Slip opinions decided 2019 — Colorado Public Domain Citations

The Supreme Court considered whether a 1909 water decree adjudicates a water right in certain springs. Because the decree failed to set forth required indicia of enforceability—including an appropriation date, a priority number, and quantification information—with respect to the springs, the Court answered the question in the negative. A decree must measure, limit, and define both the nature and extent of a water right. The priority, the location of diversion at the supply's source, and the amount of water for application to a beneficial use are all essential elements of the appropriative water right. Of these, priority is the most important stick in the water rights bundle because priority is a function of appropriation and adjudication indeed, the purpose of adjudication is to fix the priority of a water right. As the water court concluded, the 1909 decree clearly and unambiguously sets forth an unenforceable entitlement to receive and conduct water from the springs. Without indicia of enforceability, and in particular a priority number, the 1909 decree cannot be deemed to adjudicate a water right in the springs that can be enforced and administered. Therefore, the Court affirmed the water court's judgment.

The People challenged the decision of a division of the Court of Appeals that concluded that Travis's request to "look for and pay for a lawyer" was an invocation of her Sixth Amendment right to be represented by counsel of her choice. The Supreme Court held that Travis's request did not implicate her Sixth Amendment right to counsel of her choice and that the trial court's decision to deny Travis's request to continue her trial to "look for and pay for a lawyer" was not an abuse of discretion. Accordingly, the Court reversed the division's decision and remanded for proceedings consistent with this opinion.

Competency Proceedings. The Supreme Court addressed whether a trial court erred in requiring the defense to provide a copy of its sealed motion raising competency to the prosecution before conducting an initial competency evaluation of defendant. Because CRS § 16-8.5-102(2)(b) requires trial courts to consider defense motions raising competency without disclosing that motion to the prosecution, the Court determined that the trial court erred in concluding that Rule 2.9(A) of the Colorado Code of Judicial Conduct prohibits the trial court from conducting an ex parte review of the defense's motion. Accordingly, the Court made its rule to show cause absolute.

Jury Instructions—Self-Defense—Burden of Proof—Testimonial Evidence—Jury Deliberations—Abuse of Discretion—Harmless Error. Ray petitioned for review of the Court of Appeals' judgment affirming his convictions for attempted first degree murder, first degree assault, and accessory to first degree murder. The Supreme Court held that the district court did not err in instructing the jury regarding defendant's assertion that he acted in defense of himself and a third person because (1) the language of a self-defense-related instruction did not permit the jury to reconsider the court's determination, based on the evidence at trial, that the affirmative defense of person was available to defendant and (2) the jury was properly instructed concerning the People's burden to disprove that, and any, affirmative defense. Although error resulted from the district court's reliance on later-overruled case law permitting the jury to have unrestricted access to a witness recorded interview admitted as an exhibit at trial, when comparing the content of that exhibit with the other evidence admitted at trial, the error was harmless. The Court of Appeals' judgment was affirmed.

Taxation—Record Title—Restrictive Covenants. In this property tax case, the Supreme Court considered whether the restrictive covenants and bylaws of a hunting and fishing club render the club the true "owner" of the club grounds and therefore liable for property taxes, even though the club members hold record fee title to land parcels that comprise the club grounds. The Court held that such covenants and bylaws do not render the club the owner of real property for tax purposes. Colorado's property tax scheme reflects legislative intent to assess property taxes to the record fee owners of real property. The parcel owners in this case hold record title to their parcels, which they own in fee simple and can freely sell. They purchased their parcels with notice of, and subject to, the club's restrictive covenants and bylaws, which they can vote to amend or repeal. Because the parcel owners voluntarily agreed to the restrictive covenants and bylaws that facilitate the collective use of their property for recreational purposes, they cannot rely on these same restrictive covenants and bylaws to avoid property tax liability that flows from their record title ownership. The Court of Appeals' judgment was reversed and the Board of Assessment Appeals' order was reinstated.

