December 10, 2018

Colorado Supreme Court: Announcement Sheet, 12/10/2018

On Monday, December 10, 2018, the Colorado Supreme Court issued two published opinions.

Thompson v. Catlin Insurance Co.

Cowen v. People

Summaries of these cases are forthcoming.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions. The case announcement sheet is available here.

Colorado Supreme Court: Unnecessary Presence of Parents at Initial Consultation Voids Attorney-Client Privilege

The Colorado Supreme Court issued its opinion in In re Fox v. Alfini on Monday, December 3, 2018.

In this original proceeding pursuant to C.A.R. 21, the court reviews the district court’s order compelling production of a recording of the Petitioner’s initial consultation with her attorney. The district court determined that the recording was not subject to the attorney-client privilege because her parents were present during the consultation and their presence was not required to make the consultation possible. Further, the district court refused to consider several new arguments that the Petitioner raised in a motion for reconsideration.
The supreme court issued a rule to show cause and now concludes that the presence of a third party during an attorney-client communication will ordinarily destroy the attorney-client privilege unless the third party’s presence was reasonably necessary to the consultation or another exception applies. Here, because the record supports the district court’s finding that the Petitioner had not shown that her parents’ presence was reasonably necessary to facilitate the communication with counsel, the court perceives no abuse of discretion in the district court’s ruling that the recording at issue was not protected by the attorney-client privilege.
The court further concludes that, under settled law, the district court did not abuse its discretion in refusing to consider the new arguments that the Petitioner raised in her motion for reconsideration.
Accordingly, the court discharges the rule to show cause.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Admission of “Overkill” Theory Without Specific Findings Was Error

The Colorado Supreme Court issued its opinion in Ruibal v. People on Monday, December 3, 2018. 

Ruibal petitioned for review of the court of appeals’ judgment affirming hisconviction for second degree murder. Over defense objection and without taking evidence or making any findings as to reliability, the trial court admitted expert testimony to the effect that the victim’s injuries in this case demonstrated “overkill,” a formal term describing multiple injuries focused on one area of the victim’s body, which includes blows about the head and face that are numerous and extensive, indicating that the assailant likely had either a real or perceived emotional attachment to the victim. Relying on case law from several other jurisdictions, a treatise dealing with related kinds of injuries, and the witness’s own experience with autopsies involving similar injuries, the court of appeals concluded that the expert opinion was sufficiently reliable and that the trial court had implicitly found as much by granting the prosecution’s proffer.
The supreme court holds that because the trial court made no specific finding that the theory of “overkill” espoused by the witness was reliable, nor was the reliability of that theory either supported by evidence in the record or already accepted in this jurisdiction, its admission amounted to an abuse of discretion. Because there was, however, overwhelming evidence of the defendant’s guilt quite apart from the expert testimony, the error was necessarily harmless. Accordingly, the judgment of the court of appeals is affirmed.

Summary provided courtesy of Colorado Lawyer.

10th Circuit: Unpublished Opinions, 12/7/2018

On Friday, December 7, 2018, the Tenth Circuit Court of Appeals issued one published opinion and three unpublished opinions.

Layng v. Rael

Singh v. Sessions

Dailey v. Hecht

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

Colorado Court of Appeals: Former Spouse Not Foreclosed on Standing Grounds from Seeking Reformation of Will

The Colorado Court of Appeals issued its opinion in In re Estate of Little on Thursday, November 29, 2018.

Family LawCommon Law MarriageProbateWillsReformation to Correct Mistakes.

Little’s will devised her estate to her spouse Curry, from whom she later divorced. After her death, Curry claimed that he was entitled to inherit under Little’s will because they had remarried at common law before she died. Alternatively, he sought reformation of the will, contending that Little intended to devise her estate to him regardless of their marital status. The trial court found that Curry failed to show he and Little remarried at common law, and Curry otherwise lacked standing to seek reformation of her will.

