Summaries of Published Opinions
| Publication year | 2023 |
| Pages | 80 |
January, 2023
COLORADO COURT OF APPEALS
November 3, 2022
2022 COA 127. No. 19CA0395. People v. Black. First Degree Murder—Conspiracy to Commit First Degree Murder—Venue—Severance—Right to Public Trial—Trivial Courtroom Closure.
The victim was a traveling mechanic who fixed a car for an acquaintance of Black's mother at a Denver motel. The victim saw evidence in the motel room that Black and several others had robbed a medical marijuana dispensary, and he reported what he had seen to police. Officers later arrested Black and several others. The victim was subsequently shot to death in Denver. In a joint trial with his mother, Black was convicted of first degree murder and conspiracy to commit first degree murder.
On appeal, Black argued that his convictions must be vacated because Arapahoe County was not the proper venue for his trial. CRS § 18-1-202(1) provides that a case must be tried either in the county where the offense was committed or in any other county in which an act in furtherance of the offense occurred. Here, Black had a discussion in Arapahoe County with his mother, in the presence of the acquaintance, about whether and when to kill the victim. Therefore, venue was proper in Arapahoe County because an act in furtherance of the murder occurred there.
Black also argued that the Eighteenth Judicial District Attorney lacked authority to charge him in the victim's death. As discussed above, because venue was proper in the Eighteenth Judicial District, the offenses were triable there, and the Eighteenth Judicial District Attorney's Office had authority to pursue the charges there.
Black further contended that the district court violated his constitutional right to a public trial when it excluded the public from the courtroom during jury selection. A court may close the courtroom completely or partially, and some closures are so trivial that they do not rise to the level of a constitutional violation. Courts consider the totality of the circumstances surrounding the closure to determine whether it was so trivial that it did not violate the defendant's public trial right. Here, there were 50 potential jurors in a small courtroom, and the district court noted that a member of the public was seated in the courtroom. Because the court needed every available chair to seat the venire and out of concerns for fire safety, it asked the person to leave until a seat became available. The courtroom was closed only until the court dismissed the first potential juror as ineligible to serve on the jury, and the closed proceeding took place on the record. Under these circumstances, the closure was so trivial that it did not implicate Black's public trial right.
Lastly, Black contended that the district court reversibly erred by not severing his case from his mother's. Black's mother was charged in connection with the dispensary robbery, and although the district court ultimately dismissed Black's charges related to that robbery, the robbery was part of the criminal episode to murder the victim in order to hide the robbery. Black did not argue that any evidence introduced at the joint trial was inadmissible against him, so he was not entitled to severance as a matter of right under Crim. P. 14, and the district court had discretion to grant the motion for severance. Here, Black was not prejudiced by the trial evidence. Accordingly, the district court did not abuse its discretion in refusing to sever the trials.
The judgment of conviction was affirmed.
2022 COA 128. No. 21CA0708. Education ReEnvisioned BOCES v. Colorado Literacy and Learning Center. Boards of Cooperative Services Act of 1965—BOCES—Location of Facilities.
Plaintiff is a school district cooperative under the Boards of Cooperative Services Act of 1965 (the BOCES Act) (the cooperative). Defendant and third-party plaintiff Colorado Springs School District 11 (District 11) is not a member of the cooperative. The cooperative and third-party defendant Colorado Literacy and Learning Center (the Learning Center) entered into an agreement for the Learning Center to operate a contract school within the geographic boundaries of District 11, without obtaining permission from the District 11 school board. District 11 objected, and the cooperative filed a complaint for declaratory judgment that it could continue operating the contract school at its current location without District 11's permission. District 11 counterclaimed and filed a third-party claim against the Learning Center, seeking an opposite declaratory judgment and an injunction against the contract school's further operation within its boundaries. On cross-motions for summary judgment, the district court denied District 11's motion for partial summary judgment and granted the cooperative's and the Learning Center's motions for summary judgment.
