Summaries of Published Opinions, 0519 COBJ, Vol. 48, No. 5 Pg. 80

Position:Vol. 48, 5 [Page 80]

48 Colo.Law. 80

Summaries of Published Opinions

Vol. 48, No. 5 [Page 80]

Colorado Lawyer

May, 2019

COLORADO COURT OF APPEALS

March 7, 2019

2019 COA 30. No. 16CA0750. People v. Gonzales.

Criminal Law—Evidence—Authentication—Voicemail Recording—Photographs.

Gonzales grew up down the street from the victim. He was sexually attracted to the victim from a young age. Gonzales eventually moved away from the neighborhood. Years later, Gonzales broke into the victim's house and waited a substantial time for the victim to return. When the victim returned, Gonzales repeatedly stabbed him in the neck, killing him. Gonzales then sexually assaulted the victim's dead body and attempted, unsuccessfully, to set the house on fire to destroy the evidence. Gonzales fled the scene with a credit card, a debit card, and cash that he had taken from the victim's wallet. Gonzales was charged and convicted of first degree murder with intent and after deliberation, first degree felony murder, abuse of a corpse, stalking, arson, burglary, and aggravated robbery.

On appeal, Gonzales argued that the trial court erred in admitting a tape recording of a voicemail that he allegedly left for the victim because the prosecution did not properly authenticate the recording of the voicemail. Here, the victim's sister found the recording in his house after the premises were released to her by the police. A police officer who interrogated Gonzales at length testified that Gonzales's voice was heard on the voicemail. Gonzales did not claim that the recording was falsified or manipulated. These uncontested facts supported a CRE 901 finding that the voicemail was what the prosecutor purported it to be, a voicemail left by Gonzales for the victim. Accordingly, the trial court did not abuse its discretion in admitting the voicemail.

Gonzales also argued that the trial court abused its discretion in admitting a photograph showing Gonzales's tattoos because it was both irrelevant and highly prejudicial. The tattoo on one arm says "CHUBBY" and the tattoo on the other says "CHASER." Gonzales admitted both that he was he was attracted to larger men and that he killed a person who fit that physical description. On these facts, the jury was entitled to consider the probative value of the tattoos.

The judgment was affirmed.

2019 COA 31. No. 16CA2229. People v. Roehrs. Criminal Law—Judge—Recusal—Personal Knowledge—Extrajudicial Source Doctrine— Colorado Code of Judicial Conduct Rule 2.11 (A) (1)—Appearance of Impropriety—Disqualification.

Roehrs was an interested party in a dependency and neglect hearing at which Judge Cisneros presided. At the hearing, Sergeant Couch testified concerning Roehrs's presence at the scene of an investigation that he was conducting. During Sergeant Couch's testimony, Roehrs stood up, walked toward the witness stand, and said, "You're a liar. I am going to have your job." Judge Cisneros asked Roehrs to leave the courtroom, which Roehrs did. After Sergeant Couch's testimony, Roehrs threatened him in the courtroom hallway. Judge Cisneros later called Sergeant Couch and the attorneys into her chambers to discuss what had happened outside the courtroom.

The People charged Roehrs with retaliation against a witness, harassment, and intimidating a witness. Before trial, Roehrs's counsel moved to recuse Judge Cisneros. Judge Cisneros denied the motion, ruling that Roehrs failed to prove bias or personal knowledge of the disputed facts. Judge Cisneros presided over Roehrs's criminal trial. Roehrs contested a number of factual issues. A jury found Roehrs guilty of retaliation against a witness and harassment.

On appeal, Roehrs contended that the trial court erred in denying her motion to recuse because she had personal knowledge of disputed facts and was a material witness to Roehrs's conduct; thus, there was an appearance of bias or prejudice. Judge Cisneros was not a likely material witness. But under Colorado Code of Judicial Conduct Rule 2.11(A)(1), a judge need not be a likely material witness for disqualification to be mandated; all that is required is personal knowledge of the facts that are in dispute. The Court of Appeals examined the scope of the extrajudicial source doctrine and concluded that although knowledge gained in the course of a judge's courtroom duties does not normally prevent a trial judge from presiding over subsequent, related proceedings, when a trial judge witnesses all or part of a crime in the courtroom, she has personal knowledge of facts that are in dispute within the meaning of Rule 2.11(A)(1). Here, the judge witnessed part of the crime and thus had personal knowledge of disputed facts. Accordingly, Roehrs's motion was sufficient to raise an appearance of bias or prejudice and Judge Cisneros's continued participation in the trial was improper.

