November 18, 2018

Archives for August 2018

Colorado Court of Appeals: Assessor Authorized to Reevaluate Property in Non-Tax Year if Original Assessment Incorrect when Originally Done

The Colorado Court of Appeals issued its opinion in Thibodeau v. Denver County Board of Commissioners on Thursday, August 23, 2018.

Revaluation of Taxes—Incorrect Original Valuation—Equal Protection—Colorado Constitution’s Uniformity Clause.

Thibodeau purchased a residence in 2013. Earlier that year, the property was valued at $803,800 for ad valorem tax purposes. In 2014, it was revalued at $1,169,700. Thibodeau unsuccessfully protested the increase with the City and County of Denver Assessor’s Office before petitioning for abatement from the Denver County Board of Commissioners, sitting as the Denver County Board of Equalization (BOE). He argued that it was error to reassess the property in an intervening year because no unusual condition existed. The BOE rejected his claim and upheld the reassessment.

Thibodeau appealed to the Board of Assessment Appeals (BAA), which concluded that the mischaracterization of the property’s condition as average, rather than good, had led to an incorrect 2013 assessment, and therefore the assessor was permitted to correct the assessment in the intervening year.

On appeal, Thibodeau argued that the BAA erred in upholding the reassessment because C.R.S. § 39-1-104(11)(b)(1) only allows redeterminations in intervening years when unusual conditions exist, and no unusual conditions existed. C.R.S. § 39-1-104(11)(b)(1) authorizes assessors to correct incorrect property assessments in intervening years to set the value at what it would have been set in the assessment year had the mistake not occurred. Further adjustments cannot be made absent proof of an unusual condition. Here, the assessor’s records indicated that the property had not been remodeled since its construction in 1938. But after the assessment was completed in 2013, the property was listed for sale with pictures and a description showing renovations and remodeling. Thibodeau did not present evidence that the BOE’s corrected value was incorrect. Conversely, there was competent evidence that the original assessment was incorrect due to a misidentification of the condition of the property. Accordingly, the assessor was permitted and required to correct the assessment in 2014.

Thibodeau also argued that the BOE’s off-cycle reassessment violated the Equal Protection Clause of the U.S. Constitution. Here, no fundamental right or suspect class was implicated. The assessment was based on discovery of an incorrect determination of the property’s condition, not because of the property’s sale, and similarly situated properties also undergo the sales verification process. The court of appeals found no equal protection concerns.

Thibodeau further argued that the revaluation violated the Colorado Constitution’s Uniformity Clause. The protections of this clause are coextensive with the federal Equal Protection Clause, and because there was no equal protection violation, this argument failed as well.

The order was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Evidence Viewed in Light Most Favorable to Prosecution Sufficient to Affirm Restitution Order

The Colorado Court of Appeals issued its opinion in People v. Barbre on Thursday, August 23, 2018.

Criminal Law—Sentencing—Restitution—Burden of Proof—Preponderance of the Evidence.

Defendant stole several types of prescription pain medication while working at a pharmacy. She pleaded guilty to one count of theft and one count of possession of a controlled substance occurring over a nearly year-long period. The district court sentenced her to two years of probation and ordered restitution.

On appeal, defendant challenged the amount of restitution, contending that the prosecution did not sufficiently prove that she caused a loss in the amount of $10,553.80. Here, the court specifically relied on defendant’s admission that she had stolen thousands of pills over a one-year period and the pharmacy’s automated system for tracking inventory. Viewed in the light most favorable to the prosecution, the evidence was sufficient.

The order was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Announcement Sheet, 8/30/2018

On Thursday, August 30, 2018, the Colorado Court of Appeals issued no published opinion and 38 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, 8/30/2018

On Thursday, August 30, 2018, the Tenth Circuit Court of Appeals issued no published opinion and six unpublished opinions.

Valley Forge Insurance Co. v. ALK Enterprises, LLC

Sutton v. Corrections Corp. of America

Talton v. Bryant

United States v. Sadler

United States v. Scott

Mayfield v. Martin

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

The Matthew Effect

“For to everyone who has will more be given, and he will have abundance;
but from him who has not, even what he has will be taken away.”

The Gospel of Matthew 25:29, Revised Standard Version

Economists call it the Matthew Effect or the Matthew Principle. Columbia sociologist Robert K. Merton used the former when he coined the term[1] by reference to its Biblical origins.[2] The more pedestrian version asserts that the rich get richer while the poor get poorer.

