July 20, 2019

Archives for March 28, 2018

Colorado Court of Appeals: District Court Erred by Terminating Parental Rights Without Establishing Treatment Plan

The Colorado Court of Appeals issued its opinion in People in Interest of B.C. on Thursday, March 22, 2018.

Dependency and Neglect—Required Findings—Termination of Parental Rights—Appropriate Treatment Plan.

In this dependency and neglect proceeding, mother admitted that the child’s environment was injurious to his welfare and stipulated to an adjudication. She also stipulated to a preliminary treatment plan, but no dispositional hearing was held. Based on the stipulation, the trial court entered an order adjudicating the child dependent and neglected. The court further ordered the Pueblo County Department of Social Services to submit a formal treatment plan within 20 days that would be adopted and made an order of the court if no objections were filed. There was no finding that the plan was “appropriate.” Mother did not object to the submitted treatment plan.

The Department later moved to terminate mother’s parental rights. Mother objected and asserted she was in compliance with the treatment plan. Approximately a year after the petition was filed, following a contested hearing, the court entered judgment terminating mother’s parental rights. The court found that mother had not complied with the treatment plan.

On appeal, mother contended that the trial court erred by not conducting a dispositional hearing or adopting a formal treatment plan that was found to be appropriate. C.R.S. § 19-3-508(1) requires the court to “approve an appropriate treatment plan,” and C.R.S. § 19-3-604(1)(c)(I) requires a finding that “an appropriate treatment plan approved by the court has not been reasonably complied with” before parental rights are terminated. Here, there was no dispositional hearing, and the trial court did not approve an appropriate treatment plan nor make a finding that the proposed plan was appropriate.

The order was reversed and the case was remanded for further proceedings.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Amendment of Information to Add Crime of Violence Designation would Require Proof of Additional Element and Carry Harsher Sentence

The Colorado Court of Appeals issued its opinion in People v. Palmer on Thursday, March 22, 2018.

Murder—Arson—Amendment of Information—Crime of Violence—Crim. P. 7(e)—Discovery Violation.

When Palmer found out that the man she had been dating was having sex with another woman, she set fire to a bag of his things outside the front door of his apartment. The fire spread from the bag, and soon the entire apartment complex was ablaze. Palmer was charged with five counts of attempted first degree murder and one count of first degree arson. After the trial began, the trial court granted the prosecution’s motion to amend the information to add a crime of violence designation. The amended information alleged that Palmer committed arson by means of a deadly weapon (a lighter and lighter fluid). Because of the amendment, Palmer faced a longer prison sentence if convicted. The jury acquitted Palmer of attempted murder but convicted her of first degree arson and the lesser nonincluded offense of fourth degree arson. The jury also found that first degree arson was a crime of violence because Palmer used a deadly weapon.

On appeal, Palmer contended that the trial court abused its discretion by allowing the prosecutor to amend the information. She argued that the amendment was one of substance and thus had to be made before trial. Crim. P. 7(e) permits amendments only as to form once trial has begun and provides that the trial court may reject an amendment during trial if it charges an additional or different offense or prejudices the defendant’s substantial rights. Here, the amendment required proof of an additional element, use of a deadly weapon, and carried a harsher minimum and maximum sentence, so the trial court abused its discretion in granting the motion to amend once trial was underway.

Palmer also argued that the trial court should have granted her motion for mistrial because the prosecution failed to timely disclose two fire investigators’ reports. During testimony, the prosecution discovered and promptly disclosed two previously undisclosed reports from the fire lieutenants. The trial court found that the discovery violation was inadvertent. Instead of granting a mistrial, the trial court prohibited the prosecution from calling a second fire lieutenant and permitted Palmer to re-examine the first fire lieutenant based on the newly discovered information. The trial court did not abuse its discretion in denying Palmer’s motion for mistrial and imposing other remedies for the discovery violation.

The sentence was reversed and the case was remanded for resentencing. The judgment was affirmed in all other respects.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Self-Defense Instruction Warranted if Evidence Shows Defendant Acted in Self-Defense

The Colorado Court of Appeals issued its opinion in People v. Wakefield on Thursday, March 22, 2018.

Second Degree Murder—Self-Defense—Jury Instruction—Voluntary Statements—Photographic Evidence.

Defendant and the victim were longtime friends, and the victim was visiting defendant from out of state. The victim and defendant argued and were involved in a series of increasingly violent physical fights. Defendant shot the victim, killing him. Right after the shooting defendant indicated to two people that he had acted in self-defense. Defendant testified at trial that when the victim stepped forward and reached for the shotgun defendant was holding, defendant pulled the gun up and away from the victim’s reach, and the gun “went off.” According to defendant, he thought that the victim was going to grab the gun and hurt him with it. Defendant maintained that he did not intend to shoot or hurt the victim. Defendant was tried for first degree murder, but was convicted of the lesser included offense of second degree murder.

On appeal, defendant first argued that the trial court erred by declining to give his tendered jury instruction on self-defense. Article II, section 3 of the Colorado Constitution recognizes the right of a person to act in self-defense, and under binding case law, when a defendant presents at least a scintilla of evidence in support of a self-defense instruction, the court must instruct the jury on self-defense. Here, defendant’s claim of accident in the course of self-defense was not so inconsistent as to deprive him of the right to have the jury instructed on self-defense, and counsel’s tendering of the self-defense instruction was sufficient to preserve the issue for appeal. The trial court’s error warrants reversal of the conviction.

Defendant also argued that the trial court erred by declining to suppress statements he made to both a private security guard and the police following his apprehension. The trial court did not err in declining to suppress the statements under Miranda v. Arizona because they were (1) made to a private security guard and not subject to Miranda; (2) based on Miranda’s public safety exception; or (3) volunteered and therefore not the product on an interrogation. However, the trial court did not make the required findings as to whether defendant’s statements to the police warranted suppression because of defendant’s assertion that the statements were involuntary.

Defendant further argued that the trial court erred by admitting photographs showing a large amount of marijuana in his apartment. Because the probative value of this evidence was substantially outweighed by the danger of unfair prejudice, it should have been excluded under CRE 403, and the court erred in admitting the photos.

The judgment of conviction was reversed and the case was remanded for a new trial. On remand, the court must conduct an evidentiary hearing on the voluntariness and admissibility of defendant’s statements to the police officers, and photos depicting marijuana should be excluded from evidence.

Summary provided courtesy of Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 3/27/2018

On Tuesday, March 27, 2018, the Tenth Circuit Court of Appeals issued no published opinion and three unpublished opinions.

Lindsay Manor Nursing Home, Inc. v. Commissioner of Internal Revenue

United States v. Jimenez

United States v. Molina

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