Colo., SCt. Jan. 11, 2010

No. 08SC636 Stanton v. Schultz.Issue Preclusion—Alternative Judgments.

The Supreme Court reviewed the court of appeals’ determination that a previous federal court ruling does not preclude Schultz’s present state malpractice claim against his former attorneys. The federal district court relied on three alternative grounds in denying Schultz’s post-conviction motion for a new trial. In affirming the district court’s ruling, the court of appeals relied on one of these grounds, expressly declining to consider the remaining two.

The Court held that when a trial court relies on alternative grounds in its judgment and the appellate court affirms on only one ground and declines to reach the others, preclusive effect extends only to the ground that was actually considered and relied on by the appellate court. Thus, preclusive effect extends only to the ground actually relied on by the Tenth Circuit, and Schultz may relitigate the other two issues. The judgment was affirmed.

No. 08SC936. People v. Bergerud. Right to Counsel—Sixth Amendment—Fundamental Choices—Fundamental Decisions—Right to Testify—Duty to Investigate—Right to Defend—Right to Enter a Plea—Complete Breakdown of Communications—Substitute Counsel—Pro Se.

The Court of Appeals determined that plaintiff Bergerud was entitled to a new trial after the trial court denied his motion for substitute counsel. The Supreme Court granted the People’s petition for certiorari to consider whether Bergerud’s right to counsel had been improperly denied.

Bergerud’s motion for new counsel implicated three of his trial rights: (1) the right to enter a plea of not guilty; (2) the right to testify; and (3) the duty of defense attorneys to reasonably investigate possible defense strategies. The Court determined that although Bergerud’s defense lawyers did not impermissibly usurp their client’s right to enter a plea of not guilty, the trial record was insufficient to determine whether others of Bergerud’s trial rights were violated by his attorneys’ actions. Had his trial rights been violated, the denial of Bergerud’s request for substitute counsel would have resulted in a constitutionally offensive choice between continuing with counsel or exercising other guaranteed rights. Accordingly, the Court remanded the case for further factual findings by the trial court to resolve ambiguities in the record.

No. 09SA228. People v. Broder. Invoking Right to Counsel—Miranda Rights—Fifth Amendment—Ambiguous Request for Counsel—Failure to Request Counsel.

In this interlocutory appeal pursuant to C.A.R. 4.1 and CRS § 16-12-102(2), the People sought reversal of the trial court’s ruling suppressing statements obtained during the custodial interrogation of defendant Broder. The trial court ordered suppression after finding that Broder made an unambiguous response to a question of whether he wanted an attorney, and that subsequent questioning by the interrogating officer did not scrupulously honor Broder’s request for counsel.

The Supreme Court held that Broder’s request for counsel was ambiguous; therefore, the interrogating officer did not violate Broder’s Fifth Amendment rights by continuing to question him to clarify whether he intended to invoke his right to counsel. The trial court’s order suppressing Broder’s statements was reversed.

No. 09SA56. People v. Nevarez-Zambrano. Criminal Impersonation—Motion to Change Venue—"An Act in Furtherance" of the Crime.

Deputies with the Weld County Sheriff’s Department executed a search warrant of a tax preparation service in Greeley, Colorado, which is located in the Nineteenth Judicial District (J.D.). Among documents seized were defendant’s Internal Revenue Service Forms and accompanying W-2 Wage and Tax Statements. The People filed criminal impersonation charges against defendant in the Nineteenth J.D. Defendant filed a motion to change venue pursuant to CRS § 18-1-202, arguing that venue was improper because neither the crime nor "any act in furtherance" of the crime occurred in the Nineteenth J.D. The trial court granted the motion and ordered that the case be transferred to the Thirteenth J.D.

On appeal, the People argued that defendant committed "an act in furtherance" of the crime of criminal impersonation in the Nineteenth J.D., because he filed his tax returns with the assistance of the tax service in Greeley. The Supreme Court disagreed. Defendant would have "fully completed" the alleged crime of criminal impersonation prior to the filing of any tax returns. Because defendant’s W-2 statements show that he earned wages from various employers in Yuma, Colorado, which is located in the Thirteenth J.D., the Court affirmed the trial court’s transfer of the case to the Thirteenth J.D.

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