Court Opinions for May 4, 2017

COLORADO COURT OF APPEALS
People v. Thompson
This appeal posed a question of first impression in Colorado: Do indigent defendants in criminal cases have a constitutional right to be represented by private counsel who are willing to represent them without cost and simultaneously a constitutional right to receive state-funded ancillary services, such as investigators and experts? Aaron Thompson asserted that the trial court denied his Sixth Amendment right to the counsel of his choice when it decided that an attorney who offered to represent him without pay would not be entitled to receive state funds to obtain ancillary services. The court, instead, appointed the public defenders. This question required plotting the intersection of cases that discuss the right to counsel of choice with cases that discuss an indigent defendant’s right to obtain state-funded ancillary services. But the question became harder, the
Court of Appeals opinion said, because the court also had to consider whether a Colorado Supreme Court case that describes what happens at that intersection is contrary to cases that the U.S. Supreme Court decided. And finding an answer became harder still, the opinion said, because it must also evaluate what effect a Chief Justice Directive had on the intersection.

The three judges who sat on this case found three different ways to answer the
question. Two answered the question differently but both believed that the answer led them to affirm the defendant’s conviction. The remaining judge provided a third answer, and she would have reversed the conviction. The Court of Appeals affirmed Thompson’s conviction.

People v. Davis
Kelly Davis appealed the judgment of conviction entered on a jury verdict finding him guilty of conspiracy to distribute a schedule II controlled substance and court verdicts fi nding him guilty on several habitual criminal charges. His primary contention on appeal was that the state was required to prove, and the jury was required to find, that he committed a particular overt act in furtherance of the alleged conspiracy.

The Court of Appeals held, however, that where the People properly charged a single conspiracy, it is required to prove only that the defendant committed an overt act in furtherance of the conspiracy; the jury must agree unanimously that the defendant committed such an overt act, but it need not agree unanimously that the defendant committed a particular overt act. It follows that the district court did not err in failing to require the prosecution to elect a particular overt act on which it was relying to prove the charge or in failing to give the jury a special unanimity instruction. Because the court also rejected the defendant’s other contentions of error, it affirmed the judgment of conviction.

People v. Higgins
Breck Higgins fi led a Crim. P. 35(c) motion and requested counsel to represent him on his motion. The district court sent a copy of Higgins’ motion to the prosecution and, after receiving the prosecution’s response, denied the motion without a hearing and without hearing from the public defender’s office. But, the court was required to allow the public defender’s offi ce to respond. Because the court departed from Crim. P. 35(c)(3)(V)’s procedure, the Court of Appeals reversed and remanded its order without considering the merits of Higgins’s post-
conviction claims.

People v. Heisler
Steven Heisler appealed the judgment of conviction entered on a jury verdict finding him guilty of one count of harassment. Heisler also appealed his sentence. The Court of Appeals affi rmed.
Cox v. Sage Hospitality Resources John Cox appealed the Denver District Court’s dismissal of his complaint on the basis of forum non conveniens. The Court of Appeals concluded that potential double recovery — where a resident plaintiff is simultaneously suing different defendants in Colorado and an-other state for the same damages — does not constitute “most unusual circumstances” under forum non conveniens as articulated in McDonnell-Douglas Corp. v. Lohn. The court reversed and remanded the case with directions.

In the Interest of M.S.
In this dependency and neglect proceeding, the father, C.S., appealed a district court order that denied his petition for judicial review of a magistrate order allocating parental responsibilities for
his child, M.S. The Court of Appeals’ review of the record, however, required it to determine whether the magistrate had subject matter jurisdiction to issue its order. The court concluded dependency and neglect proceedings are subject to the Uniform Child-custody Jurisdiction and Enforcement Act. And because the record did not demonstrate that the magistrate followed the procedures set forth in the UCCJEA to acquire jurisdiction, it vacated the judgment and remanded the case for further proceedings.

In the Interest of A.D. and Tr.D., Children, and Concerning M.D. and T.D.
This termination of parental rights case presented a novel issue — may a county department of social services rely on its Indian Child Welfare Act of 1978 inquiries in a prior case involving the same respondent parents and one of the same children to satisfy its “continuing inquiries” obligation under section 19-1-126(1)(a), C.R.S. 2016, in a new case, and may a trial court find that ICWA does not apply in that new case based solely on the department’s inquiries in the prior case?

The Court of Appeals answered both of these questions “no” and concluded that the statute requires the department to inquire about Indian heritage in each new proceeding. Therefore, it
reversed the judgment and remanded the case to the trial court for further proceedings.