On appeal, Curry contended that the provisions in Little’s will devising her estate to him were revived by their common law remarriage under C.R.S. § 15-11-804(5). There was substantial evidence in the record to support the trial court’s findings that Curry and Little were not common law married after their divorce.

Alternatively, Curry contended that the trial court erroneously found he lacked standing to seek reformation of Little’s will under C.R.S. § 15-11-806 because when Little executed her will, she intended for him to inherit her estate regardless of their marital status. The court of appeals reviewed the statutory scheme and found no indication that the General Assembly intended to exclude a former spouse from pursuing reformation under C.R.S. § 15-11-806, or that it intended C.R.S. § 15-11-804(5) to be an ex-spouse’s sole and exclusive remedy for avoiding a statutory revocation due to a divorce. Accordingly, Curry had standing to pursue his reformation claim.

The order determining that Little and Curry were not common law remarried was affirmed. The dismissal of Curry’s reformation claim was reversed and the case was remanded.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Language in Fee Agreement Insufficient to Terminate Counsel’s Representation

The Colorado Court of Appeals issued its opinion in People v. Lancaster on Thursday, November 29, 2018.

Criminal ProcedureConstitutional LawSixth AmendmentNotice of AppealIneffective Assistance of CounselCrim. P. 44(e)Termination of Representation.

Newell represented Lancaster at a criminal trial. The fee agreement between Newell and Lancaster included a provision that representation terminated at the conclusion of trial. A jury found Lancaster guilty on six of seven counts and he was sentenced in 2007. Following trial, Newell informed Lancaster that he would not represent him on appeal, but Newell did not withdraw from the representation. Thereafter, Lancaster did not timely file a notice of appeal. In 2010, Lancaster filed a pro se Crim. P. 35(c) motion alleging that Newell had been constitutionally ineffective by failing to file a notice of appeal. The motion was denied after a hearing.

On appeal, Lancaster contended that Newell was constitutionally ineffective in failing to file a notice of appeal on his behalf. Trial counsel’s representation of a criminal defendant terminates only as provided under Crim. P. 44(e), notwithstanding the fee agreement; therefore, trial counsel’s duty to perfect the defendant’s appeal is not discharged until the representation terminates pursuant to Crim. P. 44(e). Here, Newell’s failure to either file a notice of appeal on Lancaster’s behalf or withdraw pursuant to Crim. P. 44(d) and secure the appointment of the public defender to represent Lancaster on direct appeal constituted ineffective assistance of trial counsel. Because the ineffective assistance of trial counsel deprived Lancaster of his right to direct appeal of his conviction, he is entitled to pursue a direct appeal out of time pursuant to C.A.R. 4(b).

The order was reversed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Police Officer’s Observation of Vehicle Weaving in Lane Sufficient to Create Reasonable Suspicion of DUI

The Colorado Court of Appeals issued its opinion in People v. Johnston on Thursday, November 29, 2018.

Constitutional Law—Fourth Amendment—Search and Seizure—Motor Vehicles.

A sheriff’s deputy noticed defendant’s car continuously weaving within the right-hand lane while traveling on Interstate 70. The deputy followed defendant for five to six miles before stopping him for suspicion of driving under the influence of alcohol. During the stop, the officer noticed signs of intoxication, administered roadside tests, and arrested defendant. Defendant was charged with aggravated driving after revocation prohibited and driving under the influence (DUI). Defendant filed a motion to suppress, which the trial court denied. A jury found defendant guilty of aggravated driving after revocation prohibited and the lesser included offense of driving while ability impaired.

On appeal, defendant argued that the trial court erred by denying his motion to suppress. He argued that his weaving within a single lane, without more, did not create a reasonable suspicion of DUI. The Fourth Amendment does not require that a police officer see the defendant commit a traffic violation before stopping him, and repeated intra-lane weaving can create reasonable suspicion of impaired operation. Whether there exists reasonable suspicion of intoxicated driving is based on the totality of the circumstances. Here, under the totality of the circumstances, the police officer’s observation of defendant’s vehicle weaving continuously within its own lane for over five miles was sufficient to create a reasonable suspicion that the driver was intoxicated. Therefore, the trial court did not err in denying defendant’s motion to suppress.

