February 22, 2019

Colorado Court of Appeals: Trial Court Erred in Finding Outrageous Government Conduct and Dismissing Case

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

Attempting to Influence a Public Servant—False Reporting—Outrageous Governmental Conduct—Work Product Privilege.

Defendant alleged that she went out drinking one night with a coworker and then went with him to his home. She reported that later that evening the coworker’s roommate raped her.

DNA evidence conclusively showed that it could not have been the roommate who had sexual contact with defendant; rather, the coworker had had sexual contact with defendant. Two prosecutors, a prosecutor’s office investigator, and a police detective interviewed defendant about these results at her home. The interview was conducted in the presence of family members and friends and was recorded on video. During the interview, defendant became upset and told the investigators and prosecutors to leave, and they did. Prosecutors charged defendant with two counts of attempting to influence a public servant and one count of false reporting.

At a hearing, defendant argued that the videotape of the interview should be suppressed and the case should be dismissed because the government’s conduct was outrageous. Prosecutors repeatedly used the work product privilege to block evidence showing why they chose to videotape the interview or that might explain their decision making process in filing the charges. The trial court dismissed the case against defendant based on a finding of outrageous government conduct.

On appeal, the People asserted that the trial court erred in concluding that there was outrageous government conduct warranting dismissal of the charges against defendant. Outrageous governmental conduct is conduct that violates fundamental fairness and shocks the universal sense of justice. Here, the trial court concluded, without evidentiary support, that videotaping the defendant was improper. Further, the prosecutor’s proper use of the work product privilege cannot from the basis for a finding of outrageous conduct. In addition, the trial court found a violation of the Victim Rights Act without identifying the specific section violated, and the videotape shows that defendant was treated with respect and was not harassed or abused. While the government’s behavior might be considered poor judgment or even legal error, the trial court’s findings of fact do not support its conclusion that the government’s conduct was outrageous. Because the trial court’s findings of fact are not supported by the record, they were arbitrary and thus an abuse of discretion.

The order dismissing the case was reversed and the case was remanded with directions to reinstate the charges and to consider the motions still pending before it, including whether the interview should be suppressed because the totality of the circumstances surrounding it constituted psychological coercion.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Defense Counsel’s Error in Declining to Object to Inapplicable Jury Instruction Amounted to Forfeiture

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

Criminal Law—Jury Instructions—Waiver—Forfeiture.

Defendant was convicted in one trial of charges stemming from four consolidated criminal cases. This case was remanded from the Supreme Court to reconsider the disposition of the conviction for first degree assault in light of People v. Rediger, 2018 CO 32.

On remand, Ramirez argued that the trial court’s jury instruction on deadly physical force, which related to the charges of first degree assault, second degree assault, and third degree assault, was improper. It was error for the court to instruct the jury on deadly physical force because defendant was not accused of causing death. By giving an inapplicable instruction and incorporating it into the elemental instruction for first, second, and third degree assault, the court would have caused the jury to have an incorrect understanding of the elements of those charges. The prior court of appeals’ division concluded that Ramirez had waived his contention of instructional error because his defense counsel stated he believed the instruction to be “a correct statement of the law,” and therefore declined to consider it. Defense counsel apparently lacked awareness of the error. Under these circumstances, the court could not conclude that counsel intentionally relinquished a known right on defendant’s behalf. Here, defense counsel’s error in declining to object to the jury instruction amounted to a forfeiture, not a waiver. The trial court committed plain error.

The conviction of first degree assault was reversed and the case was remanded for a new trial solely as to that charge. In all other respects, the judgment was affirmed.

Summary provided courtesy of  Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 2/12/2019

On Tuesday, February 12, 2019, the Tenth Circuit Court of Appeals issued two published opinions and four unpublished opinions.

Nitka v. Nelnet

Stamps v. Miller

MEMC II v. Cannon Storage Systems

Fletcher v. Inmate Bank

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

Colorado Supreme Court: Condominium Unit Owners Not Indispensable Parties Because Condominium Association Can Adequately Represent Owners’ Interests

The Colorado Supreme Court issued its opinion in In re Accetta v. Brooks Towers Residences Condominium Association on Monday, February 11, 2019.

Civil Procedure—Joinder—Declaratory Judgments—Colorado Common Interest Ownership Act

In this original proceeding pursuant to C.A.R. 21, the supreme court reviewed the district court’s order requiring plaintiff to join as indispensable parties the approximately 500 individual unit owners in the Brooks Tower Residences (Brooks Tower) rather than proceeding solely against his condominium association and its board members. Plaintiff sought, among other things, a declaratory judgment invalidating a provision of his condominium association’s declaration that provides for ownership interests to be allocated in the sole discretion of the declarant. The district court concluded that all of the Brooks Tower unit owners are indispensable parties and must be joined. The supreme court issued a rule to show cause why the district court’s ruling should not be vacated. The court concluded that the condominium association can adequately represent the interests of the absent unit owners for purposes of plaintiff’s declaratory judgment action. Therefore, plaintiff need not join those absent owners. The court made the rule to show cause absolute.

Summary provided courtesy of Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 2/11/2019

On Monday, February 11, 2019, the Tenth Circuit Court of Appeals issued on published opinion and two unpublished opinions.

SEC v. Boock

Franken v. Zinke

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

Colorado Supreme Court: Announcement Sheet, 2/11/2019

On Monday, February 11, 2019, the Colorado Supreme Court issued one published opinion.

In re Accetta v. Brooks Towers Residences Condominium Association, Inc.

The summary of this case is forthcoming.

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, 2/8/2019

On Friday, February 8, 2019, the Tenth Circuit Court of Appeals issued no published opinion and three unpublished opinions.

Mayfield v. Suggs

Dawson v. Archambeau

United States v. Gilchrist

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

Tenth Circuit: Unpublished Opinions, 2/7/2019

On Thursday, February 7, 2019, the Tenth Circuit Court of Appeals issued no published opinion and three unpublished opinions.

Watson v. Killough

United States v. Howard

West v. Bryant

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

Colorado Court of Appeals: Announcement Sheet, 2/6/2019

On Thursday, February 6, 2019, the Colorado Court of Appeals issued five published opinions and 26 unpublished opinions.

People v. Ramirez

People v. Burlingame

Martin Trust v. Board of County Commissioners

Parks v. Edward Dale Parrish, LLC

In re Interest of Arguello

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.


Tenth Circuit: Unpublished Opinions, 2/6/2019

On Wednesday, February 6, 2019, the Tenth Circuit Court of Appeals issued no published opinion and four unpublished opinions.

Anaya v. Hatch

Ali v. DuBoise

United States v. Gutierrez

United States v. Martinez-Martinez

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

Tenth Circuit: Unpublished Opinions, 2/5/2019

On Tuesday, February 5, 2019, the Tenth Circuit Court of Appeals issued no published opinion and six unpublished opinions.

Romero v. TitleMax of New Mexico

Chivers v. Reaves

Brooks v. CDOC

United States v. Gantt

Serrano v. United States

United States v. Robinson

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

Tenth Circuit: Unpublished Opinions, 2/4/2019

On Monday, February 4, 2019, the Tenth Circuit Court of Appeals issued one published opinion and six unpublished opinions.

Alemar v. Raemisch

United States v. Lopez-Casillas

United States v. Robinson

United States v. Rodriguez-Barbosa

United States v. Brigman

United States v. Breshers

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