Summaries of Published Opinions, 0319 COBJ, Vol. 48, No. 3 Pg. 84

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48 Colo.Law. 84

Summaries of Published Opinions

Vol. 48, No. 3 [Page 84]

Colorado Lawyer

March, 2019

COLORADO COURT OF APPEALS

January 10, 2019

2019 COA1. No. 14CA1384. People v. Irving.

Constitutional Law—Sixth Amendment—Public Trial—Courtroom Closure.

Defendant was charged with first degree murder and conspiracy to commit murder in connection with a gang-related dispute. During his trial, the prosecutor requested that the court exclude defendant's mother from the courtroom during his former girlfriend's testimony because, according to the prosecution, defendant's mother had urged the girlfriend not to cooperate with the police about four years earlier. The trial court granted the prosecution's request and partially closed the courtroom during the testimony of defendant's former girlfriend. Defendant was convicted of second degree murder and conspiracy to commit murder.

On appeal, defendant contended that the courtroom closure violated his constitutional right to a public trial. The proponent of a courtroom closure must demonstrate not only an overriding interest but also a substantial probability that the identified interest will be prejudiced by an open courtroom. The need to protect witnesses from intimidation constitutes an overriding interest. Here, the alleged intimidation was based on a single, ambiguous, four-year-old statement that the girlfriend later disregarded. The trial court may have identified an overriding interest, but it failed to make any finding that the interest in preventing witness intimidation would be prejudiced unless defendant's mother was excluded from the courtroom during the girlfriend's testimony. Therefore, the court erred in partially closing the courtroom and violated defendant's constitutional right to a public trial. Further, the error was structural.

The convictions were reversed and the case was remanded for a new trial.

2019 COA 2. No. 17C A0772. People v. Fuerst.

Driving Under the Influence—Driving While Ability Impaired—Express Consent Statute— Breath and Blood Tests—Confrontation Rights.

Defendant backed his car into a pickup truck. A bystander told a police officer on the scene that after the accident, defendant asked her if she wanted his beer because he needed to hide it. Defendant performed several roadside sobriety tests. Based on his performance on these tests and the bystander's statement, the officer believed defendant was under the influence of alcohol. Defendant then elected to take a breath alcohol test, which showed that defendant's blood alcohol content was zero. The officer then asked defendant to take a blood test to test for drugs. Defendant initially refused, but after an officer told him his license would be revoked if he refused, defendant consented to the test. The blood test revealed 101 nanograms of Alprazolam, which is near the upper limit of the therapeutic range.

Before trial, defendant moved to suppress the blood test results. The trial court denied the motion. At trial, the jury found defendant not guilty of driving under the influence but found him guilty of driving while ability impaired and unsafe backing.

On appeal, defendant contended that the trial court erred in denying his motion to suppress the blood test because the officer violated his constitutional rights by requiring him to complete the blood test after he had already selected and completed the breath test. Defendant argued that the Expressed Consent Statute doesn't authorize an officer to request a drug test if the officer has already requested, and the suspect has completed, an alcohol test. Under the Expressed Consent Statute, if a police officer has probable cause to believe that a driver is under the influence of alcohol or drugs, the officer may request either the applicable alcohol tests, the applicable drug tests, or both, and the driver is obligated to complete them. The statute doesn't say an officer can only do one or the other. Accordingly, the procedure the officer employed didn't violate the Expressed Consent Statute. Because defendant's statutory claim fails, his constitutional claim necessarily fails. The trial court did not err in denying the motion to suppress.

Defendant also contended that the trial court violated his confrontation rights and CRS § 16-3-309(5) by admitting a laboratory report containing his blood test results. He contended that the witness who testified about the report and the blood test results wasn't sufficiently involved in the process of testing the blood sample and certifying the results. Here, the Colorado Bureau of Investigation (CBI) toxicologist, who was qualified as an expert in forensic science and forensic toxicology, testified about the report. The toxicologist led the process of reviewing the test results, employed the CBI's quality control process, and certified the results by signing the laboratory report. That fell within the meaning of "accomplishing" the report under CRS § 16-3-309(5). The laboratory report was admissible.

The judgment was affirmed.

2019 COA 3. No. 17CA1381. Garcia v. Colorado Cab Co. LLC.

Negligence—Personal Injury— Common Carrier/Passenger Relationship—Duty of Care—Rescue Doctrine.

A passenger in one of Colorado Cab Company's taxis got into an altercation with the cab driver, Yusuf. Garcia, who thought the cab was the one for which he had called, approached the cab, told the passenger to leave Yusuf alone, and told diem to stop fighting. Ultimately, the passenger assaulted Yusuf and Garcia and stole the taxi. The passenger then hit Garcia with the taxi, ran him over, and dragged him down the street.

Garcia suffered extensive injuries and sued Colorado Cab for negligence. Colorado Cab moved for summary judgment, arguing that it didn't owe Garcia a duty of care and that any breach of such duty did not proximately cause Garcia's injuries as a matter of law. The district court denied the motion. At trial, Colorado Cab moved twice for a directed verdict, based on the same reasoning in the summary judgment motion, and the district court denied those motions. A jury found for Garcia, and the district court entered judgment against Colorado Cab. The district court denied Colorado Cab's subsequent motion for judgment notwithstanding the verdict.

On appeal, Colorado Cab argued that the district court erred in determining that it owed Garcia a duty of care. In this case, Garcia alleged that Colorado Cab's failure to take safety measures caused his injuries, which is nonfeasance (the defendant's failure to prevent harm). In such cases, a duty exists only if there is a special relationship between the plaintiff and the defendant, which, as relevant here, is a common carrier/passenger relationship. No evidence showed that Garcia was a passenger or prospective passenger of the cab, so as a matter of law, there was no common carrier/ passenger relationship between Garcia and Colorado Cab. Further, Garcia does not fall under the "rescue doctrine," which extends a defendant's liability to a plaintiff who attempts to rescue someone (1) to whom the defendant owed a duty, and (2) who was in danger because of the defendant's negligence. Here, although Yusuf was in imminent peril, there was no evidence in the record that Garcia attempted to physically intervene. Therefore, there was no basis for extending any duty to Garcia, and the district court erred in denying Colorado Cab's directed verdict and post-trial motions.

The judgment was reversed and the case was remanded for the district court to enter judgment in Colorado Cab's favor.

2019 COA 4. No. 17CA1678. People in the Interest of G.S.S. Children's Code—

Juvenile Court—Delinquency—No-Bond Order—Speedy Trial.

G.S.S. was arrested and charged with two delinquent acts for threatening to shoot students at his middle school. He was placed in secure detention. At the initial detention hearing on May 2,2017, the district court ordered that G.S.S. be held without bond. Numerous hearings were held over the next several months regarding the status of G.S.S.'s release from detention. On August...

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