Colo Ct Appeals Nov. 25, 2009

Colorado Court of Appeals OpinionsNovember 25, 2009

The Court of Appeals summaries are written for the Colorado Bar Association by licensed attorneys Teresa Wilkins (Denver) and Paul Sachs (Steamboat Springs). Please note that the summaries of Opinions of the Colorado Court of Appeals are provided as a service by the Colorado Bar Association and are not the official language of the Court. The Colorado Bar Association cannot guarantee the accuracy or completeness of the summaries.

No. 07CA0896. People v. Neuhaus. Conditional Guilty Plea. Defendant appealed the trial court’s order denying his motion to suppress. The appeal was dismissed.

The charges filed against defendant were based on a rifle, a shotgun, and ammunition found in a warrantless search of a car that defendant had been driving. Defendant filed a pretrial motion to suppress evidence of the weapons and ammunition at trial. The trial court denied the motion. Defendant then pled guilty to one count of possession of a weapon by a previous offender, and the prosecution dismissed the remaining charges. The court approved the parties’ stipulation, which included the express condition that defendant was permitted to appeal the trial court’s ruling on his suppression motion. If the trial court’s order denying the suppression motion was reversed, the prosecution would allow defendant to withdraw his guilty plea and would dismiss the charges.

The issue in this case was whether conditional guilty pleas are authorized pursuant to Colorado law. Colorado does not have a statute or court rule authorizing conditional guilty pleas, and the issue has not been definitively answered by the Colorado Supreme Court.

The general rule in Colorado is that a valid guilty plea waives the right to attack most pretrial decisions, including orders denying defendants’ motions to suppress. Because Colorado does not have a statute or court rule authorizing conditional guilty pleas, the general rule prevails unmodified. Accordingly, defendant’s guilty plea forfeited the right to appellate review of the trial court’s denial of his motion to suppress, and his appeal was dismissed. However, because defendant’s plea was expressly based on the condition that he be allowed to pursue this appeal, he must be permitted, if he desires, to withdraw his guilty plea when this case is returned to the trial court.

No. 07CA2279. People v. Crawford. Theft by Receiving—Aggregate—Value—Evidence. Defendant appealed the judgment of conviction entered on a jury verdict finding her guilty of one count of theft by receiving property valued between $500 and $15,000, a class 4 felony. The judgment was affirmed.

Defendant contended the district court erred by allowing the jury to aggregate the value of the stolen items, rather that requiring the prosecution to prove that she had received a "singular thing of value" worth between $500 and $15,000. Defendant was convicted of violating CRS § 18-4-410(4), which at the time provided: "Where the value of the thing involved is five hundred dollars or more but less than fifteen thousand dollars, theft by receiving is a class 4 felony." The phrase "thing involved" in subsections (2) through (5) of the statute refers back to the phrase "anything of value" to describe the substantive offense. According to plain English usage, the word "anything," used in conjunction with the words "of value," includes the plural and the singular.

Further, the offense was complete on receipt, even if the items were separately disposed. Therefore, the value of things received and disposed of may be aggregated under subsections (2) through (5). Here, the single criminal impulse analysis supported defendant’s conviction, because all the stolen property belonged to the same victim, was stolen in one incident, was subject to one police investigation, and was described in the same testimony at trial. Accordingly, the court correctly instructed the jury by using the special interrogatory permitting aggregation of the values of the stolen items.

Defendant also contended that the evidence was insufficient to establish that she received stolen property with a value between $500 and $15,000. However, competent testimony concerning the market value of the stolen items was sufficient to sustain the jury’s verdict. The judgment of conviction was affirmed.

No. 08CA0079. People v. Laeke. Not Guilty by Reason of Insanity—Jury Trial—Due Process—Constitutional Right—Waiver. Defendant appealed the trial court’s judgment of not guilty by reason of insanity (NGRI). The judgment was reversed.

Defendant contended that he had a constitutional and statutory right to a jury trial, and that the trial court erred by entering an NGRI judgment over his objection and without obtaining a personal jury trial waiver from him. An NGRI plea includes a not-guilty plea. Therefore, after a court orders and receives a sanity evaluation, the court must immediately set the case for trial. The fact finder then must determine the defendant’s guilt on the underlying charges. If the defendant is found guilty, the mens rea element has impliedly been met. If the jury finds the defendant not guilty, it must answer special interrogatories and explain whether it found the defendant NGRI or not guilty for other reasons. If it found the defendant NGRI, the court must commit the defendant to the custody of the Department of Human Services until the defendant is found eligible for release. If it found the defendant not guilty for other reasons, the defendant is discharged from custody.

