2013 CO 1

Supreme Court Case No. 12SA117
Original Proceeding Pursuant to § 1–40–107(2), C.R.S. (2012)
Appeal from the Ballot Title Board

In the Matter of the Title, Ballot Title, and Submission Clause for Proposed Initiatives 2011–2012 Nos. 67, 68 and 69

* * * * *

Petitioners:
Barbara M.A. Walkerand Don Childears,
v.
Respondents:
Earl Staelin and Robert Bows,
and
Title Board:
Suzanne Staiert, Daniel Domenico, and Jason Gelander.

JUSTICE MÁRQUEZ delivered the Opinion of the Court.

PETITIONS FOR REHEARING
NONE

 PETITIONS FOR WRIT OF CERTIORARI

No. 11SC759

Court of Appeals Case No. 10CA1026

Petitioners:

Department of Revenue of the State of Colorado and M. Michael Cooke, in her official capacity as Executive Director of the Colorado Department of Revenue,

v.

Respondent:

Public Service Company of Colorado.

Petition for Writ of Certiorari GRANTED. EN BANC. JUSTICE MÁRQUEZ does not participate.

Summary of Issues:

Whether the court of appeals erred in concluding that electricity is “tangible personal property” under the machinery tax exemption, sections 39-26-709, C.R.S. (2012), and 39-30- 106, C.R.S. (2012).

Whether the court of appeals erred in concluding that the generation, transmission, and distribution of electricity constitutes “manufacturing” for purposes of the machinery tax exemption, sections 39-26-709, C.R.S. (2012), and 39-30-106, C.R.S. (2012).

DENIED AS TO ALL OTHER ISSUES.

Court of Appeals Case No. 09CA32

In re the Marriage of:

Petitioner:

Gary W. Flanders,

and

Respondent:

Evelyn Jane Flanders, n/k/a Evelyn Jane Lawrence.

Petition for Writ of Certiorari DENIED. EN BANC.

Court of Appeals Case No. 07CA882

Petitioner:

Julio Venalonzo, a/k/a Melvin Manzanares(z),

v.

Respondent:

The People of the State of Colorado.

Petition for Writ of Certiorari GRANTED. EN BANC. Summary of the Issues:

Whether the court of appeals erred when it held that the testimony of a child forensic interviewer was lay opinion testimony and therefore was not subject to the admissibility and discovery requirements for expert witnesses.

Whether the court of appeals erred and departed from the longstanding rule against testimony that a witness is telling the truth on a specific occasion by permitting testimony about the credibility of the child accusers in this case.

DENIED AS TO ALL OTHER ISSUES.

Court of Appeals Case No. 09CA2167

Petitioner:

Visith Ny,

v.

Respondent:

The People of the State of Colorado.

Petition for Writ of Certiorari GRANTED, and the judgment of the Colorado Court of Appeals is vacated. The case is remanded to the Colorado Court of Appeals for reconsideration in light of Hagos v. People, 2012 CO 63. EN BANC.

Court of Appeals Case No. 08CA2638

Petitioner:

Darryl Lee Montoya,

v.

Respondent:

The People of the State of Colorado.

Petition for Writ of Certiorari DENIED. EN BANC.

Court of Appeals Case No. 10CA1776

Petitioner:

Jesse Barajas, 

v.

Respondent:

The People of the State of Colorado.

Petition for Writ of Certiorari GRANTED, and the judgment of the Colorado Court of Appeals is vacated. The case is remanded to the Colorado Court of Appeals for reconsideration in light of Hagos v. People, 2012 CO 63. EN BANC.

No. 12SC64

Court of Appeals Case No. 09CA1957

Petitioner:

Omar Jorge Cruz-Avila,

v.

Respondent:

The People of the State of Colorado.

Petition for Writ of Certiorari DENIED. EN BANC.

Court of Appeals Case No. 08CA1827

Petitioner:

The People of the State of Colorado,

v.

Respondent:

Michael Sean Martinez.

Petition for Writ of Certiorari DENIED. EN BANC.

Court of Appeals Case No. 09CA906

Petitioner:

Agusta James Williams,

v.

Respondent:

The People of the State of Colorado.

Petition for Writ of Certiorari DENIED. EN BANC.

Court of Appeals Case No. 11CA65

Petitioner:

Christopher William Dodson,

v.

Respondent:

The People of the State of Colorado.

Petition for Writ of Certiorari DENIED. EN BANC.

No. 12SC163

Court of Appeals Case No. 11CA2351

Petitioner:

Shaw Construction, LLC,

v.

Respondents:

United Builder Services, Inc. and MB Roofing, Inc.

Petition for Writ of Certiorari DENIED. EN BANC.

Court of Appeals Case No. 09CA1504

Petitioner:

Michael Lindenthaler,

v.

Respondent:

The People of the State of Colorado.

Petition for Writ of Certiorari DENIED. EN BANC.