According to the Matthew Effect, social capital is better caught than taught, better inherited than achieved. That notion is borne out by current economic and demographic data[3] showing that the only children with a statistically relevant shot at experiencing a better standard of living than their parents are the ones born with a silver spoon in their mouths — or, as David Graeber says in Bullshit Jobs, the ones “from professional backgrounds” where they are taught essential social capital mindsets and skills “from an early age.”[4]

Statistics are susceptible to ideological manipulation, but bell curves conceptualize trends into observable laws of societal thermodynamics. The Matthew Effect bell curve says it’s harder to get to the top by following the Horatio Alger path: you’re starting too many standard deviations out; your odds are too low. On the other hand, if you start in the center (you’re born into the top), odds are you’ll stay there.

That might depend, however, on how long your forebears have been members of the club. Globetrotting wealth guru Jay Hughes has spoken and written widely of the concept of “shirt sleeves to shirt sleeves in three generations.” According to the aphorism, if the first generation of a family follows the Horatio Alger path to wealth, there’s a 70% chance the money will be gone by the end of the third generation, which means the social capital will be gone as well. That first generation might defy the odds through hard work and luck, but odds are they won’t create an enduring legacy for their heirs.

My own law career was an exercise in another folk expression of the Matthew Effect: “you can take the boy out of the country but you can’t take the country out of the boy.” (No, that’s not me in the photo — I just thought it made the point nicely.) My career finally hit its stride when I created a small firm serving “millionaire next door” clients — farmers, ranchers, and Main Street America business owners who became financially successful while remaining in the social milieu where they (and I) began. Nearly all of those families created their wealth during the post-WWII neoliberal economic surge, and are now entering the third generation. I wonder how many are experiencing the shirt sleeves aphorism.

Curiously, my transition out of law practice was also dominated by social capital considerations — in particular, a social capital misfiring. I had a big idea and some relevant skills (i.e., some relevant human capital — at least other people thought so), but lacked the social capital and failed to make the personal transformation essential to my new creative business venture.[5]

In fact, it seems the Matthew Effect might be a larger theme in my life, not just my legal career. In that regard, I was surprised to find yet another one of my job stories in Bullshit Jobs. This one was about a townie who took a job as a farm laborer. His job included “picking rocks,” which involves tackling a rocky field with a heavy pry bar, sledge hammer, pick axe, spade, and brute strength, in an effort to remove the large rocks and make it tillable. I’d had that job, too. I was a teenager at the time, and it never occurred to me that it might be “completely pointless, unnecessary, or pernicious” (Graeber’s definition), which is how the guy in the book felt about it. In fact, when I told my parents about my first day of picking rocks over dinner, my dad was obviously so proud I thought he was going to run out and grill me a steak. Obviously I’d made some kind of rite of passage.

Picking rocks is just part of what you do if you work the land, and there’s nothing meaningless about it. I enjoyed it, actually — it was great training for the upcoming football season. I can scarcely imagine what my law career and life might have been like if I’d felt the same way about my first years of legal work as I did about picking rocks.

The Matthew Effect has far-reaching social, economic, legal, and ethical implications for the legal profession, where social capital is an important client- and career-development asset. Next time we’ll look at another lawyer who, like David Boies, rose from humble origins to superstar status, and whose story brings a whole new set of upward mobility issues to the table.


[1] Merton was originally trying to describe how it is that more well-known people get credit for things their subordinates do — for example, professors taking credit for the work of their research assistants — the professors enriching their credentials at the expense of their minions’ hard and anonymous work. Merton might just as well have been talking about law partners taking credit for the work of paralegals, law clerks. and associates.

[2] As for why “Matthew” when the other Synoptic Gospels (Mark and Luke) have the same verse, I suspect that’s in part because Matthew is the first book in the New Testament canon, but it may also substantiate a derivative application of Merton’s law made by U of Chicago super-statistician Stephen Stigler, known as the Law of Eponymy, which holds that “No scientific discovery is named after its original discoverer.” I.e., later arrivals collect the accolades the” original discoverer” never did. In that regard, Mark’s gospel is believed to have been written first, with Matthew and Luke’s coming later and deriving from it. That would make Mark the true original discoverer. That this economic phenomenon is not called the “Mark Effect” is therefore another example of Stigler’s law.

[3] See, e.g., the “Fading American Dream” graph and the “Geography of Upward Mobility in America” map in this NPR article.

[4] The phenomenon has been widely reported. See this study from Stanford and our trio to new Meristocrats from a few weeks back: Richard V. Reeves and his book Dream Hoarders and his Brookings Institute monograph Saving Horatio Alger (we looked at those last time). The second was philosopher Matthew Stewart, author of numerous books and a recent article for The Atlantic called The 9.9 Percent is the New American Meritocracy. The third was Steven Brill, founder of The American Lawyer and Court TV, author of the book Tailspin: The People and Forces Behind America’s Fifty-Year Fall—and Those Fighting to Reverse It and also the writer of a Time Magazine feature called How Baby Boomers Broke America.