Contracts—Attorney and Client—Attorney Fees. The Supreme Court granted certiorari review to determine the preclusive effect of an attorney disciplinary hearing on a subsequent civil suit. Because of admissions made by the party, the Court did not reach this question and vacated that portion of the Court of Appeals' opinion. The Court held that when an attorney enters into a contract without complying with Colo. RPC 1.8(a), the contract is presumptively void as against public policy however, a lawyer may rebut that presumption. The Court additionally held that the trial court did not abuse its discretion in awarding attorney fees at the trial level because the record supports the court's finding that the case was groundless, frivolous, and brought in bad faith. However, the Court held that the issues raised on appeal were legitimately appealable issues and, as such, do not warrant an award of fees against petitioner. The Court affirmed the Court of Appeals' judgment as to the merits on other grounds, affirmed the award of attorney fees at the trial level, and reversed the Court of Appeals' order remanding for a determination of appellate attorney fees.

Searches and Seizures—Cell Phones—Voluntary Disclosure. After defendant's arrest, defendant voluntarily disclosed his cell phone passcode to a police officer. The trial court concluded that defendant provided the passcode to the officer for a limited purpose. Later, the police obtained a warrant to search defendant's phone and used the previously provided passcode to execute the search warrant. Despite concluding that the search warrant was valid, the trial court suppressed the fruits of the search. The trial court concluded that the search was a consent search that exceeded the scope of defendant's consent because the police may not have been able to access the phone without defendant's passcode. The People brought this interlocutory appeal. The Supreme Court concluded that the search of the phone was not a consent search, but rather a search pursuant to a valid warrant. The Court also concluded that defendant did not manifest a legitimate expectation of privacy in the digits of his passcode because he voluntarily disclosed his passcode to a police officer after his arrest. Accordingly, law enforcement was at liberty to use the passcode to execute the search warrant.

Renewal of Motions—Preservation of Objections—Joinder—Cross-Admissibility of Evidence. In this case, the Supreme Court considered whether a criminal defendant's failure to renew at trial a pretrial objection to the prosecution's motion to join two separately filed cases waives the defendant's ability to challenge such joinder on appeal and, if not, whether the cases were properly joined here. The Court concluded that, to the extent People v. Barker, 501 P.2d 1041 (Colo. 1972), and People v. Aalbu, 696 P.2d 796 (Colo. 1985), required a defendant to renew at trial a pretrial objection to joinder or motion to sever, those cases are no longer good law because the renewal obligation they espoused is inconsistent with the current rules of criminal procedure. Thus, Bondsteel properly preserved his objection to the joinder of the two cases filed against him. Turning to the merits, the Court concluded that the trial court properly exercised its discretion in joining the cases at issue because the record supports the court's findings that the joinder of the two cases satisfied the requirements of Crim. P. 8(a)(2) and 13 and the joinder did not prejudice defendant. Accordingly, the judgment was affirmed.

Joinder—Cross-Admissibility of Evidence. This case required the Supreme Court to consider whether the trial court abused its discretion in consolidating two separate shoplifting cases filed against defendant. In defendant's view, proper consolidation requires the evidence of each incident to be admissible in a separate trial of the other. The Court concluded that the trial court did not abuse its discretion here. As an initial matter, the Court rejected defendant's contention that consolidation always requires the evidence of the respective incidents to be cross-admissible were there to be separate trials. To the contrary, when the cases are of the "same or similar character," consolidation is proper regardless of whether the evidence would be cross-admissible in separate trials. Proceeding to the merits, the Court concluded that the cases were of the same or similar character because the facts of the respective cases closely mirrored one another. Moreover, defendant had not shown that the consolidation was prejudicial because (1) the evidence would, in fact, have been cross-admissible in separate trials and (2) the facts of the incidents at issue were not disputed. Rather, defendant contested only the application of law to those facts. Accordingly, the judgment was affirmed.

Ditch Easement—Sufficiency of Resume Notice—Water Court Subject Matter Jurisdiction. The Supreme Court upheld the water court's entry of summary judgment affirming the validity of a change of water right, determining that the resume notice was sufficient to alert interested parties to the nature, scope, and impact of the proposed change despite an initial error in the location description for an impacted headgate. The Court affirmed the dismissal on other grounds, however, because all ancillary claims should have been dismissed for lack of subject matter jurisdiction after the notice was deemed sufficient.

