June 26, 2019

Archives for March 19, 2019

Colorado Supreme Court: Eyewitness’ In-Court Identification Allowed Despite Previous Failure to Identify Defendant in Photo Array

The Colorado Supreme Court issued its opinion in Garner v. People on Monday, March 18, 2019.

Eyewitnesses—Identification Evidence and Procedures—In-Court Identification.

The supreme court reviewed whether due process or the Colorado Rules of Evidence required the exclusion of victim-witnesses’ in-court identifications of defendant, where each witness had failed to identify defendant in a photographic array before trial and almost three years had elapsed between the crime and the confrontations. The court held that where an in-court identification is not preceded by an impermissibly suggestive pretrial identification procedure arranged by law enforcement, and where nothing beyond the inherent suggestiveness of the ordinary courtroom setting made the in-court identification itself constitutionally suspect, due process does not require the trial court to prescreen the identification for reliability. Here, because defendant alleged no impropriety regarding the pretrial photographic arrays, and the record revealed nothing unusually suggestive about the circumstances of the witnesses’ in-court identifications, the in-court identifications did not violate due process. The court further held that defendant’s evidentiary arguments were unpreserved, and the trial court’s admission of the identifications was not plain error under CRE 403, 602, or 701. Accordingly, the court affirmed the court of appeals’ judgment.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Postconviction Claim Is Illegal Manner Claim Under Crim. P. 35(a) and Therefore Time-Barred

The Colorado Court of Appeals issued its opinion in People v. Knoeppchen on Thursday, March 7, 2019.

Criminal Procedure—Restitution—Sentence Imposed in Illegal Manner—Timeliness—Due Process.

Defendant pleaded no contest to third degree assault and was sentenced to probation. As part of the plea agreement, he agreed to pay restitution. At the time of the agreement, the prosecution did not have complete information regarding restitution, so the district court reserved the restitution determination for 90 days. The prosecution moved for an order imposing restitution 100 days later. Defendant filed no response, and the district court granted the motion, stating that the amount was not final because the amount of restitution owed to the victim compensation fund had yet to be determined. The prosecution later moved to amend the restitution amount, reducing the total amount due. Defendant again filed no response, and the district court granted this motion as well. More than three years later, defendant filed a motion to vacate the restitution order, which was denied.

On appeal, defendant claimed that the district court did not address good cause in a timely fashion, thus ignoring essential procedural rights or statutory considerations. Defendant’s claim was a challenge to the manner in which the sentence was imposed rather than a claim that his sentence was not authorized by law. A claim that a sentence was imposed in an illegal manner must be raised within 126 days of the imposition of the sentence. Because defendant filed his motion to vacate the restitution order well beyond the 126-day limit, his motion was time barred.

Defendant also asserted that the district court violated his due process right by making a post hoc finding of good cause in permitting the tardy restitution request and relying on information presented by the prosecution long after the restitution order was entered. This is a challenge to the constitutionality of the restitution component of the sentence. As such, this claim is cognizable under Crim. P. 35(c). However, a Rule 35(c) challenge to a misdemeanor conviction or sentence must be brought within 18 months of the conviction. Because defendant’s motion was filed after this deadline, his due process challenge is also time barred.

The order was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Real Estate Transaction-Broker’s Duties are Statutory and Cannot Be Contracted Away

The Colorado Court of Appeals issued its opinion in Colorado Real Estate Commission v. Vizzi on Thursday, March 7, 2019.

Administrative Law—Real Estate License—Transaction-Broker—Mandatory Duties—Federal Antitrust Law—Due Process—Sanctions.

Vizzi entered into contracts in 2013 and 2014 with three clients to provide unbundled real estate brokerage services in exchange for a flat fee. In one instance, he contracted only to list the client’s property on the Multiple Listing Services (MLS) list. In two other instances, he contracted only to provide a yard sign, a lock box, and centralized showing services, and to list the properties on the MLS. An anonymous informant notified the Colorado Real Estate Commission (Commission) of Vizzi’s practices and the Commission charged Vizzi with failing to fulfill his statutory duties under C.R.S. § 12-61-807(2). An administrative law judge (ALJ) found that Vizzi was required to provide his clients all of the services listed C.R.S. § 12-61-807(2) and failed to do so in the transactions at issue. The Commission adopted the ALJ’s findings of fact and conclusions of law and modified the discipline imposed on Vizzi to include public censure.

On appeal, Vizzi maintained that he was permitted by statute to contract out of many of the duties imposed on transaction-brokers under C.R.S. § 12-61-807(2) and the contracts in question successfully accomplished that goal. A transaction-broker’s statutory duties are mandatory and cannot be contracted away. Here, the record supports the ALJ’s findings that Vizzi intended not to act as a transaction-broker and manifested that intent by inserting language into the contracts disclaiming the duties of such a broker, and Vizzi violated C.R.S. §§ 12-61-113(1)(k), 12-61-113(1)(n), and 12-61-803(1).

Vizzi also argued that the Commission’s policy prohibiting the provision of limited real estate services violates federal antitrust law. The Commission’s discipline of defendant for failing to perform his statutory duties fell within the Commission’s statutory authority and is properly considered state sovereign action. Therefore, it did not violate federal antitrust laws.

Vizzi next maintained that the ALJ violated his due process rights by denying his motion to compel disclosure of the identity of the anonymous complainant. Vizzi did not show how the complainant’s identity was relevant to his ability to defend against the Commission’s charges. Therefore, the Commission did not err in upholding the ALJ’s denial of Vizzi’s motion to compel disclosure of the anonymous complainant.

Vizzi further contended that the Commission exceeded its statutory authority and thus violated his due process rights when it imposed public censure after the ALJ had imposed only a fine and continuing education. Alternatively, Vizzi argued the decision to impose public censure was arbitrary and capricious. Vizzi violated his statutory duties multiple times after the Commission’s December 2010 position statement put him on notice that the listing contracts he prepared in 2013 and 2014 were improper. And the public censure penalty was sought in the initial charge against Vizzi. Therefore, the Commission acted within its statutory authority by imposing a sanction beyond that imposed by the ALJ, and the Commission’s sanction bore some relation to Vizzi’s misconduct and to the needs of the public.

The order was affirmed.

Summary provided courtesy of Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 3/18/2019

On Monday, March 18, 2019, the Tenth Circuit Court of Appeals issued one published opinion and five unpublished opinions.

Smith v. Drawbridge

Cosby v. Schnurr

Ezell v. Allbaugh

Rader v. Citibank

Smith v. Lawton Correctional Facility

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