December 11, 2018

Archives for June 8, 2018

Colorado Court of Appeals: Trial Court Committed Structural Error by Excluding Underage Spectators from Trial

The Colorado Court of Appeals issued its opinion in People in Interest of G.B. on Thursday, May 31, 2018.

Juvenile Delinquency—Sufficiency of the Evidence—Sexual Assault—Right to a Public Trial.

In this juvenile delinquency proceeding, a jury convicted 16-year-old G.B. of offenses that would, if committed by an adult, constitute felony sexual assault against the 15-year-old victim. The trial court adjudicated G.B. delinquent and sentenced him to the custody of the Division of Youth Corrections.

On appeal, G.B. challenged the sufficiency of the evidence that he knew the victim was incapable of appraising the nature of her conduct. However, the record evidence, including testimony about the victim’s drug and alcohol use and her testimony that she wasn’t able to move on her own and didn’t remember certain events from the night in question until she had nightmares and flashbacks months later, was sufficient to support a conclusion by a reasonable jury that G.B. knew the victim was incapable of appraising the nature of her conduct.

G.B. also contended that the trial court violated his right to a public trial by excluding, over his objection, all spectators during his cross-examination of the sexual assault nurse examiner, and by excluding all spectators under 18 from a significant portion of the trial. The trial court’s closure of the courtroom to all spectators under 18 was broader than necessary to achieve the trial court’s legitimate interest in protecting young children from exposure to age-inappropriate evidence. Further, the trial court failed to consider reasonable alternatives when it closed the courtroom to all spectators under 18. The trial court committed structural error by excluding from two days of trial all spectators under 18.

The judgment was reversed and the case was remanded for a new trial.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: One-on-One Voice Identification Procedure Overly Suggestive and Not Protected by Miranda

The Colorado Court of Appeals issued its opinion in People v. Jaquez on Thursday, May 31, 2018.

Criminal Law—Voice Identification—Fifth Amendment—Custodial Interrogation—Agent of the State—Miranda.

The victim of an armed robbery was directed by the police to speak with defendant while he was in custody to see if defendant would say anything to the victim. At the time, defendant was handcuffed in the backseat of a police vehicle with the window closest to him rolled down. Defendant was not warned of his Fifth Amendment rights under Miranda v. Arizona. Unlike a typical voice identification procedure, defendant was not merely asked to repeat the words heard by the victim during the robbery. Instead, defendant and the victim had a brief conversation during which defendant made statements that were nearly identical to the statements made by the robber. The victim identified defendant as the robber and based on this identification, he was arrested and charged with armed robbery. Defendant moved to suppress both the out-of-court voice identification and the statements he made during the voice identification procedure. The trial court denied the motion. The statements were admitted at defendant’s criminal trial as substantive evidence of his guilt. Defendant was convicted as charged.

On appeal, defendant contended that the trial court violated his Fifth Amendment right against self-incrimination when it admitted the statements he made to the clerk during his voice identification. Here, the statements were made during a custodial interrogation, and the clerk was acting as an agent of the state because he was acting at the specific direction of law enforcement officials. Further, the words spoken by defendant were not merely a voice exemplar used to identify him but were volitional statements used by the prosecution as substantive evidence of his guilt. Therefore, the admission of defendant’s statements made during a one-on-one voice identification procedure not preceded by Miranda warnings violated his Fifth Amendment right against self-incrimination. This error was not harmless beyond a reasonable doubt.

The conviction was reversed and the case was remanded for a new trial.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Including Landowners in Special District Violated Owners’ Rights to Due Process

The Colorado Court of Appeals issued its opinion in Landmark Towers Association, Inc. v. UMB Bank, N.A. on Thursday, May 31, 2018.

Special District—Taxation—Taxpayer’s Bill of Rights—Due Process—Injunction—Uniform Tax Clause of the Colorado Constitution—Mill Levy—Misappropriation of Bond Sales.

