March 25, 2019

Archives for June 23, 2016

Colorado Court of Appeals: Interrogation in Open Kitchen with Defendant’s Husband Present was Non-Custodial

The Colorado Court of Appeals issued its opinion in People v. Travis on Thursday, June 16, 2016.

Assault—Interview—Miranda—Motion to Suppress—Request for New Counsel—Continuance—Prosecutorial Misconduct.

Travis was convicted of second degree assault causing serious bodily injury, felony menacing, and third degree assault with a deadly weapon. She was sentenced to 10 years’ imprisonment and three years of mandatory parole.

On appeal, Travis argued that the trial court erroneously concluded that she was not in custody during the interview with police that occurred at her home and that, because she was not advised of her Miranda rights, the court erred in denying her motion to suppress the statements she made at that time. The Court of Appeals determined that (1) neither of the officers used physical restraint or force on Travis during the interview at her home; (2) Travis did not request to end the interview; (3) the interview was brief; (4) only two officers questioned Travis, the tone of the interview was conversational, and the questioning took place in Travis’s home with her husband in view; and (5) the interview took place in Travis’s kitchen, not in a secluded location. Thus, Travis was not in custody when she gave the statements at her home to the police, the statements were voluntary, and the trial court did not err in denying her motion to suppress them.

Travis also argued that the trial court abused its discretion when it denied her request for a continuance to seek new counsel on the morning of trial. Because there was insufficient information in the record to determine whether the trial court weighed the 11 essential factors or abused its discretion in denying the motion to continue, the case was remanded to the trial court for additional findings.

Additionally, Travis argued that the prosecutor’s closing argument was improper. However, the prosecutor’s remarks were a fair comment on the defense’s jury argument that while Travis was guilty of a crime, she was not guilty of the principal charges filed against her.

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

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Putative Adverse Possessor’s Property Rights are Superior to Everyone Else’s Except Actual Owner

The Colorado Court of Appeals issued its opinion in Lensky v. DiDomenico on Thursday, June 16, 2016.

Adverse Possession—Quiet Title—Putative Adverse Possessor.

In 1998, Lensky purchased a one-acre parcel of property from the Valdezes. Title insurance could not be provided because all of the structures and improvements that Lensky had purchased from the Valdezes were “off the deed” and actually located on adjacent land rather than on the deeded property. In 2001, Lensky filed a quiet title action, claiming fee simple ownership to the approximately 23 acres adjacent to the property he had purchased from the Valdezes by adverse possession. Litigation continued for a number of years. The trial court ultimately found in favor of defendants and ordered Lensky to remove certain structures that restricted access to the subject property. It further ordered Lensky and his associates to refrain from confronting defendants as they entered or left the subject property.

On appeal, Lensky contended that the trial court erred in finding that he had no rights as a putative adverse possessor. He argued that the Court of Appeals’ prior decision affirming his lack of legal title to the subject property fully adjudicated his prior claim to the property as an adverse possessor, but that it had no prospective effect. He also argued that his continued possession of the subject property as a putative adverse possessor gives him an interest in the property (including the right to restrict access to it) that is superior to everyone else’s interest except that of the rightful owner. The Court agreed, determining that neither the trial court’s prior order nor the division’s decision upholding that order addressed the parties’ possessory rights or Lensky’s ongoing right to possess the property, and neither prohibited him from continuing to attempt to adversely possess the property.

The trial court’s order prohibiting Lensky from excluding defendants from the subject property was reversed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Dormant Commerce Clause Not Violated Where Defendant Interacted with Colorado Investigator

The Colorado Court of Appeals issued its opinion in People v. Helms on Thursday, June 16, 2016.

Internet Child Exploitation Statute—CRE 404(b)—Bad Act Evidence—Evidence—Probation Revocation.

Defendant was convicted of two counts of Internet exploitation of a child. He was sentenced to 10 years of supervised probation on each count. The district court later revoked his probation when he failed to register as a sex offender and resentenced him for an indeterminate term of two years to life.

On appeal, defendant contended that the Internet child exploitation statute, C.R.S. § 18-3-405(1)(a), is facially unconstitutional for several reasons. The Court of Appeals disagreed. The statute does not violate the dormant Commerce Clause of the U.S. Constitution because the statute is limited to situations in which the criminal conduct occurs either wholly or partially in Colorado. It also does not violate the First Amendment because it is not overly broad, and it does not violate defendant’s constitutional right to due process because it is not vague.

Defendant also contended that the district court erred by admitting a statement he made, arguing that it was CRE 404(b) bad act evidence. However, the statement was not admitted as evidence of defendant’s bad character; rather, it directly rebutted his defense. Therefore, the district court did not err by admitting this evidence.

