June 17, 2019

Archives for March 30, 2016

Nominees Selected for Vacancies on Second Judicial District Court

On Tuesday, March 29, 2016, the Second Judicial District Nominating Commission announced its selection of six nominees to fill two upcoming vacancies on the Second Judicial District Court. The nominees are Christopher J. Baumann, Jay S. Grant, Frances E. Simonet, Jay B. Simonson, Jennifer B. Torrington, and Christine A. Washburn.

Christopher J. Baumann is the head of the Denver office of the Colorado State Public Defender. Jay S. Grant is lead attorney at the same office. Frances Simonet is a magistrate in the Seventeenth Judicial District. Jay B. Simonson is a First Assistant Attorney General. Jennifer B. Torrington is a magistrate in the Second Judicial District. Christine A. Washburn is the Chief Deputy District Attorney for the Denver District Attorney’s Office.

Under the Colorado Constitution, the governor has 15 days from March 29 in which to appoint two of the nominees to the vacancies. Comments regarding any of the nominees may be emailed to the governor at gov_judicialappointments@state.co.us. For more information about the nominees, click here.

Colorado Court of Appeals: Prosecutor “Channeling” Victim in Opening Statement was Error but Not Plain

The Colorado Court of Appeals issued its opinion in People v. Manyik on Thursday, March 24, 2016.

Prosecutorial Misconduct—Amended Information—Crim.P. 7(e)—Jury Instruction—Mistaken Belief—Hearsay.

Adams was romantically involved with Manyik and lived in his house. Adams remained in contact and continued to socialize with the victim, with whom she previously had been in a relationship. Adams invited the victim to Manyik’s house and told victim that Manyik was out of town on a hunting trip. When the victim arrived, Manyik shot and killed him.

Manyik was convicted of second-degree murder, aggravated robbery, and tampering with physical evidence.

Manyik raised five arguments on appeal. First, he argued that the prosecutor’s “channeling” (a technique by which a lawyer speaks to the jury in the first person as though he is the injured or deceased person) constituted prosecutorial misconduct and required reversal of his convictions. Although the prosecutor’s opening statement was impermissible, under the limited circumstances of this case it was not plain error and did not require reversal of Manyik’s convictions.

Second, Manyik argued that the trial court erred in allowing the prosecution to amend the aggravated robbery charge during trial. Because the amended information charged a different offense and subjected Manyik to mandatory sentencing for a crime of violence, while the original charge did not, Crim.P. 7(e) precluded the amendment. Manyik’s conviction for aggravated robbery was reversed and the case was remanded for a new trial on that charge.

Third, Manyik argued that the court erred in rejecting his tendered jury instruction about evaluating statements he made to police officers. The tendered instruction emphasized only selective evidence that was favorable to Manyik and thus was improper. The trial court did not err in rejecting Manyik’s proposed jury instruction on this issue.

Fourth, Manyik contended that the court’s jury instruction on the defense of mistaken belief of fact was incorrect. The language of the instruction given was almost identical to that in the relevant statute, CRS § 18-1- 504(1)(c). Additionally, defense counsel’s argument about Manyik’s mistaken belief made the jury aware of his mistake of fact defense. Therefore, the given instruction was proper.

Lastly, Manyik argued that the court erred in excluding evidence of recorded statements he made during telephone conversations with family members when he was at the police station. Because the statements contained impermissible hearsay, the court did not err in excluding them.

The judgment was affirmed in part and reversed in part, and the case was remanded with directions.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: C.R.C.P. 60(b)(1) Motion Incorrectly Deemed Denied by Operation of C.R.C.P. 59(j)

The Colorado Court of Appeals issued its opinion in Harriman v. Cabela’s Inc. on Thursday, March 24, 2016.

Motion to Dismiss—C.R.C.P. 12(b)(5)—Motion to Set Aside—C.R.C.P. 60(b)(1)—C.R.C.P. 59(j).

Plaintiff sued Cabela’s Inc. after he was injured while testing a hunting bow at an archery range in one of its stores. The trial court granted Cabela’s C.R.C.P. 12(b)(5) motion. Plaintiff filed a C.R.C.P. 60(b)(1) motion asking the trial court to set aside its judgment. The court denied the motion because it concluded that the motion to set aside had been deemed denied by operation of C.R.C.P. 59(j).

On appeal, plaintiff contended the trial court erred in concluding that his C.R.C.P. 60(b)(1) motion to set aside had been deemed denied by operation of C.R.C.P. 59(j). The Court of Appeals agreed. C.R.C.P. 59(j) states that the court must decide a C.R.C.P. 59 motion within 63 days of when it was filed or the motion is deemed denied. The C.R.C.P. 59(j) time limit, however, does not affect motions that are properly filed under C.R.C.P. 60. Plaintiff’s timely filed motion to set aside alleged that the store had agreed to his filing a response to the store’s C.R.C.P. 12(b)(5) motion beyond the regular time limit. The motion added that “due to an oversight” plaintiff had not informed the trial court of this agreement. This allegation generally falls within the scope of C.R.C.P. 60(b)(1) (mistake, inadvertence, surprise, or excusable neglect), and does not generally fall within the scope of C.R.C.P. 59(d) or (e). The trial court’s decision to deny the motion to set aside was based on a misunderstanding of the applicable law.

Cabela’s asserted that this appeal should be dismissed because of the Court of Appeals’ decision to dismiss a prior appeal in this matter. The Court disagreed, determining that the motion to set aside at issue in this appeal did not contravene the mandate issued by the Court in the prior appeal.

The order was reversed and the case was remanded to the trial court to hold an evidentiary hearing to consider plaintiff’s motion to set aside.

Summary and full case available here, courtesy of The Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 3/29/2016

On Tuesday, March 29, 2016, the Tenth Circuit Court of Appeals issued three published opinions and seven unpublished opinions.

United States v. Tobanche

Ortega v. New Mexico Legal Aid, Inc.

McGrath v. Fogarty

United States v. Jimenez

Lane v. Colvin

United States v. Porter

Webb v. Smith

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