Here, the prosecution conceded defendant’s insanity. However, defendant objected to his counsel’s entry of a plea of NGRI, contended he did not commit the underlying charge, and did not personally waive a jury trial. Accordingly, defendant was entitled to a jury trial on the substantive offense and on the sanity determination, and he did not waive that right. The trial court’s judgment finding him insane and committing him to the Colorado State Mental Hospital in Pueblo was reversed, and the case was remanded for a jury trial consistent with the procedures detailed in CRS § 16-8-105.5.

No. 08CA2492. Baldwin v. Huber, Executive Director of the Motor Vehicle Division, Colorado Department of Revenue. Driver’s License—Revocation—Evidence—Hearsay—Reasonable Suspicion—Traffic Stop—Probable Cause. Petitioner (licensee) appealed the district court judgment affirming the revocation of her driver’s license by the Department of Revenue (Department) for driving with an excessive breath alcohol content (BAC). The judgment was affirmed.

Licensee was arrested for driving under the influence of alcohol (DUI). She took a breath test at the police station within two hours of the time of driving. The breath test showed licensee’s BAC to be more than twice the statutory limit for revocation, and she was served with a notice of revocation on that basis.

Licensee contended that the revocation must be reversed because there was "no reliable trustworthy evidence" in the administrative record to support the hearing officer’s conclusion that there was reasonable suspicion for the initial traffic stop. However, evidence at the revocation hearing showed that licensee was weaving, had an odor of an alcoholic beverage on her breath, had red and watery eyes, and had admitted to drinking. This evidence was sufficient to support the hearing officer’s conclusions that there was reasonable suspicion to justify the initial traffic stop and probable cause to justify her later arrest in this incident.

In addition, the hearsay assertions of the arresting officer that licensee was stopped for weaving were signed and sworn, and were made by him in the course of his duties as a police officer. Licensee had the right to subpoena this officer or any of the other police officers involved, but failed to do so. Thus, licensee’s arrest and the request to submit to alcohol testing were fully justified under the record. Moreover, it is undisputed that licensee’s breath test showed that her BAC was excessive. Consequently, the hearing officer’s ultimate finding that licensee drove with an excessive BAC is supported by substantial evidence in the record as a whole. Therefore, the Department properly revoked licensee’s driver’s license, and the district court properly upheld the revocation.

No. 08CA2615. Hice v. Lott. Summary Judgment—Necessity for Expert Testimony—Tort Versus Breach of Contract Claims—Standard of Care in Negligence by a Professional. In this action seeking to recover damages based on allegedly "inaccurate" and "inflated" real estate appraisals, plaintiff Shannon Hice (buyer) appealed the summary judgment entered in favor of defendants Katrina Lott and Sheila Middendorf (appraisers). The judgment was affirmed.

Buyer had a lease purchase option on real property with a dwelling on it in Brighton. Buyer asked the seller to obtain an appraisal. The appraisers valued the property at $336,000 and $410,000.

Buyer asked the seller to have the appraisers determine whether the dwelling was a "mobile home" that had been placed on a permanent foundation. Both appraisers stated the dwelling had been a "modular" home, but that it was classified as a single family residence because it was attached to a permanent foundation. Some modular homes were used as comparisons in the appraisals, but both appraisers stated the dwelling "was never a mobile home."

Buyer expended substantial money and time toward purchasing the property and then obtained a third appraisal. This appraisal stated that the dwelling had been "brought in as a mobile home," and that the property was worth less than $252,500 at the time of the earlier appraisals.

Buyer filed claims against the first appraisers for professional negligence, negligent misrepresentation, and breach of contract, arguing she would not have purchased the property if she had known it had been a mobile home. Buyer filed certificates of review, but her expert witness disclosure did not list a real estate appraiser. Instead, it listed a man who was both a licensed and certified installer of manufactured homes and a licensed real estate and insurance broker.

The appraisers filed a motion for summary judgment, arguing that buyer was required to prove, through expert testimony, what the appraisers’ standard of care was when appraising the property and that they had not satisfied that standard. They contended that the failure to endorse a standard of care expert was fatal to buyer’s claims. The trial court granted summary judgment in favor of the appraisers.