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Anonymous Juror’s Response to Post-Verdict Attorney Evaluation Inadmissible Under CRE 606(b)

The Colorado Court of Appeals issued its opinion in People v. Burke on Thursday, November 15, 2018.

Post-Verdict Juror Attorney EvaluationMotion for New TrialCRE 606(b).

Burke was convicted of burglary. After trial, the jury commissioner sent an attorney performance evaluation form to the jurors. Responses are anonymous. On one of the responses directed to Burke’s counsel, an anonymous juror wrote, “Hard to believe a client when they choose to remain silient [sic].”  Burke moved for a new trial, arguing that at least one juror had disregarded the court’s instructions and based her decision on an impermissible basis. The trial court found the statement was evidence there had been jury misconduct and concluded that CRE 606(b) did not render the statement inadmissible. Without taking additional evidence, the trial court granted the motion for a new trial.

On appeal, the People argued that CRE 606(b) precluded the trial court from considering the anonymous juror’s statement as a basis to grant a new trial. The rule bars admission of any juror testimony or statement to impeach a verdict where the testimony or statement concerns what occurred during jury deliberations, with three exceptions. The anonymous juror’s statement was inadmissible under CRE 606(b) and the exceptions were not applicable. The trial court erred in granting the motion for a new trial.

Burke argued that the trial court’s order should be affirmed because the juror intentionally concealed bias during voir dire. But because the statement was inadmissible, it cannot be used to impeach a verdict on any ground, including a claim that a juror concealed bias during voir dire.

Finally, Burke argued that the court of appeals should recognize a constitutional exception to CRE 606(b) where the juror’s statement reflects a bias against the defendant for the exercise of a fundamental constitutional right. The U.S. Supreme Court’s recent recognition of a limited constitutional exception to Rule 606(b) in a case of racial animus does not support an exception under the circumstances of this case.

The order for a new trial was reversed and the case was remanded for reinstatement of the jury’s verdict.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Grandparent Has No Constitutionally Protected Liberty Interest in Society or Custody of Child

The Colorado Court of Appeals issued its opinion in People in Interest of C.N. on Thursday, November 15, 2018.

Dependency and NeglectGrandparentsFourteenth AmendmentDue ProcessStanding.

In 2015, the Jefferson County Division of Children, Youth, and Families filed a petition in dependency and neglect due to concerns about mother’s mental health. Mother’s newborn was placed in foster care and mother’s parental rights were terminated a year later. A division of the court of appeals affirmed the judgment and a mandate was issued in February 2017. That same month, grandmother filed a motion to intervene in the case and then filed a motion for the child to be placed with her. The juvenile court held a contested hearing on the motion and found it was in the child’s best interest to permanently remain with the foster parents. The court also terminated grandmother’s visitation with the child. The child was adopted by the foster parents in January 2018.

On appeal, grandmother argued that mother did not receive reasonable accommodations to address her mental health issues and the child had a fundamental right of association with grandmother. Also, she asserted that as an intervenor in the case she was a real party interest as to these issues. The court construed grandmother’s arguments to be that she had standing in the case. Grandmother cited no substantive law granting her standing to assert the rights of mother and the child. Further, courts have consistently held that in dependency and neglect appeals parents and intervenors lack standing to assert the rights of other parties. Grandmother lacked standing to raise the issues on appeal regarding mother and the child.

Grandmother also argued the juvenile court lacked subject matter jurisdiction to hear the case because the child never resided or was present in Jefferson County. The allegation that the child was dependent or neglected conferred subject matter jurisdiction with the juvenile court; the question then turned on whether venue was proper. When mother gave birth to the child, she was asked at the hospital where she lived and she provided an address in Arvada, which is within Jefferson County. Thus, venue was proper.

