Summaries of Published Opinions, 0920 COBJ, Vol. 49, No. 8 Pg. 98

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49 Colo.Law. 98

Summaries of Published Opinions

Vol. 49, No. 8 [Page 98]

Colorado Lawyer

September, 2020

August, 2020

COLORADO SUPREME COURT

June 1, 2020

2020 CO 44. No. 17SC116. People in Interest of R.D.

First Amendment—True Treats— Social Media.

The Supreme Court reviewed whether the Court of Appeals erred in determining that threatening messages the juvenile defendant posted on Twitter were protected speech under the First Amendment. In so doing, the Court refined its earlier statements of the general framework for distinguishing a true threat from constitutionally protected speech and offered specific guidance for applying that test to statements communicated online.

The Court held that a true threat is a statement that, considered in context and under the totality of the circumstances, an intended or foreseeable recipient would reasonably perceive as a serious expression of intent to commit an act of unlawful violence. In determining whether a statement is a true threat, a reviewing court must examine the words used, but it must also consider the context in which the statement was made. Particularly where the alleged threat is communicated online, the contextual factors courts should consider include, but are not limited to (1) the statement’s role in a broader exchange, if any, including surrounding events; (2) the medium or platform through which the statement was communicated, including any distinctive conventions or architectural features; (3) the manner in which the statement was conveyed (e.g., anonymously or not, privately or publicly); (4) the relationship between the speaker and recipient(s); and (5) the subjective reaction of the statement’s intended or foreseeable recipient(s).

The Court of Appeals’ judgment was reversed and the case was remanded with instructions to return the case to the juvenile court to reconsider the adjudication under the refined framework.

2020 CO 45. No. 18SC445. People v. Jones. Statutory Interpretation—Sixth Amendment— Closure—Public Trial—Child Abuse—Person—Rule of Lenity—Structural Error.

The Supreme Court held that the trial court’s exclusion of defendant’s parents during the testimony of two of his children constituted a partial closure of the courtroom. Further, because the trial court made no findings pursuant to Waller v. Georgia, 467 U.S. 39 (1984), before closing the courtroom, and a remand for additional findings cannot remedy that oversight, it violated defendant’s Sixth Amendment right to a public trial. Because that error was structural, Jones is entitled to a new trial.

The Court also concluded that it cannot discern the legislature’s intent regarding a defendant’s criminal liability under the child abuse statute for injury he or she caused to an unborn fetus who is later born alive with the consequences of that injury. Under the rule of lenity, the Court therefore vacated defendant’s conviction for child abuse and concluded that he may not be retried on that charge.

2020 CO 46. No. 18SC686. Richardson v. People. Waiver—Juror Qualification— Disqualification of a Judge.

The Supreme Court considered whether a trial judge reversibly erred by permitting his wife (Juror 25) to serve on a jury in a criminal case over which he presided. Because defendant did not object to Juror 25 sitting on the jury, the Court concluded that he waived his challenge as to that juror. The Court also concluded that in the absence of a contemporaneous objection Opinionsthe trial judge did not have a duty to excuse Juror 25 on his own or to disqualify himself

Accordingly, the Court of Appeals’ judgment was affirmed.

2020 CO 47.No. 20SA87. In re Marriage of Wollert. Motion to Restrict Parenting Time— When a Hearing Must Be Held—Particularity Requirement

In this original proceeding, the Supreme Court considered when a motion to restrict parenting time pursuant to CRS § 14-10-129(4) requires a hearing within 14 days of the motion’s filing. The Court held that the particularity requirement in CRCP 7(b)(1) provides the proper standard to review a § 14-10-129(4) motion. Here, because respondent’s motion to restrict parenting time was sufficiently particular under Rule 7(b)(1), a hearing on that motion was required within 14 days pursuant to § 14-10-129(4). Accordingly, the magistrate erred in not holding a hearing and the district court erred in adopting the magistrate’s order

June 8, 2020

2020 CO 48. No. 18SC41. People in Interest of J.D. Roles of Juvenile Magistrates—Final Judgment and Order—Deferred Adjudication.