A developer created the Marin Metropolitan District, a special district, to comprise two separate projects, the Landmark Project and the European Village Project. The developer created the District as a means to use owners of condominiums in the Landmark Project to pay for improvements in the European Village Project. As part of his application to Greenwood Village for approval of the District, the developer submitted a Service Plan. Using dubious means and without notice to the Landmark Project buyers, the developer and his associates then voted in an election to organize the District and approve bonds and “taxes” to pay for the bonds. The District sold bonds to Colorado Bondshares. UMB Bank, N.A. held the bond sales proceeds in trust. Among other things, the Service Plan capped the debt service levy for the bonds at 49.5 mills, but the District imposed a levy of 59.5 mills. The developer drew on the funds, but the European Village Project infrastructure was never built.

Landmark Towers Association, Inc., a homeowners association, sued UMB, Bondshares, and the District (collectively, defendants), challenging the creation of the District. Landmark asserted that the special district can’t levy Landmark owners’ properties to pay for bonds issued by the special district, which funded improvements on other property, because the election organizing the special district, approving the bonds, and approving the levies paying for the bonds violated the Taxpayer’s Bill of Rights (TABOR) and the Landmark owners’ rights to due process. The district court ruled that the election was illegal; Landmark is entitled to injunctive relief preventing the District’s levy; the District’s mill levy rate exceeds the legal limit; Landmark owners are entitled to a refund of excessive assessments; and Landmark owners are entitled to a “refund” of misappropriated bond sale proceeds. It enjoined the District from trying to collect levies from the Landmark owners and ordered that the owners may recover bond proceeds misappropriated by the District’s creator under TABOR.

On appeal, defendants asserted that the district court erred in finding that including the Landmark Project in the District violated the Landmark owners’ rights to due process. Specifically, defendants argued that the levy was a tax, and property subject to a tax does not need to receive any benefit in return for the tax payments. Colorado law is clear that imposing a special assessment on property that doesn’t specially benefit from the funded improvements violates the due process rights of those property owners. Here, the Landmark project was included in the District only to use it as a payment source for improvements to other property, and Landmark receives no benefit from those improvements. Further, the “tax” is in substance a special assessment because it doesn’t defray the general expenses of government but funds a private venture’s infrastructure. Because the Landmark owners derive no benefit from the improvements, the special assessments violated the owners’ rights to due process.

Defendants also argued that the district court erred in weighing the equities in imposing the injunction. The district didn’t abuse its discretion in balancing the equities.

Defendants further contended that the injunction violated the Uniform Tax Clause of the Colorado Constitution because it means that only some of the property in the district can be taxed. First, it is undisputed that defendants raised this issue for the first time in their motion for reconsideration, which was too late. Second, the Uniform Tax Clause applies only to taxes, not special assessments. Third, the injunction doesn’t obligate the District to do anything with respect to other persons or property outside the Landmark Project. Fourth, the violation of the Landmark owners’ rights to due process under both the U.S. and Colorado Constitutions entitles them to the injunctive relief they request, as a matter of law. Therefore, the district court correctly ruled on this issue.

Defendants also contended that the district court erred in ruling that the District may not levy property taxes in excess of 50 mills. The mill levy rate imposed by the District exceeds that allowed by the statutorily required service plan approved by the City of Greenwood Village. Furthermore, it did not comply with the District’s Service Plan or the financing plan. Therefore, the 59.5-mill-rate levy was illegal.

Finally, defendants contended that the district court erred in ruling that the misappropriation of bond sale proceeds violated TABOR and in ordering a refund of those proceeds because the bond proceeds aren’t “revenue.” The bond proceeds at issue are borrowed funds, not “revenue” within the meaning of the relevant TABOR provision. Further, they aren’t subject to refund because they were lent to the District by a private, outside entity and not collected from property owners. Therefore, the owners may not recover bond proceeds misappropriated by the District’s creator under TABOR. Nor may the owners recover those misappropriated funds under other provisions of the Colorado Constitution because the District is not subject to those provisions. Therefore, the district court erred in ordering refunds of the misappropriated money.

The portion of the judgment ordering TABOR refunds was reversed. The remainder of the judgment was affirmed and the case was remanded.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Announcement Sheet, 6/7/2018

On Thursday, June 7, 2018, the Colorado Court of Appeals issued no published opinion and 33 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, 6/7/2018

On Thursday, June 7, 2018, the Tenth Circuit Court of Appeals issued no published opinion and five unpublished opinions.

Maldonado Perez v. Archuleta

United States v. Thompson

Dulany v. Brennan

United States v. Michaelis

McLemore v. Darr

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