This case principally required the Supreme Court to determine the appropriate standard of review for unpreserved claims of insufficient evidence and to apply that standard to decide whether legally sufficient evidence supported defendant's convictions here. The Court initially concluded that sufficiency of the evidence claims may be raised for the first time on appeal and are not subject to plain error review. Accordingly, appellate courts should review unpreserved insufficiency claims de novo (i.e., in the same manner as if the claims were preserved), and not under a plain error standard of review. Such a rule is consistent with Colorado's criminal procedure rules, long-standing precedent, and the nature of sufficiency claims, including the settled principle that a conviction that is based on legally insufficient evidence cannot stand. On the merits of defendant's sufficiency claims, the Court began by construing CRS § 18-3-404(1)(g), which bars sexual contact committed during treatment or examination for other than bona fide medical purposes or in a manner substantially inconsistent with reasonable medical practices. After determining that this provision is ambiguous, the Court employed settled tools of statutory construction and concluded that the provision applies to a doctor or other individual who is, or holds himself or herself out to be, a health treatment provider of any kind, and who knowingly subjects the victim to sexual contact while examining, treating, or purporting to examine or treat the victim for other than a bona fide medical purpose or in a manner substantially inconsistent with reasonable medical practices. Finally, applying this construction here, the Court concluded that the provision is neither facially overbroad nor unconstitutionally vague and that the prosecution presented sufficient evidence to support defendant's convictions. Accordingly, the Court affirmed the division's judgment, although its reasoning differs in some respects from that of the division majority.

The Supreme Court granted certiorari to review the Court of Appeals division's opinion affirming defendant's conviction for second degree burglary. For the reasons discussed in McCoy v. People, 2019 CO 44, __ P.3d __, announced the same day, the Court concluded that sufficiency of the evidence claims may be raised for the first time on appeal and are not subject to plain error review. Accordingly, appellate courts should review sufficiency claims de novo (i.e., in the same manner as if the claims were preserved), and not under a plain error standard of review, including when the claims involve preliminary questions of statutory construction. Because the division reviewed defendant's sufficiency claim for plain error and affirmed the trial court's ruling without considering the merits of defendant's assertion that insufficient evidence supported his conviction for second degree burglary, the Court reversed the portion of the judgment concerning that count and remanded this case with instructions that the division perform a de novo review of defendant's sufficiency claim.

The Supreme Court was asked to decide whether defendant is entitled to recover his attorney fees pursuant to a fee-shifting provision of a prior settlement agreement between him and plaintiffs. The fee-shifting clause at issue provided that the prevailing party in an action to enforce, by any means, any of the terms of the settlement agreement shall be awarded all costs of the action, including reasonable attorney fees. Here, plaintiffs' claims, in substance, sought relief based on allegations that defendant had breached the terms of the settlement agreement, and defendant responded by arguing that it was plaintiffs' claims that were inconsistent with that agreement. In these circumstances, the Court concluded that plaintiffs' claims constituted an effort to enforce the terms of the settlement agreement. Indeed, consistent with this conclusion, plaintiffs themselves had asserted a claim for fees pursuant to the fee-shifting clause at issue. Accordingly, the Court held that defendant, as the prevailing party on all claims, is entitled to recover his attorney fees pursuant to the settlement agreement's fee-shifting clause. The Court therefore reversed the water court's order denying an award of such fees and remanded the case for a determination of the trial and appellate fees to be awarded to defendant.

The Supreme Court considered whether the Eighth Amendment's prohibition on the government imposition of "excessive fines" applies to fines levied on corporations. Concluding that this Eighth Amendment protection does apply to corporations, the Court held that the proper test to assess the constitutionality of government-imposed fines requires an assessment of whether the fine is grossly disproportional to the offense for which it is imposed, as articulated in United States v. Bajakajian, 524 U.S. 321, 334 (1998). The Court of Appeals' ruling was thus reversed and the case was remanded to that Court for return to the Division of Workers' Compensation to determine whether the per diem fines at issue are proportional to the harm or risk of harm caused by each day of the employer's failure to comply with the statutory requirement to carry workers' compensation insurance.

In this habeas corpus appeal, the Supreme Court considered whether a district court may summarily dismiss a petition for lack of jurisdiction because the petitioner failed to include a warrant of commitment, as required by CRS § 13-45-101(1). The Court held that noncompliance with the warrant requirement does not deprive courts of jurisdiction over habeas corpus petitions. When the petitioner does not supply all the relevant warrants of commitment and the court believes that all the warrants are necessary for fair resolution of the habeas petition, the court should either ask the petitioner to provide the missing information or consider the petition based on the information provided. To the extent that Butler v. Zavaras, 924 P.2d 1060, 1062 (Colo. 1996), Evans v. District Court, 572 P.2d 811, 813 (Colo. 1977), Garrett v. Knight, 480 P.2d 569, 570–71 (Colo. 1971), and McNamara v. People, 410 P.2d 517, 517–18 (Colo. 1966) hold that noncompliance with the warrant requirement is jurisdictional, deprives the court of authority to act, and requires summary dismissal, the Supreme Court overruled these cases.