Grandmother further argued that her fundamental associational rights with the child required that she be fully considered for placement of the child and it was error for her not to receive notice of the termination hearing. Grandmother did not have a constitutionally protected liberty interest in the society or custody of the child because she had only limited visitation rights derived from statute and had no existing custodial relationship. Grandmother did not have placement of the child and was not entitled to notice of the termination hearing.

The court also rejected grandmother’s argument that it was error to not allow grandmother to file a petition for the adoption of the child in the dependency and neglect case. There is no such right in the dependency and neglect proceeding, and grandmother was not precluded from timely filing an adoption petition in a separate proceeding. Accordingly, the juvenile court did not err in disallowing the filing of the adoption petition.

The court further rejected grandmother’s argument that the juvenile court erred in terminating her visitation rights with the child. Grandmother’s visitation rights were terminated at the time mother’s parental rights were terminated.

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: District Court Had Jurisdiction Under UCCJEA to Enforce Parenting Time Orders Issued by Georgia Court

The Colorado Court of Appeals issued its opinion in In re Parental Responsibilities of W.F.-L. on Thursday, November 15, 2018.

Parenting TimeUniform Child Custody Jurisdiction and Enforcement ActMootness—C.R.S. § 14-13-205.

Father and mother have a child together but were never married. A Georgia court entered a final order in 2011 and a modified parenting plan in 2012 concerning the child. In 2014, mother and the child relocated to Colorado. In 2016, father petitioned to register the 2012 parenting plan in Colorado under C.R.S. § 14-13-305. Mother responded that both the parenting plan and the 2011 final order needed to be registered in Colorado and co-petitioned to register both orders.

Father then filed a verified motion under C.R.S. § 14-10-129.5 alleging that mother was not permitting him to exercise his parenting time or to contact the child. Mother opposed and moved to modify parenting time. At the final orders hearing, the district court entered an order registering the Georgia orders in Colorado and adopting the parties’ stipulations for future parenting time. It found that it lacked jurisdiction to grant father the enforcement remedies he sought and denied his C.R.S. § 14-10-129.5 motion.

The court of appeals first rejected mother’s argument that father’s appeal of the denial of his enforcement motion was moot because the district court adopted the parties’ stipulations to modify the Georgia parenting time order. Father’s requests were not mooted by the modification order, as they remain undecided and could have been ordered in addition to modification.

Father argued that the district court erred in finding that it lacked subject matter jurisdiction and therefore denying his C.R.S. § 14-10-129.5 motion. The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) governs a Colorado court’s enforcement of parental responsibilities orders entered in other states. Under C.R.S. § 14-13-305(1), a parental responsibilities determination issued by a court of another state may be registered in Colorado and a Colorado court may then “grant any relief normally available under” Colorado law to enforce the registered parental responsibilities determination. On registering the Georgia orders, father was entitled to seek the same remedies as if those orders had been entered in Colorado, including C.R.S. § 14-10-129.5’s backward-looking remedies, and the district court was empowered to grant any enforcement relief normally available under Colorado law as to those orders. Accordingly, the district court erred in denying father’s motion.

The order was reversed and the case was remanded for the district court to address father’s C.R.S. § 14-10-129.5 motion.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Lack of Compliance with ICWA’s Foster Care Placement Provisions Does Not Deprive Juvenile Court of Jurisdiction

The Colorado Court of Appeals issued its opinion in People in Interest of M.V. on Thursday, November 15, 2018.

Indian Child Welfare ActFoster Care PlacementDependency and NeglectAdmissibility of Video RecordingsSubject Matter Jurisdiction.

The El Paso County Department of Human Services (the Department) initiated a dependency and neglect case regarding mother’s children. The case was based on methamphetamine use, manufacture, and distribution, and domestic violence. Following a jury trial, the juvenile court adjudicated the children dependent and neglected. After another hearing, the court entered a dispositional order that adopted a treatment plan for mother.

