Summaries of Published Opinions, 0621 COBJ, Vol. 50, No. 6 Pg. 86

PositionVol. 50, 6 [Page 86]

50 Colo.Law. 86

Summaries of Published Opinions

Vol. 50, No. 6 [Page 86]

Colorado Lawyer

June, 2021


April 1, 2021 2021COA40. No. 18CA0284. People v. Zimmer.

Discovery—Mandatory Competency Evaluation— Preliminary Competency Finding.

Defendant tried to initiate a romantic relationship with the victim. After the victim rebuffed his advances, defendant sent her dozens of text messages over the course of two days, some of which threatened that he would rape and kill her. Defendant also went to the victim's home and left a bag hanging on the door containing a knife and a threatening message. A jury found defendant guilty of stalking. Between trial and sentencing, defense counsel filed a formal competency motion. The trial court denied the motion and sentenced defendant.

On appeal, defendant contended that the prosecution failed to disclose an exhibit to the defense before introducing it at trial, which constituted a discovery violation and violated his right to due process. It is unclear from the record whether the prosecution failed to disclose the exhibit. However, assuming the allegation is true, any error was harmless beyond a reasonable doubt because the properly admitted evidence of defendant's guilt was overwhelming.

Defendant also argued that the trial court erred by failing to order a competency evaluation before trial or, alternatively, between trial and sentencing. The court, defense counsel, or the prosecution may raise the issue of competency. Once the defendant's competency is properly raised with supported facts, the court may make a preliminary finding of competency or incompetency. If the court determines that it has insufficient information to make a preliminary finding, it must order a competency evaluation. The court must also order a competency evaluation if the court makes a preliminary finding and either party objects to it within seven days. In evaluating whether a written competency motion triggers the statutory procedure, the court's task is limited to evaluating whether the proffered facts support counsel's good faith doubt about the defendant's competency.

As to the pretrial competency evaluation request, defense counsel stated that he had concerns about defendant's competency but did not explain what those concerns were or file a motion. Therefore, his statement gave the trial court no reason to believe that defendant was incompetent before trial, and the court did not err by failing to order a competency evaluation at that time. However, the post-trial competency motion set forth facts that included defendant's belief that the witness who testified as the victim was an imposter and thus supported defense counsel's good faith doubt about defendant's competency. Accordingly, the trial court erred in not making a preliminary competency finding, and this error was not harmless.

The judgment of conviction was affirmed, the sentence was vacated, and the case was remanded with directions for further proceedings.

2021COA41. No. 18CA1747. People v. Bowers.

First Degree Assault—Strangulation—Extreme Indifference—Serious Bodily Injury—Expert Testimony—Prosecutorial Misconduct.

Defendant had an altercation with his girlfriend K.B. during which he strangled her; grabbed her arms, causing significant bruising; and headbutted her, causing a laceration above her eye. A jury found defendant guilty of first degree assault with extreme indifference.

On appeal, defendant contended that there was insufficient evidence of first degree assault because his conduct did not meet the definition of serious bodily injury under the relevant statutes. Here, defendant's "conduct" was strangulation, and there was expert testimony that the strangulation and resulting constriction of K.B.'s carotid artery had placed her at a substantial risk of death There was also photographic evidence of K.B.'s injuries. Moreover, the jury could reasonably infer from K.B.'s altered state and memory loss that her brain had been deprived of oxygen for a time. Viewing this evidence in the light most favorable to the prosecution, there was sufficient evidence to support a jury finding that K.B. suffered serious bodily injury.

Defendant also argued that reversal is required due to statements made by law enforcement witnesses at trial. Defendant did not object to the statements at trial. Defendant contended that two officers improperly offered expert testimony that K.B. was disoriented because she had been strangled. This testimony about their observations of the victim's mental and physical condition at the hospital was not improper, but in any event, any error was harmless because it was cumulative of the physician's testimony. And the testimony about the types of strangulations cases one officer observed was elicited by the defense and defense counsel did not object to the statement's admission. Further, the investigator's testimony about strangulation injuries and doctors' frequency in signing serious bodily injury forms was also cumulative of other evidence. Accordingly, the district court did not abuse its discretion.

