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Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions.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.

Colorado Supreme Court: Announcement Sheet, 12/3/2018

On Monday, December 3, 2018, the Colorado Supreme Court issued two published opinions.

Ruibal v. People

In re Fox v. Alfini

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: Elements of Convicted Offense are Blakely-Compliant Facts Because Jury Found Them Beyond Reasonable Doubt

The Colorado Supreme Court issued its opinion in Mountjoy v. People on Monday, November 19, 2018.

Aggravated Sentences—Due Process—Jury Trial.

This case required the supreme court to determine whether the trial court’s decision to find discretionary aggravation was compliant with Blakely v. Washington, 542 U.S. 296 (2004). The trial court relied on a jury finding beyond a reasonable doubt as to elements of offenses for which there were convictions to aggravate defendant’s sentences for concurrent convictions. The court held that elements of an offense for which there is a conviction are Blakely-compliant facts because they were found by a jury beyond a reasonable doubt. Therefore, a trial court can rely on such facts to aggravate a sentence for a concurrent conviction. Accordingly, the court of appeals’ judgment was affirmed on other grounds.

Summary provided courtesy of Colorado Lawyer.

Nominees Selected for Huerfano County Court Vacancy

On Wednesday, November 13, 2018, the Colorado State Judicial Branch announced the selection of two nominees to fill a vacancy on the Huerfano County Court. The vacancy will be created by the appointment of Hon. John McKisson, III, to the district court bench, effective January 8, 2019.

The two nominees are Pierce Fowler of Trinidad and Dawn Mann of Pueblo. Pierce Fowler is a solo practitioner at the Law Office of Pierce Fowler, where he practices family law. Dawn Mann is a solo practitioner at The Mann Law Firm, where she has a general practice.

Under the Colorado Constitution, the governor has 15 days from November 14, 2018, in which to appoint one of the nominees to the bench. Comments regarding any of the nominees may be emailed to the governor at gov_judicialappointments@state.co.us. For more information about the nominees, click here.

Colorado Supreme Court: Announcement Sheet, 11/19/2018

On Monday, November 19, 2018, the Colorado Supreme Court issued one published opinion.

Mountjoy v. People

The summary for 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.

Colorado Supreme Court: Water Court Entitled to Draw Reasonable and Commonsense Inferences from Circumstances Before It

The Colorado Supreme Court issued its opinion in People v. Sease on Tuesday, November 13, 2018.

Contempt—Acts or Conduct Constituting Contempt of Court.

In this direct appeal, the supreme court reviewed the water court’s contempt order, which imposed punitive and remedial sanctions on defendant. The water court determined that defendant was responsible for work performed on his property, the Sease Ranch, which caused out-of-priority depletions of water from Sheep Creek in violation of a court order. In its ruling, the water court inferred from defendant’s ownership of the Sease Ranch that he, not someone else, was responsible for the contemptuous work.

The court concluded that the water court had ample evidence to find that defendant is the owner of the Sease Ranch. Further, the court determined that the water court did not shift the burden of proof to defendant. The water court was entitled to draw reasonable and commonsense inferences from the circumstances before it. Thus, it was appropriate for the water court to consider the lack of evidence, and the corresponding improbability, that someone else entered the Sease Ranch and performed the contemptuous work without defendant’s authorization.

Accordingly, the water court’s judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Child Abuse Resulting in Death is Lesser Included Offense of Child Abuse Murder

The Colorado Supreme Court issued its opinion in Friend v. People on Tuesday, November 13, 2018.

Plain Error Review—Double Jeopardy—Merger—Lesser Included Offenses.

This case principally presents two double jeopardy questions: (1) whether the child abuse statute, C.R.S. § 18-6-401, prescribes more than one unit of prosecution and whether the prosecution presented sufficient evidence to establish that defendant committed more than one crime of child abuse; and (2) whether child abuse resulting in death under C.R.S. § 18-6-401(1)(a) and (7)(a)(1) is a lesser included offense of first-degree murder of a child under C.R.S. § 18-3-102(1)(f) (“child abuse murder”).

As to the first double jeopardy question presented here, applying the principles set forth in Schneider v. People, 382 P.3d 835, 839 (Colo. 2016), and People v. Abiodun, 111 P.3d 462, 466–68 (Colo. 2005), the supreme court concluded that the division below correctly determined that C.R.S. § 18-6-401 creates one crime of child abuse that can be committed in alternative ways. The question thus becomes whether the prosecution proved separate counts of child abuse. The court again agreed with the division and concluded that the prosecution did not do so, and thus each of the child abuse convictions must merge into one conviction for child abuse resulting in death.

As to the second double jeopardy question at issue, the court concluded for two reasons that the division erred in determining that defendant’s merged child abuse resulting in death conviction does not merge into his child abuse murder conviction. First, the plain language of the applicable statutes shows that “[w]hen a person knowingly causes the death of a child who has not yet attained twelve years of age and the person committing the offense is one in a position of trust with respect to the child,” that person is to be convicted of child abuse murder and not child abuse resulting in death. C.R.S. § 18-6-401(7)(c). Second, under the clarified principles set forth in People v. Rock, 402 P.3d 472 (Colo. 2017), and Page v. People, 402 P.3d 468 (Colo. 2017), which were announced after the division’s decision in this case, child abuse resulting in death is a lesser included offense of child abuse murder.

Having determined that the trial court erred in not merging the various counts in this case, the question remained whether these errors were plain. The court concluded that they were and therefore affirmed in part and reversed in part the division’s judgment.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Formal Advisement of Right to Be Present Not Prerequisite to Valid Waiver of Right

The Colorado Supreme Court issued its opinion in People v. Janis on Tuesday, November 13, 2018.

Right to Be Present—Waiver—Formal Advisements.

At trial, defendant, who was in custody, asked through her counsel to leave the courtroom during the victim’s testimony. She claimed that the testimony might trigger her post-traumatic stress disorder. Without first advising her of her right to be present or inquiring with her directly about her desire to leave, the trial court granted defendant’s request. Defendant asserted on appeal that this constituted reversible error. A division of the court of appeals agreed.

The supreme court held that a formal advisement of the right to be present at trial is not a prerequisite to a valid waiver of that right, even when a defendant is in custody. The touchstone is whether, under the totality of the circumstances, the waiver was knowing, intelligent, and voluntary. In this case, the court concluded that defendant’s waiver was knowing, intelligent, and voluntary. Accordingly, the court reversed the court of appeals’ judgment and remanded the case to address any previously unresolved issues.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Announcement Sheet, 11/13/2018

On Tuesday, November 13, 2018, the Colorado Supreme Court issued three published opinions.

People v. Janis

Friend v. People

People v. Sease

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: Announcement Sheet, 11/5/2018

On Monday, November 5, 2018, the Colorado Supreme Court issued two published opinions.

In re Schultz v. Geico Casualty Co.

People v. Cox

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.