Buyer filed a motion to reconsider and argued for the first time that her contract claims were not the subject of the summary judgment motion. The trial court denied the motion to reconsider.

On appeal, buyer argued that her negligence claims did not require expert testimony to establish the standard of care. The Court of Appeals disagreed. A claim that a professional was negligent requires a plaintiff to show the professional’s conduct fell below the standard of care associated with that profession. Normally, an expert is required to explain the standard of care because ordinary persons aren’t familiar with it. An expert is not required if the standard of care does not require specialized or technical knowledge. Following an exhaustive analysis, the Court concluded that expert testimony was required to explain to jurors the differences between "modular homes" and "mobile homes" and how those differences affect appraisals.

The Court also rejected buyer’s contention that expert testimony was not necessary to recover under her breach of contract claim. Because this new theory was raised only on her motion for reconsideration, it was not an abuse of discretion for the trial court to decline to reconsider or reverse its summary judgment ruling. The judgment was affirmed.

No. 09CA0872. People v. Curren. Crim.P. 35(c) Motion—Actual Conflict of Interest of Trial Counsel. The People appealed from an order vacating defendant’s first-degree murder conviction and ordering a new trial. The judgment was affirmed.

In June 1997, the corpses of two drug dealers were found in a ditch. Defendant, along with four others, allegedly assaulted and suffocated the dealers, took their money and drugs, and dumped their bodies in the ditch.

Defendant retained private trial counsel to represent him. He was charged with two counts of after-deliberation first-degree murder; two counts of felony first-degree murder; two counts of conspiracy to commit first-degree murder; two counts of conspiracy to commit aggravated robbery; two counts of aggravated robbery; and two mandatory sentence enhancers for crimes of violence. Prior to the scheduled 1998 trial, defendant absconded to Mexico.

Defendant was arrested in Mexico and returned to Colorado in 2001. Defendant became concerned trial counsel was not adequately preparing his case and retained second counsel to review trial counsel’s work. Defendant told second counsel that trial counsel had advised him to flee to Mexico (the allegation). Following a motions hearing, second counsel advised trial counsel of the allegation. The two counsels argued outside the courtroom, causing the court to request they leave the courthouse. They continued arguing in the parking lot. Trial counsel refused to cooperate with second counsel.

Trial counsel’s partner and second counsel then met with defendant at defendant’s request. Trial counsel’s partner advised defendant he would have to discharge either trial or second counsel. Defendant chose to continue with trial counsel. Trial counsel’s partner testified he was aware that if defendant made the allegation, whether true or not, then trial counsel would have to withdraw due to a conflict of interest. The trial court was never informed of the allegation.

The trial court granted defendant’s motion in limine, excluding any evidence of his having absconded to Mexico. On trial counsel’s advice, defendant did not testify at the trial.

Prior to trial, the prosecution dismissed the conspiracy counts. The jury found defendant not guilty of premeditated first-degree murder and its lesser-included counts of second-degree murder and manslaughter; not guilty of one, and guilty of the other, aggravated robbery count; and guilty of both felony murder counts. Defendant received two consecutive life sentences on the felony murder convictions and a concurrent sentence of twenty-four years for the aggravated robbery conviction.

On direct appeal, the felony murder convictions were affirmed. However, the aggravated robbery conviction was vacated because it merged into one of the felony murder convictions.

Following the mandate from the direct appeal, defendant filed a Crim.P. 35(c) motion, alleging trial counsel had an actual conflict of interest. The trial court concluded that trial counsel had not advised defendant to abscond to Mexico. However, it found that defendant had made the allegation, which established an actual conflict of interest because it placed trial counsel in the position of having to defend his client as to the pending charges and himself as to the allegation. The trial court vacated defendant’s convictions and ordered a new trial.

The prosecution appealed, arguing it was error to conclude an actual conflict of interest existed. The Court of Appeals disagreed. The Court noted that the trial court found, with support in the record, that defendant made the allegation to second counsel. Trial counsel was very upset when second counsel disclosed this to him; his conflict under Colo. RPC 1.7 was significant and sanctionable. The Court affirmed the trial court’s finding that trial counsel operated under an actual conflict of interest, and agreed with the trial court that a new trial was needed.