Defendant additionally argued that the evidence was insufficient to support his convictions. He argued that his conviction for count one was not supported by sufficient evidence because the jury was instructed that he must have committed the crime in Colorado to be guilty of child exploitation. However, the sufficiency of the evidence is measured against the elements of the offense rather than jury instructions. The child exploitation statute does not require that the actor be in Colorado at the time of the criminal communication. As to the second count, defendant’s conduct did not meet the requirements of the essential elements of the offense. Therefore, this conviction was reversed.

Defendant also argued that the district court erred by denying his motion for a mistrial after a witness testified about an inadmissible matter. Defense counsel elicited the statement from the witness, and although it was prejudicial, the court offered to give a curative instruction to the jury, which defense counsel declined. Therefore, the district court did not abuse its discretion by denying the motion for a mistrial.

Lastly, defendant contended that the district court’s revocation of his probation must be reversed because the district court did not adhere to the applicable statutory requirements. There was not sufficient evidence that defendant waived his right to be advised by the court through counsel, or that he was advised of potential penalties before the probation revocation hearing. In addition, the district court revoked defendant’s probation without obtaining and considering treatment and monitoring recommendations from defendant’s probation officer or treatment provider, as required by statute. Therefore, the district court’s revocation of defendant’s probation was reversed.

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

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Trial Court Within Discretion to Deny Mistrial Based on Defense Counsel’s Inappropriate Remarks

The Colorado Court of Appeals issued its opinion in Acierno v. Garyfallou, MD on Thursday, June 16, 2016.

Medical Malpractice—Mistrial—Prosecutorial Misconduct—Ex Parte—Witness—Physician–Patient Privilege—Costs—CRS § 13-16-105.

Acierno filed a medical malpractice suit against Dr. Garyfallou and other defendants. The other defendants settled, and the jury returned a verdict in favor of Dr. Garyfallou. Plaintiff appealed and defendant cross-appealed the trial court’s order denying his motion for costs.

On appeal, Acierno asserted that defense counsel’s (1) misstatement of the trial court’s jury instruction on the applicable standard of care and (2) improper comments related to “runaway juries, runaway verdicts, and adverse media” warranted a mistrial. Here, the jury had a written copy of the correct instructions, the judge carefully considered Acierno’s request for a mistrial, and the court took remedial actions by admonishing defense counsel in front of the jury and advising the jury to disregard defense counsel’s statements. Therefore, the court sufficiently addressed any prejudice to Acierno and a mistrial was not warranted. In addition, the trial court did not abuse its discretion in denying the motion for new trial (1) based on changed testimony by prosecutorial witnesses, because this argument was not preserved by a contemporaneous objection; and (2) based on Acierno’s contention that a defense witness violated the court’s sequestration order, because the trial court found there was no violation and Acierno did not point to anything in the record establishing that the court’s finding was clearly erroneous.

Acierno also contended that the trial court erred when it allowed defense counsel to meet ex parte with the radiologist who interpreted Acierno’s MRI and MRA results. The trial court did not abuse its discretion because it confined defendant’s informal questioning to matters not subject to physician–patient privilege and Acierno did not assert that residually privileged information was divulged.

Acierno also contended that the trial court erred in denying his motion for directed verdict on Dr. Garyfallou’s defense of pro rata liability. Because the jury concluded that the doctor did not breach the applicable standard of care, this error was harmless.

Dr. Garyfallou contended, and the Court of Appeals agreed, that the trial court erred in denying his motion for costs against Acierno. Such an award is mandatory under CRS § 13-16-105.

The judgment was affirmed, the order denying costs was reversed, and the case was remanded.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Deferred Judgment Is Not Final for Purposes of Appeal

The Colorado Court of Appeals issued its opinion in People v. Sosa on Thursday, June 16, 2016.

Deferred Judgment—Crim. P. 35(c)—Withdrawal of Guilty Plea—Crim. P. 32(d)—Final Judgment—Appeal.

Defendant entered into a plea agreement to a deferred judgment. Later, he filed a motion to withdraw his guilty pleas under Crim. P. 32(d) and 35(c).

Regarding the appeal of the district court’s denial of defendant’s Crim. P. 32(d) motion, no final, appealable judgment exists because defendant’s deferred judgment has not yet been revoked and he has not been sentenced. Therefore, defendant’s appeal of his Crim. P. 32(d) motion was dismissed, without prejudice, for lack of jurisdiction.

Regarding his appeal of the denial of his Crim. P. 35(c) motion, defendant raised no argument on appeal. Therefore, this argument was not considered and the district court’s order denying defendant’s Crim. P. 35(c) motion was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 6/22/2016

On Wednesday, June 22, 2016, the Tenth Circuit Court of Appeals issued one published opinion and two unpublished opinions.

United States v. Hall

Steele v. Anglo Gold Ashanti

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