Court of Appeals Case No. 10CA1206

Petitioner:

Thomas Nathaniel Sexton,

v.

Respondent:

The People of the State of Colorado.

Petition for Writ of Certiorari DENIED. EN BANC.

Court of Appeals Case No. 10CA470

Petitioner:

James William Pope,

v.

Respondent:

The People of the State of Colorado.

Petition for Writ of Certiorari DENIED. EN BANC.

Court of Appeals Case No. 08CA1587

Petitioner:

Brian Straub,

v.

Respondent:

The People of the State of Colorado.

Petition for Writ of Certiorari DENIED. EN BANC.

CHIEF JUSTICE BENDER and JUSTICE MÁRQUEZ would grant as to the following issues:

Whether the trial court abused its discretion in denying the petitioner’s motion for a new trial based on newly discovered evidence supporting his alibi defense.

Whether the prosecution’s statements during closing argument discussing what the defendant has to “prove” with respect to his alibi defense, considered in light of the entire record, including the prosecution’s cross examination, constitutes impermissible burden shifting under People v. Santana,255 P.3d 1125 (Colo. 2011).

Court of Appeals Case No. 10CA2185

Petitioner:

Jeremy Rashon Estes,

v.

Respondent:

The People of the State of Colorado.

Petition for Writ of Certiorari DENIED. EN BANC.

CHIEF JUSTICE BENDER would grant as to the following issues:

Whether it is fundamentally unfair and prejudicial for the trial court judge, during voir dire, to tell the jury that the defendant “obviously did something” and that “we didn’t just walk out to the bus stop” and tell the defendant that “today is your lucky day.”

Whether the prosecution impermissibly shifts the burden of proof and undermines a defendant’s right to a fair trial by an impartial jury when it argues, in opening, that the defendant “made up” a story to arresting officers, and argues, in closing, that the burden of proof no longer applies and that no affirmative defense applies in the case even when the trial court determines that the defendant is entitled to raise the affirmative defense and the prosecution must disprove it beyond a reasonable doubt.

Whether the numerous trial errors, all of which concerned the presumption of innocence and the prosecution’s burden of proof, cumulatively deprived the petitioner of his due process right to a fair trial as Judge Rothenberg concluded in her dissenting opinion.

Court of Appeals Case No. 09CA1139

Petitioner:

Maximo Daniel Ramos,

v.

Respondent:

The People of the State of Colorado.

Petition for Writ of Certiorari DENIED. EN BANC.

Court of Appeals Case No. 11CA132

Petitioner:

Keith Frazier,

v.

Respondents:

Director, Colorado Department of Corrections; and Warden, Bent County Correctional Facility.

Petition for Writ of Certiorari DENIED. EN BANC.

Court of Appeals Case No. 11CA146

In Re 2010 Denver County Grand Jury, and Concerning the Grand Jury Report Issued December 8, 2010.

Petition for Writ of Certiorari DENIED. EN BANC. JUSTICE BOATRIGHT does not participate.

Court of Appeals Case No. 10CA1580

Petitioner:

St. Jude’s Company, a Colorado general partnership,

v.

Respondent:

Mark Alan Kittle.

Petition for Writ of Certiorari DENIED. EN BANC.

Court of Appeals Case No. 09CA1178

Petitioner:

Matthew Vincent Martinez,

v.

Respondent:

The People of the State of Colorado.

Petition for Writ of Certiorari DENIED. EN BANC.

Court of Appeals Case No. 10CA883

Petitioner:

Thomas West,

v.

Respondent:

The People of the State of Colorado.

Petition for Writ of Certiorari GRANTED. EN BANC. Summary of the Issue:

Whether a defendant who has demonstrated ineffective assistance of counsel in a Crim. P. 35(c) proceeding because of a conflict of interest must separately demonstrate an “adverse effect” arising from that conflict.

Court of Appeals Case No. 09CA1635

Petitioner:

Isaiah Anthony Vialpando,

v.

Respondent:

The People of the State of Colorado.

Petition for Writ of Certiorari DENIED. EN BANC.

Court of Appeals Case No. 10CA319

Petitioner:

Daniel Flores,

v.

Respondent:

The People of the State of Colorado.

Petition for Writ of Certiorari DENIED. EN BANC. JUSTICE MÁRQUEZ does not participate.

Court of Appeals Case No. 08CA2167

Petitioner:

Horacio Mejia,

v.

Respondent:

The People of the State of Colorado.

Petition for Writ of Certiorari DENIED. EN BANC. JUSTICE MÁRQUEZ does not participate.

Court of Appeals Case No. 10CA1286

Petitioner:

Shawn R. Adolf,

v.

Respondent:

The People of the State of Colorado.

Petition for Writ of Certiorari DENIED. EN BANC.