Defendant further contended that the prosecution engaged in misconduct throughout the trial. As to only the investigator, the prosecution's examination was improper but does not warrant reversal. And as to the closing statement, the prosecution did not misstate the definition of reasonable doubt or the law on serious bodily injury, did not improperly refer to testimony, and did not improperly argue a cycle of violence theory because it was supported by the evidence.

Defendant also requested correction of the mittimus, which reflects that he pleaded guilty to first degree assault with extreme indifference.

The judgment was affirmed and the case was remanded for correction of the mittimus.

2021 COA42. No. 19CA1117. People v. Argott.

Sentencing—Probation— "Wobbler" Statute— Converting Felony to Misdemeanor.

Defendant pleaded guilty to a drug felony. The plea agreement included a stipulation that at the sentencing hearing the court would place defendant on probation without imposing a jail sentence. At the sentencing hearing, the court put defendant on supervised probation for one year; ordered him to complete a substance abuse e valuation and comply with its recommendations; and informed him that under CRS § 18-1.3-103.5(2) (a), a "wobbler" statute, the court would reduce his felony conviction to a misdemeanor if he successfully completed his probation.

Defendant's probation was later revoked, and the court resentenced him to probation with 90 days in jail with work release. Defendant's probation was revoked a second time, and the court resentenced him to unsupervised probation on the condition that he serve 130 days in a community treatment center with work release. After defendant successfully completed the days in a community treatment center, he asked the court to reduce his sentence to a misdemeanor, which the court denied.

On appeal, defendant contended that the court erred when it decided that he was not eligible for relief under CRS § 18-1.3-103.5(2)(a) because it had previously revoked his probation. Subsection 103.5(2)(a) requires a court to reduce a felony drug conviction to a class 1 misdemeanor drug conviction if it finds that the defendant has successfully completed any community-based probation sentence. The statute does not exclude defendants who have had courts revoke their probation and whom courts have then resentenced to probation. Accordingly, the court erred. However, defendant is not automatically entitled to an order reducing his felony conviction to a class 1 misdemeanor; the court must decide whether he has "successfully completed" his probation.

The order was reversed and the case was remanded for further proceedings.

2021 COA43.No. 19CA2125. Johnson v. Toohey.

Inmate Lawsuits—"Civil Action"—Filing Fees— Colorado Governmental Immunity Act—CRS § 13-17.5-102(1).

Johnson is an inmate in the Colorado Department of Corrections. He filed 10 separate packets with the trial court, each of which consisted of two documents. One document was tided "NOTICE OF CLAIM," and in all but one of the documents, Johnson wrote that he would provide additional information once he filed his "actual complaint" and stated that he had mailed copies of the documents to the Attorney General's office. The second document in each packet was labeled "Motion for the Court to Grant the Following." It asked the court to make the "notice of claim" apart of the court record and to send him filing forms for state-level lawsuits, forms for pro se litigants with no legal training, and an in forma pauperis application.

Johnson made 10 different allegations against various parties in the 10 packets. The trial court treated the documents as complaints and decided they were substantially frivolous, groundless, and malicious, and it struck them all. It also assessed filing fees and ordered that the fees be taken from Johnson's inmate account.

On appeal, Johnson argued that the court acted prematurely when it struck the documents because they were notices of claim under the Colorado Governmental Immunity Act (CGIA). The documents here were notices of claim because they were labeled as such, indicated that Johnson intended to file an actual complaint later, and generally followed the requirements of CRS § 24-10-109(1) to (3) by setting forth specific allegations and naming various prison employees. However, the trial court did not err in striking them because under the CGIA, Johnson was required to complete the notice of claim process before filing an action with the court. Therefore, he should have waited until the Attorney General had denied his claims or 90 days had passed...

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