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Colorado Court of Appeals Opinions
March 1, 2012

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.

2012 COA 32. No. 07CA0561. People v. Ray.
Record—Reconstruction—Incomplete—C.A.R. 10.

Five years ago, Robert Keith Raywas sentenced to prison for attempted murder, first-degree assault, and accessory to murder. He promptly appealed, but did not file his opening brief. He obtained eight extensions to file the record. He filed five motions to supplement or complete the record, all of which were granted, and filed a motion for limited remand to settle and supplement the record, which also was granted. The court discharged its duties: it defined the scope of the remand order, received evidence and argument about the items that Ray proposed to include in the record, and issued written findings and conclusions. Ray then filed this motion, seeking clarification and further direction in the remand proceedings in this appeal. After reviewing Ray’s motion, the People’s response, and the trial court’s findings, the Court of Appeals ordered the parties to appear for oral argument.

Ray contended that the appellate record was incomplete or inaccurate. He was entitled to supplement the partial transcript regarding events that occurred during jury selection and any comments the court made to the jurors cautioning them about communicating with court staff, because these transcripts are material to the appeal. Additionally, the parties agreed that the partial transcript does not reflect all the events that occurred on October 13. They stipulated that Ray has submitted an accurate account of the proceedings on that day. Therefore, the trial court was directed to settle and approve Ray’s statement under C.A.R. 10(c). Ray’s request to supplement the record with any reconstructed bench conferences was denied, because he failed to request a recording of those conferences. The reference to an opinion attached to one of Ray’s motions was never attached to the motion; thus, the opinion is outside the scope of appeal. Additionally, although Ray was permitted to take photographs of certain courtroom security measures and the courtroom, these photographs were never submitted to the trial court and thus are outside the scope of appeal. Ray’s request for other evidence not before the trial court also was properly denied. The limited remand was discharged and the appeal was recertified. The parties were instructed that any further stay of the briefing schedule must be requested by an appropriate motion under C.A.R. 27.

2012 COA 33. No. 07CA2099. People v. Delgadillo.
Sixth Amendment—Conflict of Interest—Attorney–Client Privilege.

Defendant appealed the judgment of conviction entered on a jury verdict finding him guilty of first-degree sexual assault and two counts of contributing to the delinquency of a minor. The judgment was reversed, the sentence was vacated, and the case was remanded for further proceedings.

Defendant took the stand at trial to testify in his own defense. Defendant testified that his counsel advised him that he would receive a sentence of twenty-five to thirty years, if found guilty. Outside the presence of the jury, defendant’s counsel testified in camera regarding his communications with defendant regarding the potential sentence, and defendant indicated that he would have taken the plea bargain instead of proceeding to trial if he had been told that the actual range was four to sixteen years if the sentences were to run concurrently. The case proceeded, and defendant was found guilty.

Defendant contended his Sixth Amendment right to conflict-free counsel was violated when the court swore in his trial counsel and permitted counsel to testify about communications he had with defendant about the ongoing representation. No one asked defendant whether he would waive the attorney–client privilege to allow his counsel to testify, or explained what the consequences might be if defense counsel testified inconsistently with defendant’s trial testimony. The record reflects defense counsel’s inherent conflict in simultaneously trying to respond to questioning from the court and the prosecutor, to justify his earlier advice to defendant, and to remain a zealous advocate on behalf of his client. In the circumstances presented here, including defense counsel’s disclosures of attorney–client privileged information, defense strategy, and the specter of an ineffective assistance claim, there was an actual conflict of interest that deprived defendant of conflict-free representation. Accordingly, the judgment was reversed, the sentence was vacated, and the case was remanded for a new trial.

2012 COA 34. No. 10CA2252. People v. Carbajal.
Possession of a Weapon by a Previous Offender—Right to Bear Arms—Jury Instruction—Threat of Imminent Harm—Affirmative Defense.

Defendant appealed the judgment of conviction entered on jury verdicts finding him guilty of two counts of possession of a weapon by a previous offender (POWPO). The judgment of conviction was reversed and the case was remanded for a new trial.

Defendant argued that the trial court committed reversible error when it rejected his tender of the stock jury instruction regarding his affirmative defense to the POWPO charges and instead used a version provided by the prosecution, which added language concerning a reasonable belief of a threat of imminent harm. In 1876, Colorado adopted a Constitution that included a provision in its Bill of Rights establishing a right to keep and bear arms in defense of one’s home, person, and property. During the 20th century, the Colorado General Assembly enacted a statute making it unlawful for a previous offender to possess weapons.

The Colorado Supreme Court held that a defendant may raise an affirmative defense to a POWPO charge under Colo. Const. art. II, § 13,by presenting competent evidence that his or her purpose in possessing weapons was defense of home, person, and property, which language was included in the stock jury instruction proposed by defendant. Because the modified jury instruction allowed the prosecution to defeat the affirmative defense by showing that defendant did not reasonably believe in a “threat of imminent harm,” the burden of proof regarding defendant’s purpose in possessing weapons was impermissibly lowered. Because the trial court erred in modifying the stock instruction to include a “threat of imminent harm” requirement, and the modified affirmative defense instruction impacted defendant’s substantial rights, the error was not harmless.

2012 COA 35. No. 11CA1347. People in the Interest of R.D., and Concerning K.L.
Dependency and Neglect—Termination of Parental Rights—Due Process—Right to Counsel—Clear and Convincing Evidence.

In this dependency and neglect case, father appealed from the judgment terminating the parent–child relationship between him and his children, R.D. and R.D. Mother also appealed from the judgment terminating the parent–child relationship between her and her children, R.D., R.D., C.L., and D.L. The judgment was vacated and the case was remanded as to father. The judgment was affirmed as to mother.

Father contended that the trial court violated his statutory and due process rights to counsel when it prohibited his attorney from participating on his behalf and entered default against him on the first day of the termination hearing and sua sponte allowed his counsel to withdraw on the second day of the hearing. In all dependency and neglect proceedings, a parent possesses the legal right to be represented by counsel at every stage of the proceedings. Here, after commencing the termination hearing, in the absence of father but with his counsel present and participating, the trial court found father in default and granted the motion to terminate his parental rights. It also indicated on the first day of the hearing that it was dismissing his counsel, over her objection. The court proceeded with day one of the termination hearing without father or his counsel present. On the second day of the hearing, the court allowed father to participate, but without the assistance of counsel. No statutory exception exists here to permit such a deprivation of this right. Accordingly, the trial court violated CRS §§ 19-3-202(1) and -602(2) when it deprived father of his right to the assistance of counsel during substantial parts of the termination hearing.This constituted reversible error per se.

Mother contended that the judgment terminating her parental rights was not supported by clear and convincing evidence. The overwhelming evidence, however, supports the trial court’s findings that mother continued to demonstrate the same behaviors identified in the treatment plan, including a “strange absence of emotional attachment.” Further, despite mother’s claims of progress, the evidence showed that her issues were chronic. Both mother’s therapist and the caseworker testified that she would not be able to safely parent within a reasonable time. Accordingly, the termination of mother’s parental rights was supported by clear and convincing evidence.

Colorado Court of Appeals Opinions