On appeal, District 11 challenged the denial of its summary judgment motion. The BOCES Act enables two or more school districts to cooperate in providing services authorized by law through the creation of boards of cooperative services (BOCES). But the statute's plain language does not grant BOCES extraterritorial authority, so it cannot locate schools in nonmember school districts without those districts' permission. Accordingly, the district court's summary judgment order was based on a misapplication of the law.
The order was reversed. The case was remanded for entry of partial summary judgment in favor of District 11 and for the district court to determine whether injunctive relief is appropriate.
2022 COA 129. No. 21CA1241. Home Improvement, Inc. v. Villar. Civil Procedure—Service of Process—Service by Mail—Service by Publication—Address—Last Known Address.
Home Improvement, Inc. performed repair work to the residence on Villar's property (the property). Home Improvement was unable to collect the outstanding amount it was owed for the work, so it sent Villar a notice of intent to file a mechanic's lien via certified mail to the property. This notice was sent "return receipt requested" but was returned as undeliverable, with a handwritten notation on the envelope stating, "UAA P[.]O. Box." Home Improvement later sued Villar. A process server was unable to serve Villar, so Home Improvement filed a verified motion to proceed against the property in rem. The district court authorized service by mail and by publication. Home Improvement sent a copy of the process to the property via certified mail, return receipt requested, but the mail was returned undeliverable. Home Improvement also published the process in a newspaper in the county where the action was pending, and it had the process server attach a copy of the complaint and other process to the front door of the house at the property. Villar never appeared in the case, and the district court ultimately entered a default judgment and decree of foreclosure against him. The sheriff ultimately auctioned off the property, and after Villar's wife was served with a notice to quit at the property, Villar moved to set aside the default judgment and foreclosure sale. The district court concluded that Villar's last known address was the property address, and it left the judgment intact.
On appeal, Villar argued that the judgment is void because the district court lacked in rem jurisdiction due to ineffective service of process. Under CRCP 4, a verified motion seeking service by mail or publication must state "the address, or last known address" of the person to be served. For service by mail, a copy of the process must be sent by registered or certified mail to such address, and a signed return receipt is required before service is complete. Service by publication similarly requires mailing a copy of the process to each person whose address or last known address was stated in the motion and filing of proof thereof. "Address" is the place at which a party generally recognizes that another party can be communicated with, and "last known address" is the most recent such place. Here, when the notice of intent to file the mechanic's lien was returned to Home Improvement "not deliverable as addressed," Home Improvement became aware that mail would not be delivered to the property address but could be delivered to Villar's P.O. box. The property address ceased to be a "known" address, while the P.O. box became the only address, and thus the last known address. Because neither the service by mail nor the service by publication used Villar's P.O. box, the district court never obtained in rem jurisdiction over the property. Accordingly, the judgment is void, and the foreclosure and any resulting orders cannot stand.
The order denying the motion to set aside the default judgment and the order of possession were reversed. The case was remanded for further proceedings.
2022 COA 130. No. 21CA2032. Environmental Defense Fund v. Colorado Department of Public Health. Public Health and Environment— HB 19-1261—SB 19-096—Agency Rules and Regulations—Greenhouse Gas Emissions—Data Collection.
In 2019, HB 19-1261 and SB 19-096 were signed into law. These complementary bills seek to reduce statewide greenhouse gas (GHG) emissions. HB 1261, codified at CRS §§ 25-7-102 and -105, set GHG emission reduction targets and directed the Colorado Air Quality Control Commission (Commission) to promulgate rules and regulations to effectuate the goals in CRS § 25-7-102(2)(g). SB-96, codified at CRS § 25-7-140, requires the Commission to take steps to ensure that GHG-emitting entities monitor and report their emissions and to tailor such reporting requirements to fill any existing data gaps. As relevant here, CRS § 25-7-140(2)(a)(III) set a July 1, 2020, deadline for the Commission to publish a notice of proposed rulemaking for implementation of measures to allow the state to meet its...
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