Feldman and the law firm Haddon, Morgan & Foreman petitioned for relief pursuant to C.A.R. 21 from a probate court order requiring the law firm to provide information to the special administrator concerning its representation of Feldman in a criminal prosecution for the murder of his wife, and to deposit funds held in its client trust account into the court registry. In response to the special administrator's assertion that Colorado's "slayer statute" applies to the funds at issue as proceeds of the decedent's life insurance policy, the probate court determined that if Feldman were later found, in the manner prescribed by the statute, to be the decedent's killer, he would be ineligible to receive those proceeds. Against that eventuality, the probate court found that compelling the return of the unearned funds in the firm's client trust account would be the only way to protect the children's interests, and the court's equitable powers permitted it to do so. The Supreme Court issued a rule to show cause and concluded that the probate court abused its discretion by issuing its order without weighing the considerations inherent in preliminarily enjoining the law firm from expending further funds in the representation of Feldman. In addition, however, because the slayer statute expressly protects third parties who receive a payment in satisfaction of a legally enforceable obligation from being forced to return that payment or from liability for the amount of the payment, the Court determined that no finding of a reasonable likelihood of success in attempting to force the return of the insurance proceeds would have been possible. Given this resolution, the Court further concluded that the disclosures ordered by the probate court would not serve their intended purpose. The Court therefore made the rule to show cause absolute.

In this original proceeding pursuant to C.A.R. 4.1 and CRS § 16-12-102(2), the Supreme Court reviewed the district court's order suppressing evidence arising out of an investigatory stop that led to drug charges being brought against defendant. The Court considered whether, under the totality of the circumstances, the police officer had reasonable suspicion to stop defendant to determine his identity. Because the officer received a report of a domestic disturbance, saw defendant walking away from the location of the reported disturbance immediately thereafter, and saw no one else in the area, the Court held that the officer had reasonable suspicion to stop defendant to determine his identity. The Court therefore reversed the district court's suppression order and remanded the case for further proceedings consistent with this opinion.

In this case, the Supreme Court considered an alleged instructional error where the jury instruction at issue tracked the language of the model jury instruction that existed at the time of trial. The Court held that simply following model jury instructions doesn't avoid plain error. However, the Court concluded that any error regarding the instruction at issue here doesn't require reversal because defendant failed to show that any error so undermined the fundamental fairness of the trial itself as to cast serious doubt on the reliability of defendant's convictions. The Court also held that the force sentence enhancer in CRS § 18-3-402(4)(a), which elevates sexual assault from a class 4 felony to a class 3 felony, doesn't require proof of a mens rea.

In this case, the Supreme Court interpreted language in the appraisal provision of an insurance policy requiring each party to "select a[n] . . . impartial appraiser." It concluded, based on the plain meaning of the word "impartial," that the policy requires the appraisers to be unbiased, disinterested, and unswayed by personal interest. The appraisers must not favor one side more than another, so they may not advocate for either party. The Court also considered whether a contingent-cap fee agreement between a party and an appraiser rendered the appraiser partial as a matter of law. The Court held that the agreement in this case did not.

The Supreme Court accepted jurisdiction over a certified question of law from the U.S. District Court for the District of Colorado to determine whether there should be an arbitration-specific exception to Colorado's traditionally defined doctrine of equitable estoppel. The Court held that Colorado's law of equitable estoppel applies in the same manner when a dispute involves an arbitration agreement as it does in other contexts. The Court recognized that under Colorado law, equitable estoppel requires proof of four elements—one of which is detrimental reliance. Thus, a nonsignatory to an arbitration agreement can only assert equitable estoppel against a signatory in an effort to compel arbitration if the nonsignatory can demonstrate each of the elements of equitable estoppel, including detrimental reliance.