Court of Appeals Case No. 11CA462

Petitioners:

Radcliff Properties Limited Partnership, LLLP, a Colorado limited liability limited partnership; Radcliff Southeast Properties Limited Partnership, LLLP, a Colorado limited liability partnership; Hornet Enterprises Limited Partnership, LLLP, a Colorado limited liability limited partnership; and 2150 Radcliff Limited Partnership, LLLP, a Colorado limited liability limited partnership,

v.

Respondents:

City of Sheridan, Colorado, a Colorado home rule municipality; and the City Council of the City of Sheridan, Colorado.

Petition for Writ of Certiorari DENIED. EN BANC.

Court of Appeals Case No. 10CA1484

Petitioner:

John Joseph Martinez,

v.

Respondent:

The People of the State of Colorado.

Petition for Writ of Certiorari DENIED. EN BANC

Court of Appeals Case No. 08CA2439

Petitioner:

Jeffrey Dewayne Green,

v.

Respondent:

The People of the State of Colorado.

Petition for Writ of Certiorari DENIED. EN BANC.

Court of Appeals Case No. 10CA1378

Petitioner:

The People of the State of Colorado,

v.

Respondent:

Lorenzo Brooks.

Petition for Writ of Certiorari DENIED. EN BANC. JUSTICE EID would grant as to the following issues:

Whether the court of appeals incorrectly interpreted the sex offender registration statute, specifically section 16-22-103(1)(b), C.R.S. 2011, to require an element-by-element comparison of a defendant’s out-of-state conviction with that of an unlawful sexual offense in Colorado.

Whether, even assuming the court of appeals properly applied the elements test to the defendant’s out-of-state conviction, the district court’s decision should have been affirmed because the defendant was still required to register as a sex offender pursuant to a separate subsection of the Sex Offender Registration Act, and was therefore, still in violation of his duty to register as a sex offender.

Court of Appeals Case No. 07CA2481

Petitioner:

Jason William Bondurant,

v.

Respondent:

The People of the State of Colorado.

Petition for Writ of Certiorari DENIED. EN BANC.

Court of Appeals Case No. 11CA1045

Petitioner:

Sheila Windhorst,

v.

Respondent:

State Farm Mutual Automobile Insurance Company.

Petition for Writ of Certiorari DENIED. EN BANC.

Court of Appeals Case No. 10CA175

Petitioner:

Thomas Benham Tucker,

v.

Respondent:

The People of the State of Colorado.

Petition for Writ of Certiorari DENIED. EN BANC.

Court of Appeals Case No. 09CA2681

Petitioner:

Donald Eugene Taylor,

v.

Respondent:

The People of the State of Colorado.

Petition for Writ of Certiorari DENIED. EN BANC.

CHIEF JUSTICE BENDER and JUSTICE COATS would grant as to the following issue:

Whether the court of appeals erred in holding that a warrantless search of the defendant’s cell phone log was constitutional as a search incident to arrest after the phone was removed from his possession following arrest and then searched at the scene.

Court of Appeals Case No. 10CA829

Petitioner:

Donaciano Rayos-Rodriguez,

v.

Respondent:

The People of the State of Colorado.

Petition for Writ of Certiorari DENIED. EN BANC.

Court of Appeals Case No. 10CA1468

Petitioner:

Michael R. Lawrence,

v.

Respondent:

The People of the State of Colorado.

Petition for Writ of Certiorari DENIED. EN BANC.

Court of Appeals Case No. 10CA1982

Petitioners:

Leela European Café, LLC; Ronen Ben-Ari; Tartanula Billiard Café, Inc.; and Amnon Ben­Ari,

v.

Respondents:

M.C. Williams & Associates, Attorneys at Law, LLC; The Posner Law Firm; and Steven C. Posner.

Petition for Writ of Certiorari DENIED. EN BANC.

Court of Appeals Case No. 11CA2623

Petitioner:

The People of the State of Colorado,

v.

Respondent:

James Broderick.

Petition for Writ of Certiorari DENIED. EN BANC.

Court of Appeals Case No. 11CA508

Petitioners:

Kenneth Tyler Scott and Clifton Powell,

v.

Respondents:

Saint John’s Church in the Wilderness, a Colorado nonprofit corporation; Charles I. Thompson; and Charles W. Berberich.

Petition for Writ of Certiorari DENIED. EN BANC. JUSTICE RICE does not participate.

CHIEF JUSTICE BENDER and JUSTICE EID would grant as to the following issues:

Whether the court of appeals erred under Snyder, Brown, and Flores in creating new exceptions to the First Amendment to restrict protests at religious events — punishing non-obscene posters and unamplified voices under the law of real property nuisance and civil conspiracy, and with an injunction against trespass and loud voices — where counter-demonstrators remained on public property, did not trespass or impede access, spoke on matters of public concern and complied with city ordinances.

Whether the court of appeals erred twice under New York Times and Bose by failing to consider the First Amendment as a defense to the tort judgments and by failing to perform an independent review of the record.

No. 12SC970

No. 12SC974