August 16, 2018

Archives for June 11, 2018

Mandatory Continuing Legal and Judicial Education Age Requirements Changing July 1, 2018

On March 15, 2018, the Colorado Supreme Court adopted changes to the Colorado Rules of Civil Procedure affecting mandatory continuing legal and judicial education. One of the changes that will have the broadest application is a change to the age requirements for mandatory continuing legal and  judicial education.

The current rules specify that attorneys who attain the age of 65 years are no longer required to obtain or track CLE credits. The rule change extends that age to 72 years, and attorneys who are currently exempt from tracking CLE credits due to their age will once again be required to comply with CLE reporting requirements until they attain 72 years of age.

The Office of Attorney Regulation Counsel released a helpful guide on how to proceed if you are between the ages of 65 and 72 years:

How will this work?

If you are currently exempt from mandatory CLE based on your age and are not yet 72 years old, you will again become subject to the requirements and your compliance period begins this year and ends December 31, 2021. For those of you who will be turning 65 this year or in 2019 and have not yet become exempt, your compliance period will automatically be extended to December 31, 2021. Once you turn age 72, you will again become exempt from the CLE requirements.

What happens if you turn age 72 before December 31, 2021?

You will become exempt during your first re-entry compliance period, and therefore it is up to you to what extent you wish to enter your CLE activities on your official transcript. Additionally, pursuant to the new rule, even once you become exempt, you will continue to be able to enter your CLE activities on your official transcript. This will allow you to continue to track your CLE, even though not required, for your own use. The Office of Continuing Legal and Judicial Education will be making changes to your CLE record over the next few months and will be ready for the July 1, 2018 effective date, so that you may begin entering your CLE credits online at that time.

CBA-CLE Classic Pass

CBA-CLE has developed a “Classic Pass” geared exclusively toward attorneys who were previously exempt from CLE reporting requirements. The Classic Pass is a subscription service that will allow attorneys to fulfill their CLE requirements for a reasonable price. For more information about the Classic Pass or to order your subscription, please contact Mary Dilworth at mdilworth@cobar.org.

Colorado Court of Appeals: Attempted Murder Conviction Must Be Vacated When Arising from Same Event as Actual Murder Conviction

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

Criminal Law—Murder—Accessory—Fifth Amendment—Double Jeopardy—Undisclosed Alibi Defense—Mistrial—Testimonial Hearsay Statements—Doctrine of Forfeiture by Wrongdoing—Residual Hearsay Exception—Complicity Jury Instruction—Lesser Included Offense—Transferred Intent.

Jackson and his friends were members of “Sicc Made,” a subset of the Crips gang. Jackson drove a vehicle to the apartment of E.O., a rival gang member, with the intention of shooting E.O. Victim Y.M. lived in E.O.’s apartment complex. Believing Y.M. was E.O., another “Sicc Made” gang member got out of Jackson’s car, walked over to an SUV, and shot Y.M. twice in the head, killing him instantly. When they realized they had killed the wrong man, the men turned and fired numerous shots into E.O.’s apartment. Defendant was convicted of first degree murder after deliberation, attempted first degree murder after deliberation, attempted first degree murder with extreme indifference, conspiracy to commit first degree murder, and accessory.

On appeal, Jackson first challenged the court’s decision to declare a mistrial after cross-examination of his ex-wife revealed an undisclosed alibi defense. A defendant may not elicit alibi evidence, absent good cause, without first complying with the Crim. P. 16(II)(d) alibi disclosure requirements. It is undisputed that the defense provided no notice to the prosecution of the alibi, despite receiving it a month before trial. The defense decided not to disclose the new information but to elicit it on cross-examination in violation of Rule 16. Further, the trial court carefully considered the parties’ arguments and its available options and was in the best position to assess the prejudicial impact. The trial court did not abuse its discretion in deciding to declare a mistrial.

Jackson next contended that the trial court erroneously admitted testimonial hearsay statements of uncharged co-conspirator Walker to law enforcement officials under the doctrine of forfeiture by wrongdoing and under the CRE 807 residual hearsay exception. However, (1) the prosecution proved by a preponderance of the evidence that Jackson forfeited his right to confront Walker because he caused Walker’s refusal to testify, and (2) the trial court did not abuse its discretion in admitting Walker’s statements under CRE 807.

Jackson also contended that the complicity instruction was erroneous. The jury instruction defining first degree murder after deliberation, when read with the complicity instruction, accurately required the jury to find that Jackson was aware that the shooter acted after deliberation and with the intent to cause the death of the victim. Accordingly, there was no error in the complicity instruction.

Finally, Jackson contended that the trial court erred in imposing two convictions and consecutive sentences for his attempted murder convictions. When a defendant attempts to deliberately kill one person but mistakenly kills a different person and is convicted of both the attempted murder of the intended victim and the actual murder of the unintended victim, the attempted murder conviction must be vacated because it is a lesser included offense of the murder conviction. Here, the undisputed evidence shows that the shooter and Jackson intended to kill E.O. and mistakenly killed Y.M., believing him to be E.O. Under the doctrine of transferred intent, Jackson’s specific intent to kill E.O. transferred to Y.M. and made him criminally liable for Y.M.’s death. Therefore, the attempted murder of E.O. after deliberation is a lesser included offense of the murder after deliberation of Y.M. The trial court’s error was obvious, substantial, and undermined the fairness of the proceeding.

The convictions of first degree murder after deliberation, attempted first degree murder with extreme indifference, conspiracy to commit first degree murder, and accessory were affirmed. The judgment for attempted first degree murder after deliberation was vacated and the case was remanded for correction of the mittimus.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Crim. P. 32(d) Does Not Allow Withdrawal of Pleas of Not Guilty by Reason of Insanity

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

Criminal Procedure—Not Guilty by Reason of Insanity—Crim. P. 32(d)—Withdrawal of Guilty Plea—C.R.S. § 16-8-115.

The prosecution charged defendant with one count of criminal attempt to commit unlawful sexual contact and one count of indecent exposure. These charges were based on events that occurred while defendant was a patient at a psychiatric ward. Defense counsel entered an insanity plea on defendant’s behalf over his objection. The court ultimately accepted defendant’s insanity plea, and it found defendant not guilty by reason of insanity. Defendant spent almost 10 years at the Mental Health Institute. Shortly after being placed in the community, defendant filed a Crim P. 32(d) motion to withdraw his insanity plea, which the trial court denied.

On appeal, defendant argued that the court erred by denying his Rule 32(d) motion. A request to withdraw a plea under Rule 32(d) applies only to guilty pleas and nolo contendere pleas, not to pleas of not guilty by reason of insanity. Further, an insanity plea should not be treated as the equivalent of a guilty plea for purposes of Rule 32(d). Rule 32(d) did not apply to defendant’s request to withdraw his insanity plea.

The order was affirmed.

Summary provided courtesy of Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 6/8/2018

On Friday, June 8, 2018, the Tenth Circuit Court of Appeals issued two published opinions and two unpublished opinions.

Jones v. Bowers

Jones v. Propstone, LLC

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