and could be interpreted by an objectively reasonable officer as supportive of the warrant and complaint. The Tenth Circuit also examined the conduct of Officer Valles, particularly that he independently consulted AUSA Jennings, and determined that Officer Valles’ conduct was reasonable and supported dismissal on qualified immunity grounds.

The Stoneciphers also alleged that once they produced the letter from the Missouri criminal defense attorney, the officers should have stopped their search. However, the Tenth Circuit noted that the officers had no duty to credit the suspect’s explanation if they independently believed they still had reasonable probable cause to conduct the search. There was no way for the officers to verify the authenticity of the letter in the middle of the search, and Valles informed Jennings of the letter and its contents the next day. Upon evaluation of the Stoneciphers’ malicious prosecution claims, the Tenth Circuit similarly upheld the actions of Officer Valles, noting that nothing supported that his behavior was malicious. The Tenth Circuit affirmed the district court’s dismissal because the defendants were entitled to qualified immunity.

Tenth Circuit: Three-Year Statute of Limitations for General Tort Applies to Childhood Sexual Abuse Claims

The Tenth Circuit Court of Appeals issued its opinion in Varnell v. Dora Consolidated School District on Tuesday, July 1, 2014.

Plaintiff Varnell was allegedly sexually abused by her coach, Amber Shaw, beginning in 2005 and ending in early 2007, when plaintiff was in seventh through ninth grades at Dora Consolidated School District. On May 24, 2012, when she was 20 years old, plaintiff brought suit against Shaw, Dora Schools, and Dora Schools superintendent Steve Barron under the New Mexico Tort Claims Act, the Civil Rights Act of 1871, and Title IX of the Education Amendments Act of 1972. She later sought to amend her complaint to add additional parties and claims. On defendants’ motion, the district court dismissed the claims as time-barred, denied the amendments to the complaint as futile, and dismissed without prejudice the state court claims. Plaintiff appealed.

The Tenth Circuit affirmed the district court’s judgment. The Tenth Circuit evaluated applicable statutes of limitation for the federal claims, noting that § 1983 does not contain a statute of limitations. It therefore evaluated local state statutes of limitations, and decided that New Mexico’s three-year statute of limitations for tort personal injury claims under § 1983 applied. Because of her minority at the time of the abuse, plaintiff would have been given one extra year after achieving majority in which to file suit, but she did not file until she was 20 years old. Plaintiff argued that the statute should have been further tolled due to alleged incapacity. However, she brought forth no evidence of incapacity and was a college student pursuing a biology degree at the time of the appeal, evidencing an ability to manage her own affairs. Plaintiff also argued that the limitations period was tolled because she did not realize the extent of her psychiatric injury until 2012. This argument failed as well, since under Supreme Court precedent in Wallace v. Kato, 549 U.S. 384 (2007), the common-law tort claim closest to plaintiff’s injuries was battery, and the statute of limitations would have begun to run in early 2007, when the last incident occurred. Plaintiff erroneously relied on the “discovery rule,” which delays accrual of a claim until the discovery of the claim, stating that she did not discover the extent of the damage until 2012. However, quoting Wallace, the Tenth Circuit noted that the cause of action accrues even though the full extent of the injury is not known or predictable, because if it were otherwise, “the statute would begin to run only after a plaintiff became satisfied that he had been harmed enough, placing the supposed statute of repose in the sole hands of the party seeking relief.” Wallace, 549 U.S. at 391.

Plaintiff also alleged that the district court erred by dismissing her state court claims without prejudice instead of remanding them, but the Tenth Circuit noted that the district court properly exercised its discretion under 28 U.S.C. § 1367, and that she would have had 30 days in which to bring her claims in state court after they were dismissed in federal court. Finally, plaintiff contends that the district court erred by denying as futile her motion to amend. Because her claims were time-barred and plaintiff failed to present any argument as to why the amendments would not be time-barred in her opening brief, the Tenth Circuit found no error.

The judgment of the district court was affirmed on all counts.

Colorado Court of Appeals: Announcement Sheet, 7/10/2014

On Thursday, July 10, 2014, the Colorado Court of Appeals issued no published opinion and 28 unpublished opinions.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions. The case announcement sheet is available here.

Tenth Circuit: Unpublished Opinions, 7/10/2014

On Thursday, July 10, 2014, the Tenth Circuit Court of Appeals issued no published opinion and two unpublished opinions.

Horton v. Holly Corporation

Kennedy v. Addison

Case summaries are not provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.