On appeal, mother argued that the record did not demonstrate compliance with the Indian Child Welfare Act (ICWA) and therefore the juvenile court lacked subject matter jurisdiction to adjudicate the children and enter a dispositional order. The court of appeals first concluded that the juvenile court’s asserted lack of compliance with ICWA’s notice provisions do not divest it of subject matter jurisdiction to enter the adjudicatory and dispositional orders. The ICWA allows Indian children, parents, and tribes to challenge a termination judgment, but this does not take away the jurisdiction of the state court. Here, the asserted lack of compliance with ICWA’s notice provisions did not divest the juvenile court of subject matter jurisdiction to enter the adjudicatory and dispositional orders.

The court also determined that the ICWA’s foster care placement provisions apply to a dispositional order, but not to an order adjudicating a child dependent and neglected. In this case, based on mother’s ICWA assessment form, there was reason for the court to know that the children were Indian children. The record contains no indication that the Department gave the required notices or that the juvenile court made the necessary findings. The record fails to demonstrate compliance with the ICWA.

Mother also argued that the juvenile court committed reversible error by admitting video recordings of her and the children that had been anonymously provided to the Department and were not properly authenticated. Here, the Department did not establish either the accuracy of the scenes depicted in the videos or the accuracy of the recording process. Thus, the juvenile court erred in admitting the video recordings. Further, the court could not conclude that the admission of the videos did not substantially influence the jury’s verdict. Therefore, the error was not harmless.

The adjudicatory and dispositional orders were reversed and the case was remanded for a new adjudicatory trial.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Surviving Spouse Not Entitled to Minimum Elective Share When Nonprobate Assets Exceeded Elective Share Amount

The Colorado Court of Appeals issued its opinion in In re Estate of Cloos on Thursday, November 15, 2018.

Probate—Elective Share—Supplemental Elective Share.

The decedent devised her entire estate to her daughter, Jean Ann. Because the will devised the entire estate to Jean Ann, Jean Ann’s father, Cloos (who was the decedent’s husband), made statutory claims for shares of the estate. He claimed a $32,000 family allowance (FA) and a $32,000 exempt property allowance (EPA). He also petitioned for a supplemental elective share of the marital property. Jean Ann was the original personal representative (PR), but the court later appointed Findley as successor PR due to mutual distrust between Jean Ann and Cloos. Findley approved the sale of the marital home to Cloos to be paid with credits for his FA and EPA claims and gave Cloos a credit of $50,000 from probate estate funds for his “statutory minimum elective-share,” as well as 48,500 cash, which was the only asset in the estate. The district court granted a final settlement of the estate.

On appeal, Jean Ann contended that the district court erred by allocating $50,000 in elective-share funds from the probate estate to Cloos. A surviving spouse married for 10 years or more is statutorily entitled to an elective share of marital assets equal to (1) 50% of the augmented estate (standard elective share), or (2) $50,000 (supplemental elective share), whichever is greater. In satisfying the $50,000 amount, the surviving spouse’s own title-based ownership interests count first; for this purpose, the survivor’s assets include amounts transferred to the survivor at the decedent’s death and amounts owing to the survivor from the decedent’s estate under the elective share formula.

In this case, Cloos’s share of marital assets in real estate interests alone far exceeded $50,000 because he owned half of the Fort Collins house (appraised at $325,000) and all of the Wyoming cabin (assessed at $277,000). Therefore, Cloos is not entitled to a supplemental elective share of the estate, and it was error to credit him with a supplemental $50,000 of probate estate funds toward his purchase of the Fort Collins house. However, the record does not contain a calculation of the augmented estate at the time of the decedent’s death. While it appears from the limited information in the record that Cloos held well over 50% of the augmented estate and was thus not entitled to any further assets from the probate estate, there is no evidence in the record that the successor PR calculated either the actual value of the augmented estate or the percentage held by Cloos. It is thus unclear whether Cloos was entitled to any standard elective-share credit toward the house.

The order approving the final settlement of the estate was reversed and the case was remanded with directions.

Summary provided courtesy of Colorado Lawyer.