Summaries of Published Opinions
| Publication year | 2022 |
| Pages | 74 |
August, 2022
FROM THE COURTS COLORADO COURT OF APPEALS
June 2, 2022
2022 COA 59. No. 18CA1697. People v. Newton. First Degree Murder—Evidence Tampering— Custodial Interview—Miranda Warning—Fifth Amendment—Right to Counsel—Evidence.
Defendant shot and killed the victim. He fled the scene and buried the gun in a nearby cemetery but later retrieved it. While executing a search warrant, officers arrested defendant and found a gun in his jacket. Officers read defendant his Miranda rights at jail, and defendant expressed confusion about whether he was entitled to an attorney even though he could not afford one. The officers gave either incorrect and misleading answers and then sidestepped defendant's follow-up questions. Defendant then signed the Miranda waiver and admitted to killing the victim and to hiding the gun in a cemetery. Defendant moved to suppress his statements made at the police station. The court denied the motion, and defendant was found guilty of first degree murder and evidence tampering.
On appeal, defendant contended that statements he made during his custodial interview should have been suppressed because the interrogating officers misled him about his right to have an attorney appointed before questioning. An advisement is adequate if Miranda rights are reasonably conveyed to the suspect and the suspect understands them as safeguards for the constitutional privilege. Here, though officers correctly read the Miranda rights, they incorrectly informed defendant that he was only entitled to an attorney if he could afford to hire one. Therefore, officers misled defendant about his right to counsel, so he did not knowingly and voluntarily waive his Miranda rights. Consequently, his waiver was invalid and die trial court erred by denying die motion to suppress. Further, die error was not harmless because die prosecution relied on defendant's confession throughout each phase of die trial. Defendant also contended that the prosecution presented insufficient evidence to support his conviction on die tampering charge. However, die evidence was sufficient for die jury to conclude that defendant (1) knew an official proceeding was about to be instituted and (2) concealed the gun in die cemetery with the intent to impair its availability in a prospective proceeding.
The judgment was reversed and die case was remanded for a new trial on both charges.
2022 COA 60. No. 21CA0574. People in the Interest of K.P. Dependency and Neglect— Collateral Bar Rule—Protection Order—First Amendment—Freedom of Speech—Contempt— Sanctions.
K.A. was involved in a contentious divorce with the children's father and alleged that father was sexually abusing two of the children. The Arapahoe County Department of Human Services (Department) filed a petition in dependency and neglect alleging that father was sexually abusing two of the children, but a jury found that the children were not dependent or neglected. Two years later, the Department filed a second petition asserting that K. A. had coached the oldest daughter into falsely reporting sexual abuse by her father as part of K.A.'s pattern of emotionally abusing the girls. A jury found all three children dependent and neglected as to K.A., and the juvenile court ordered her to comply with a treatment plan.
Soon thereafter, K.A. posted a "Petition to Protect CHILDREN!" on the website change.org, which included a video of the youngest daughter being interviewed by K.A. and making an outcry of sexual abuse and a video of the oldest daughter's journal entries disclosing sexual abuse by father. The Department moved for a protection order. The juvenile court granted the protection order and, among other things, it required K.A. to take down the petition, prohibited her from posting on social media sites information related to the children and the case allegations, and obligated her to provide the Department with the videos attached to the change.org petition. K.A. refused to comply with the order and continued to post on social media and her own website. The Department filed a motion for contempt and a motion to terminate K.A.'s parental rights. The juvenile court held K. A. in contempt and later terminated her parental rights, entered a judgment of contempt, sentenced K.A. to six months in jail, and sealed the court records. It also granted father's motion for a civil protection order (September order) that, among other things, prohibited K.A. from discussing the case with third parties. K.A. then filed a CRCP 59 motion asking the juvenile court to reconsider the breadth of the September protection order. The court narrowed the September protection order so K.A. could communicate about the case with her therapists, doctors, and attorneys (December order). Subsequently, father moved for a contempt citation against K.A. alleging additional violations. The juvenile court granted the motion and sentenced K A., who was already serving 17 months in jail on three other contempt citations, to an additional six months.
On appeal, K.A. argued that the September and December protection orders were unlawful because they were impermissible prior restraints on her right to free speech. Under the collateral bar rule, a party generally must comply with even an unlawful order or risk being held in contempt. Although K.A. appealed the contempt order, she did not timely appeal the underlying protection orders when they became final, so the collateral bar rule precluded her from challenging the constitutionality of the orders in her appeal of the contempt judgment. Further, none of the exceptions to the collateral bar rule applied.
K A. also argued that the evidence was insufficient to support the juvenile court's contempt judgment. However, the record supports the juvenile court's finding that K.A. was informed of the protection orders through the court and it her attorneys; and that K.A. willfully violated the protection orders, including evidence of jail phone calls and letters with her friend. Therefore, the juvenile court did not abuse its discretion by finding K.A. in contempt.
The judgment was affirmed.
2022 COA 61. No. 21CA0760. People in the Interest of M.M. Dependency and Neglect—Indian Child Welfare Act—Reason to Know—Assertion of Lineage—Proper Notice.
The Arapahoe County Department of Human if Services (Department) initiated a dependency and neglect proceeding concerning the children.
At the initial temporary custody hearing, father reported that his grandmother is a registered it tribal member in Delaware, though he was unsure of which tribe. The juvenile court directed father to complete an Indian Child Welfare Act (ICWA) assessment, but father did not submit the form. The Department later moved to terminate the legal relationship between the parents and the children. The juvenile court determined that the ICWA was inapplicable and entered judgment terminating both parents' parental rights.
On appeal, mother argued that the record does not demonstrate compliance with ICWA's requirements because there was no further inquiry or notice provided based on father's report of a lineal affiliation with a Delaware tribe. When the court knows or has reason to know that an Indian child is involved in a termination proceeding, it must ensure that notice of the proceeding is given to applicable Indian tribes or, in some circumstances, the Bureau of Indian Affairs (BIA). The federal regulations implementing ICWA provide that a court has reason to know that a child is an Indian child if certain factors are present, including when a case participant informs the court that he or she has discovered information indicating that the child is an Indian child. Here, father's assertion of a lineal tribal affiliation gave the juvenile court reason to know that the children are Indian children, thus triggering ICWA's notice requirements. However, the record does not show that proper notice was given to the appropriate tribes or the BIA.
The case was remanded, with instructions, for the juvenile court to expeditiously determine whether the children are Indian children before recertifying the case for a decision.
June 9, 2022
2022 COA 62. No. 19C A1332. People v. Washington. Criminal...
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