[5] I’ve told that story elsewhere, and won’t repeat it here, but if you’re interested in more on this issue, a look at that particular social capital disaster might be illustrative. See my book Life Beyond Reason: A Memoir of Mania.

 

Colorado Court of Appeals: No Plain Error Occurred by Admitting Firearms After Pictures Admitted

The Colorado Court of Appeals issued its opinion in People v. Allgier on Thursday, August 23, 2018.

Criminal Law—Burglary—Possession of a Weapon by a Previous Offender—Evidence—Hearsay—Prosecutorial Misconduct.

During a burglary, several firearms were stolen. M.S., a suspect in the burglary, told police that he had seen defendant, a previous offender but not one of the burglars, in the back seat of a vehicle next to a box containing some of the stolen firearms. M.S. also said that the firearms might be found at an apartment associated with defendant. The police went to the apartment, seized three of the stolen firearms, and arrested defendant. A jury convicted defendant of possession of a weapon by a previous offender (POWPO).

On appeal, defendant argued that the trial court plainly erred in admitting into evidence the three firearms that were the basis for the POWPO charge, in addition to photographs of them. The prosecution is generally entitled to prove the elements of its case against a defendant by evidence of its own choice. Further, the firearms were accurately described in the photographs admitted into evidence, and defendant did not object to the photographs. Therefore, there was no error in admitting the firearms as the instrumentality of the crime.

Defendant also contended that the trial court erred in admitting hearsay statements of a witness, which improperly bolstered testimony. Here, the court allowed the detective who had interviewed M.S. about the burglary to testify as to that interview. The trial court sustained defendant’s objection to the detective’s more general statements about what M.S. had said, limiting the testimony to whether M.S. changed his story in any significant way. There was no risk of bolstering from this limited testimony.

Defendant further contended that the trial court plainly erred in allowing the prosecutor to mischaracterize the evidence and the law during closing argument. Here, the prosecutor’s statements were few in an otherwise lengthy summation and when read in conjunction with the prosecutor’s other statements, any error was not glaring.

Lastly, defendant contended that the aggregate impact of numerous errors denied his right to a fair trial. Here, the Court of Appeals found only unpreserved errors that were not plain. Accordingly, defendant was not deprived of a fair trial.

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Convictions for Introducing and Possessing Contraband Should Have Merged at Sentencing

The Colorado Court of Appeals issued its opinion in People v. Jamison on Thursday, August 23, 2018.

Criminal Law—Jury Instructions—Lesser Nonincluded Offense—Evidence—Prosecutorial Misconduct—Merger—Double Jeopardy—Possessing Contraband—Introducing Contraband by Making.

Jamison was an inmate at a Department of Corrections detention facility. During a random search of his cell, a corrections officer found an altered toothbrush behind Jamison’s mattress. The toothbrush had been sharpened at one end and a razor blade had been affixed to the other end. Jamison was found guilty of introducing contraband in the first degree and possessing contraband in the first degree.

On appeal, Jamison contended that the trial court erred in refusing to instruct the jury on the two lesser nonincluded offenses, second degree introducing contraband and second degree possession of contraband. However, there was no evidence that the altered toothbrush could cut fence or wire, which was needed to convict Jamison of either second degree offense. Thus, the trial court did not abuse its discretion in rejecting the defense-tendered instructions on the lesser nonincluded offenses.

Jamison also argued that the trial court erred in permitting the prosecutor to refer to the toothbrush as a dangerous instrument and to elicit testimony to the same effect. Although the prosecutor’s pervasive references to the toothbrush as a dangerous instrument were largely improper, there was no basis for reversal because the evidence against Jamison was overwhelming.

Finally, Jamison contended that his convictions for introducing contraband in the first degree and possessing contraband in the first degree should have merged at sentencing. First degree possession of contraband is a lesser included offense of first degree introducing contraband by making, and the convictions should have merged. The trial court erred in entering convictions for both offenses.

The conviction for introducing contraband in the first degree was affirmed. The conviction for possessing contraband in the first degree was vacated and the case was remanded for correction of the mittimus.

Summary provided courtesy of Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 8/29/2018

On Wednesday, August 29, 2018, the Tenth Circuit Court of Appeals issued three published opinions and three unpublished opinions.

United States v. Romero

Akothe v. Bear

Viking Insurance Co. of Wisconsin v. Baize

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

Colorado Court of Appeals: Defendant Forfeited Any Claim to Error for Failing to Object to Judge’s Spouse’s Jury Service

The Colorado Court of Appeals issued its opinion in People v. Richardson on Thursday, August 23, 2018.

Criminal LawEvidenceAttempted AssaultJudge’s Spouse as JurorDemonstrative EvidenceExpert Witness.