Under a 1940 water use agreement, the City and County of Denver, acting by and through its Board of Water Commissioners (Denver), agreed, in lieu of making releases from certain streambed reservoirs to replace seepage and evaporation losses, not to reuse or successively use return flows from water imported from the Western Slope. Earlier litigation established that this reuse prohibition in the 1940 agreement applies only to return flows derived from decreed water rights from Colorado River sources with appropriation dates before May 1, 1940 Denver may therefore use return flows derived from sources that were appropriated or acquired after that date. The question in this appeal was whether the 1940 agreement prohibits Denver from using return flows from water imported from the Blue River system under exchange and substitution operations decreed in 1955 and administered under a 1946 priority date using water stored in the Williams Fork Reservoir under a 1935 priority as a substitute supply. Because the water imported through the Roberts Tunnel under Blue River exchange and substitution operations is a source acquired by Denver after May 1, 1940, the Supreme Court concluded that the resulting return flows are not subject to the 1940 Agreement and Denver may reuse and successively use them. Accordingly, the Court affirmed the water court's judgment and decree.

In this case, the Supreme Court concluded that a division of the Court of Appeals erred by supplementing this Court's cumulative error standard with case law from federal courts. The Court reaffirmed that the proper standard for analyzing cumulative error claims stems from Oaks v. People, 371 P.2d 443 (Colo. 1962). Applying that standard, the Court concluded that the cumulative prejudicial effect of various trial errors deprived defendant of a fair trial. Accordingly, the Court reversed the judgment of conviction and remanded for a new trial.

The Supreme Court determined how the Department of Corrections (DOC) should calculate an inmate's parole eligibility date when an inmate is released to serve mandatory parole and receives additional concurrent sentences. The Court concluded that the DOC's interpretation of the statutory scheme for inmate and parole time computations is reasonable. Accordingly, the Court held that the new parole eligibility date for an inmate who was re-incarcerated for a parole violation and is sentenced for additional offenses should be calculated using the beginning of the period of mandatory parole as the start of the inmate's one continuous sentence. The district court's judgment was reversed.

In a pretrial motion, defendant sought to suppress his statements at a police station and the handgun recovered during a search of his car. The trial court denied both requests and, following a conviction, defendant appealed the two rulings. However, on appeal, defendant raised a new argument with respect to each evidentiary item. A division of the Court of Appeals denied him relief, ruling that he had waived the right to advance the unpreserved contentions. The Supreme Court agreed with the division that the claims were not preserved. But it determined that no waiver occurred. Instead, relying on People v. Rediger, 2018 CO 32, 416 P.3d 893, it held that the claims were forfeited and are thus subject to plain error review. Upon undertaking such review, the Court concluded that the trial court did not err in admitting the police-station statements and that the record does not establish that the admission of the gun was plain error. The Court of Appeals' judgment was affirmed.

A detective coerced defendant into making a confession, and the prosecution then used that confession as evidence against defendant to convict him of multiple offenses. Before trial, defendant sought to suppress his statements but neglected to challenge their voluntariness. As a result, the trial court did not rule on that issue and a division of the Court of Appeals declined to review its merits, finding that it was waived. The Supreme Court agreed with the division that the voluntariness claim was not preserved. But it determined that no waiver occurred. Instead, relying on the companion case of Phillips v. People, 2019 CO 72, __ P.3d __, announced the same day, and on People v. Rediger, 2018 CO 32, 416 P.3d 893, it held that the voluntariness claim was forfeited, not waived, and is thus subject to plain error review. Upon conducting such review, the Court concluded that the trial court erred in admitting defendant's statements and that the error amounts to plain error and requires reversal. The Court of Appeals' judgment was reversed and the case was remanded.

In this case and two companion cases, the Supreme Court considered multiple issues that lie at the intersection of proportionality review and habitual criminal punishment. Consistent with Wells-Yates v. People, the lead case, the Court held that, in determining the gravity or seriousness of triggering and predicate offenses during an abbreviated proportionality review, the court should consider any relevant legislative amendments enacted after the dates of those offenses, even if the amendments do not apply retroactively. Although the Court of Appeals reached a similar conclusion, it erred in failing to recognize that, rather than considering relevant prospective legislative amendments enacted after the dates of the triggering and predicate offenses, the trial court actually applied those amendments retroactively. Therefore, its judgment was reversed. And, because additional factual determinations are necessary to properly address defendant's proportionality challenge, the case was remanded with instructions to return it to the trial court for a new proportionality review.