The judgment of conviction was reversed and the case was remanded with directions to grant appellant a new trial before a different judge.

2019 COA 32. No. 17CA0705. People v. Williams.

Criminal Law—Photo Lineup—Sixth Amendment—Motion to Continue—Sentencing—Habitual Criminal.

Defendant robbed the victim, an Uber driver, at knifepoint in a Denver alleyway. After the jury returned its verdict, the trial court held a hearing to determine whether defendant was a habitual criminal. Based on defendant's prior convictions for first degree assault (heat of passion) and two prior convictions for distribution of a Schedule II controlled substance, the trial court adjudicated him a habitual criminal and sentenced him to 64 years in prison.

On appeal, defendant argued that the pretrial photo lineup, from which the victim identified him, was impermissibly suggestive. He con- t ended that he was older than the other men in the photo array and there were impermissible differences in the clothing and tattoos depicted. Here, defendant's photo matched the victim's description and the filler photos depicted men who generally fit the witness's description. The number of photos in the array (six) and the details of the photos did not render the lineup impermissibly suggestive.

Defendant also contended that the trial court abused its discretion and violated his Sixth Amendment right to his counsel of choice by denying his motion for a continuance. The trial court considered the appropriate factors in balancing defendant's right to have counsel of his choosing against the efficient and effective administration of justice. The trial court's findings were supported by the record, and the court did not abuse its discretion in denying defendant's motion for a continuance.

Defendant next contended that the trial court abused its discretion by denying his motion for a continuance to allow the People to complete fingerprint testing and that completed testing would have allowed for the production of exculpatory evidence. Here, the fingerprint results were inconclusive and the prosecution did not have possession or control of any exculpatory fingerprint comparison results. Considering the totality of the circumstances, there was no error in the trial court's ruling on the motion.

Defendant further contended that the trial court erroneously sentenced him under the habitual criminal sentencing statute because two of his three prior felony convictions were permissively joined for trial. Defendant argued that because the two cases charging him with distribution of a Schedule II controlled substance were joined for trial under Crim. P. 13, they would have been tried together had he not entered guilty pleas, so his previous convictions for distribution should be treated as one conviction for habitual criminal purposes. Here, the offenses were joined for trial and would not have been tried separately. The prosecution failed to meet its burden to prove beyond a reasonable doubt that defendant's predicate felonies were separately brought and would have been separately tried had defendant not entered guilty pleas. The guilty pleas resulted in one conviction for purposes of the habitual criminal sentencing statute and the trial court erred in sentencing defendant under that statute.

The judgment of conviction was affirmed. The case was remanded for the trial court to impose a new sentence and to correct the mittimus.

2019 COA 33. No. 17CA2388. Colorado Real Estate Commission v. Vizzi. Administrative Law—Real Estate License—Transaction-Broker—Mandatory Duties—Federal Antitrust Law—Due Process—Sanctions.

Vizzi entered into contracts in 2013 and 2014 with three clients to provide unbundled real estate brokerage services in exchange for a flat fee. In one instance, he contracted only to list the client's property on the Multiple Listing Services (MLS) list. In two other instances, he contracted only to provide a yard sign, a lock box, and centralized showing services, and to list the properties on the MLS. An anonymous informant notified the Colorado Real Estate Commission (Commission) of Vizzi's practices and the Commission charged Vizzi with failing to fulfill his statutory duties under CRS § 12-61 -807(2). An administrative law judge (ALI) found that Vizzi was required to provide his clients all of the services listed in CRS § 12-61-807(2) and failed to do so in the transactions at issue. The Commission adopted the ALI's findings of fact and conclusions of law and modified the discipline imposed on Vizzi to include public censure.

On appeal, Vizzi maintained that he was permitted by statute to contract out many of the duties imposed on transaction-brokers under CRS § 12-61-807(2) and the contracts in question successfully accomplished that goal. A transaction-broker's statutory duties are mandatory and cannot be contracted away. Here, FROM THE COURTS COLORADO COURT OF APPEALS the...

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