Sheriff’s deputies attempted to serve Richardson with an arrest warrant, which led to a police standoff. When officers deployed tear gas into the basement crawl space where Richardson was hiding, Richardson fired a gun at the police. Methamphetamine was later found on Richardson’s person. Richardson was ultimately found guilty of possession of a controlled substance, violation of bail bond conditions, two counts of attempted second degree assault, and three counts of attempted third degree assault.

On appeal, Richardson argued that there was insufficient evidence to support his convictions for attempted second degree assault and attempted third degree assault. However, the evidence that Richardson fired a gun at SWAT members while they were all in the basement was sufficient for the jury to conclude that Richardson attempted second and third degree assault against the SWAT team members.

Richardson also argued that it was reversible error for the judge to preside over a case in which his spouse was in the venire and allowed to remain on the jury. There is no Colorado statute or case that makes it an error for a judge’s spouse to serve on a jury in which the judge presides. Although it would have been prudent for the judge to excuse his spouse or to recuse himself from the case, reversal here was not warranted because the evidence was sufficient to support the conviction, and the record did not demonstrate that the jury service of the judge’s wife resulted in a fundamentally unfair trial or caused serious doubt as to the reliability of the conviction.

Richardson next argued that the trial judge incorrectly denied his challenge under Batson v. Kentucky, 476 U.S. 79 (1986), as untimely. Here, the trial court was correct in holding that the Batson challenge was untimely.

Richardson also argued that three hand-drawn diagrams were not fair and accurate representations of the alleged crime scene and thus were not admissible as demonstrative evidence. Here, the challenged exhibits were a fair and accurate representation of the alleged crime scene. Further, the judge did not unreasonably limit defense counsel’s questions on the accuracy of the diagrams where counsel had ample opportunity to highlight these purported inaccuracies during voir dire and on cross-examination.

Richardson further argued that the trial court reversibly erred in allowing the crime scene investigator to testify as an expert without being qualified as such. Even if the error was obvious, it was not substantial, and the court did not plainly err in allowing the investigator to testify, absent a contemporaneous objection, as a lay witness.

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Penalty Enhancer Applies to Any Conduct in Furtherance of Offense that Occurs in Close Proximity to Victim

The Colorado Court of Appeals issued its opinion in People v. Trejo Lopez on Thursday, August 23, 2018.

Criminal Law—Theft—At-Risk-Adult—Challenge for Cause—Jury—Presumption of Innocence—Sentence Enhancer.

Defendant and the 70-year-old victim had been neighbors in a mobile home park. While visiting the victim in his trailer, defendant asked to use the bathroom, took a gun that was hanging on the bathroom wall and put it into his backpack, and then left the premises. The jury convicted defendant of theft from an at-risk adult under C.R.S. § 18-6.5-103(5).

On appeal, defendant contended that the trial court erred when it denied his challenge for cause to prospective juror H.S. Defense counsel challenged H.S. for cause because she seemed confused about the presumption of innocence and expressed anti-gun views. H.S.’s comments about the presumption of innocence revealed confusion rather than evinced a bias or inability to follow and apply the law, and she was articulate in explaining her views. When she did not respond to the court’s final questions, it was reasonable for the court to conclude that she would follow the law. Thus, the trial court did not abuse its discretion in denying defendant’s challenge for cause to H.S.

Defendant also contended that the prosecution failed to present sufficient evidence to prove beyond a reasonable doubt that he committed any element or portion of the theft in the presence of the victim. Defendant argued that the theft was completed when he took possession of the gun in the bathroom and outside the presence of the victim. C.R.S. § 18-6.5-103 enhances the penalties for theft when any element or portion of the offense is committed in the presence of an at-risk person, which is any person 70 years of age or older. “Portion of the offense” means conduct taken in furtherance of the crime that occurs in temporal proximity to an element of the offense and is physically close to the victim. Here, immediately after taking possession of the gun, defendant left the bathroom and walked a few feet away from the victim as he left the trailer, and defendant spoke with the victim before leaving with the gun. Therefore, defendant committed a portion of the theft in the victim’s presence.

Defendant also argued that the trial court abused its discretion when it rejected his tendered jury instruction on “presence” and declined to issue an alternate instruction defining the term. Providing the jury with defendant’s instruction, which required proof of additional elements not found in the charged crime, would have been an inaccurate instruction. The trial court did not abuse its discretion.

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 8/28/2018

On Tuesday, August 28, 2018, the Tenth Circuit Court of Appeals issued no published opinion and two unpublished opinions.

Boyd v. Martin

United States v. Anaya

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

Tenth Circuit: Unpublished Opinions, 8/27/2018

On Monday, August 27, 2018, the Tenth Circuit Court of Appeals issued three published opinions and no unpublished opinions.

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