The People sought review of the Court of Appeals’ judgment reversing the district court’s order voiding the juvenile magistrate’s ruling. The district court had found that the juvenile magistrate lacked jurisdiction to grant J.D.’s motion to withdraw his guilty plea and, further, that J.D.’s sole remedy for a failure of his counsel to render effective assistance in advising him concerning his deferred adjudication was to file a petition with the court for reinstatement of his review rights nunc pro tunc. By contrast the Court of Appeals found that the juvenile magistrate had jurisdiction to entertain J.D.’s Crim. P. 32(d) motion to withdraw his guilty plea because it was a motion in a delinquency case that the magistrate had been appointed to hear, and it was not a motion seeking review of any prior order of the magistrate.

The Supreme Court held that because a juvenile magistrate is not prohibited, either by statute or court rule, from revisiting his or her prior rulings, decrees, or other decisions in a case that the magistrate has been properly appointed to hear, unless and until the proceedings have culminated in a final order or judgment, and because a guilty plea, prior to sentencing and entry of a judgment of conviction, does not constitute a final judgment or order, the district court erred in ruling that the magistrate lacked jurisdiction over the juvenile’s Crim. P. 32(d) motion to withdraw his guilty plea.

Accordingly, the Court of Appeals’ judgment was affirmed, although on different grounds

2020 CO 49. No. 18SC144. Campbell v. People. Confrontation Clause—Constructive Amendment— Habitual Offender

The Supreme Court reviewed whether the trial court plainly erred by permitting an expert to testify about a DNA profile developed by a non-testifying analyst. The Court held that any error in allowing the expert to testify about the DNA profile was not plain at the time of trial or the time of appellate review.

The Court also reviewed whether the prosecution constructively amended the habitual offender charge against defendant by mislabeling one of defendant’s prior felony convictions in the charging document. The Court concluded that the prosecution adequately alleged defendant was convicted of a specific felony and proved that prior conviction as alleged. Accordingly, the Court concluded that the mislabeled prior felony resulted in a simple variance that does not require reversal.

The Court of Appeals’ judgment was affirmed and the case was remanded with directions

2020 CO 50. No. 19SA106. Jacobs v. People. Summary Judgment Certification—Summary Judgment Orders—Water Storage—Civil Penalties

In this appeal from a number of water court orders, defendants contended that the water court erred in (1) granting summary judgment for plaintiffs and partial summary judgment for the third-party defendant; (2) imposing civil penalties for defendants’ violations of an administrative order requiring them to cease and desist unlawfully storing state waters in two ponds on their properties; and (3) certifying its summary judgment rulings as final pursuant to CRCP 54(b)

The Supreme Court concluded that the water court properly exercised its discretion in certifying its summary judgment orders pursuant to CRCP 54(b) and thus this appeal was properly before the Court. The Court next concluded that the water court properly granted both plaintiffs’ summary judgment motion and the third-party defendant’s motion for partial summary judgment because the summary judgment record established, as a matter of law, that (1) defendants did not comply with the administrative order requiring them to cease and desist the unlawful storage of water in the ponds on their properties, and (2) the third-party defendant did not breach an agreement between it and defendants that defendants claimed satisfied their obligations under the administrative order. Finally, the Court concluded that the water court properly imposed civil penalties under CRS § 37-92-503(6)(a)(II).

Accordingly, the Court affirmed the water court’s judgment, concluded that both plaintiffs and the third-party defendant are entitled to an award of the reasonable attorney fees that they incurred in this appeal, and remanded this case to the water court to allow that court to determine the amount of fees to be awarded.

2020 CO 51. No. 19SC251. Rocky Mountain Planned Parenthood, Inc. v. Wagner. Premises Liability Act—Predominant Cause—Duty

In this case arising from the 2015 mass shooting at a Planned Parenthood facility in Colorado Springs, the Supreme Court considered two narrow questions: (1) whether plaintiffs introduced sufficient evidence to establish a genuine issue of material fact as to whether the shooter’s conduct was the “predominant cause” of plaintiffs’ injuries such that the facility’s conduct, even if it contributed to such injuries, could not be a substantial factor in causing them; and (2) whether plaintiffs established a genuine issue of material fact as to whether the facility’s parent organization owed them a duty of care.

As to the first question, the Court concluded, without expressing any opinion on the merits of this case, that plaintiffs presented sufficient As to the...

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