July 20, 2018

Archives for November 4, 2016

Rule Change 2016(11) Adopted, Amending Colorado Rules of Professional Conduct

On Thursday, November 3, 2016, the Colorado Supreme Court adopted Rule Change 2016(11), affecting the Colorado Rules of Professional Conduct. The rules affected are Rule 1.15A, “General Duties of Lawyers Regarding Property of Clients and Third Parties,” Rule 1.15B, “Account Requirements,” and Rule 1.15D, “Required Records.”

A new comment [7] was added to Rule 1.15A to define “reasonable efforts” to find owners of property and explain that it is context-specific. The comment lists several potential scenarios and what would constitute “reasonable efforts” in those cases.

Rule 1.15B was changed by the addition of subsection (k), which also addresses procedures a lawyer should follow when he or she has unclaimed funds in his or her COLTAF account.

Rule 1.15D was changed by the addition of a new subsection (a)(1)(C), which specifies procedures for remitting unclaimed funds to COLTAF.

For a redline and clean version of the rule change, click here. For all of the Colorado Supreme Court’s adopted and proposed rule changes, click here.

Colorado Court of Appeals: Each Animal Subject to Neglect or Abuse Constitutes Separate Cruelty Count

The Colorado Court of Appeals issued its opinion in People v. Harris on Thursday, November 3, 2016.

After a neighbor called the Humane Society of the Pikes Peak Region to report a dead horse near his property line, Sergeant Stephanie Garcia and a fellow officer investigated Harris’s property and discovered several emaciated animals. Sergeant Garcia sought and received a search warrant (the horse warrant) for Harris’s ranch to investigate animal cruelty. While the animal protection agents executed the search warrant with accompanying law enforcement officers, they found a recently deceased donkey who appeared severely underfed, and also discovered several malnourished dogs. They sought and received another warrant for the dogs, since the horse warrant was limited in scope to livestock. Harris was charged with fifteen counts of cruelty to animals (second offense) and two counts of needlessly killing an animal.

About two weeks later, the neighbor reported that Harris had dragged three dead horses onto his property. The neighbor later observed Harris and her brother attempting to drag the horses back onto her own property. Sergeant Garcia contacted Harris and entered her property with permission. She observed two more dead horses. Harris was charged in a separate case with aggravated cruelty to animals for needlessly killing the five horses. The cases were consolidated for trial.

Several witnesses testified at trial, including an expert in veterinary medicine who was present during the search. All of the prosecution’s witnesses testified that the animals appeared severely malnourished and there was no evidence of food on the property. Harris’s theory of defense was that the water had a high sulfate level and the animals were malnourished due to the high sulfate. Harris insisted she was feeding her horses and justified the lack of food by saying she procured hay from a neighbor on a daily basis. The jury convicted Harris on all counts. In a bifurcated proceeding, the court found that the fifteen animal cruelty convictions counted as a second offense due to Harris’s 2007 convictions for misdemeanor animal cruelty. She was sentenced to concurrent 10-year sentences on all counts in the first case and concurrent three-year counts on the aggravated cruelty counts in the second case. She appealed.

In district court, Harris moved to suppress all evidence from the search on the grounds that animal protection agents are not statutorily authorized to obtain livestock warrants and both warrants lacked probable cause. The court of appeals agreed that the animal protection agent exceeded her authority in obtaining the warrants. Under the statute, only government agents are authorized to investigate livestock abuse. Because the animal protection agent was employed by a private nonprofit corporation, she was not authorized to apply for a livestock warrant. The court, however, found that the statutory deficiency did not rise to the level of a constitutional deficiency. To be valid under the United States and Colorado Constitutions, a warrant must have been issued by a neutral magistrate, those seeking the warrant must have demonstrated probable cause, and the warrant must describe with particularity the things to be seized. In this case, the warrants at issue met all three requirements. Therefore, the exclusionary rule did not apply because there was no constitutional violation.

Harris next contended that the animal cruelty was one continuous act, so she should have been charged with only one count of animal cruelty. The court noted that this argument turned on whether the statutory language contemplated animals as property or as sentient beings capable of feeling pain. The court evaluated the history of animal cruelty laws and found that there was a shift from considering animals as property to recognizing them as sentient beings. The court then analyzed the statutory language and found that because the language considered “an animal” or “any animal,” charging each act of cruelty separately was permissible.

Harris raised several other points of error, which the court addressed and rejected in turn. The court of appeals affirmed the convictions and sentences.

Tenth Circuit: Unpublished Opinions, 11/3/2016

On Thursday, November 3, 2016, the Tenth Circuit Court of Appeals issued no published opinion and four unpublished opinions.

United States v. Washington

Wilson v. Wichita State University

United States v. Munoz

Carbajal v. Swan

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