Editor’s Note: Law Week Colorado edits court opinion summaries for style and, when necessary, length.
In this appeal, a division of the Colorado Court of Appeals reversed Erik Newton’s first-degree murder and evidence tampering convictions.
Newton became friends with Onyx Lebron in 2009 and got to know Lebron’s mother and her boyfriend, Zachary Greenstreet. However, Newton and Lebron later had a falling out and were no longer in contact by 2015. Around that time, Newton started hearing voices. Newton’s auditory hallucinations featured the voices of Greenstreet, Lebron and other members of his former friend’s family. Newton was put on antipsychotic medication but he stopped taking it due to side effects.
In June 2016, Newton went to the Lebron home and fatally shot Greenstreet, who was in the driveway. He fled the scene and buried the gun in a nearby cemetery. Later that night, Newton was arrested for trespassing but denied knowing about Greenstreet’s death and was released. Newton returned to the cemetery to dig up the gun and was arrested soon after with the gun in his pocket.
Newton was brought to a police station, where officers gave him his Miranda rights in writing and read them aloud. Before signing the Miranda rights waiver, Newton stated that he wished to talk to the officers but said he couldn’t afford an attorney and seemed confused about how or when a lawyer would be appointed, according to transcripts of his interrogation. Officer Vernon Woodin told Newton that the only way he could have an attorney at that moment was if he could afford to pay for one. Newton signed the waiver.
Another officer, Elias Alberti, then tried to clarify that while Newton had a right to representation during the interrogation, he could proceed without an attorney present. Newton asked whether he would have to pay for an attorney during the interview, and Alberti repeated that Newton had the right to an attorney but may proceed without one and acknowledged Newton’s confusion. Newton proceeded with the interrogation and, over several hours of questioning, admitted to killing Greenstreet and burying the gun at the cemetery.
At trial, Newton moved to suppress his statements to police, arguing he didn’t knowingly and voluntarily waive his Miranda rights because he was misled about his right to counsel. In a matter of first impression, a division of the Colorado Court of Appeals agreed, finding that Woodin misinformed Newton and contradicted the rights he had just read to him. According to the division’s opinion, “it was obvious that Newton remained unsure of his rights” after signing the waiver and, despite Newton’s confusion, the officers failed to clearly address his questions.
Newton also argued the prosecution presented insufficient evidence to support his evidence tampering conviction. A person commits tampering with physical evidence if they believe an official proceeding is pending or imminent and conceal the evidence to prevent it from being available for the proceeding. Newton contended the prosecution failed to show he knew an official proceeding was about to be instituted, but the division disagreed, finding that Newton’s confession established that he knew Greenstreet’s death could trigger an official proceeding. The division also found the evidence was sufficient for a jury to conclude that Newton hid the gun with the intent to impair its availability for an official proceeding. “Therefore, we conclude that the evidence was sufficient for a jury to conclude that Newton was guilty of the tampering charge,” the division wrote.
The division reversed Newton’s convictions and remanded the case for a new trial on the murder and tampering charges with directions to exclude evidence of Newton’s confession to the police.
People in the Interest of K.P., L.P., and M.P. and Concerning K.A.
In this matter stemming from a dependency and neglect case, a division of the Court of Appeals concluded a parent who was held in contempt for violating permanent protection orders may not challenge those orders as unconstitutional prior restraints on her freedom of speech.
K.A. was found in contempt for violating permanent civil protection orders prohibiting her from discussing her children’s dependency and neglect case with third parties. She appealed the contempt judgment, for which she was sentenced to six months in jail, arguing the protection orders violated her constitutional right to free speech. She also argued there was insufficient evidence for the court’s judgment of contempt.
On appeal, the Court of Appeals considered whether, in appealing the contempt judgment, K.A. may collaterally attack the lawfulness of the protection orders. A division of the Court of Appeals determined she could not because the collateral bar rule requires a party to obey a court order — even if unconstitutional — unless or until the order is stayed, reversed or set aside. K.A. didn’t timely appeal the protection orders, so she may not collaterally challenge their lawfulness or constitutionality when appealing the contempt judgment, the court ruled.
The division also rejected K.A.’s argument that there was insufficient evidence for the contempt judgment. The division affirmed the juvenile court’s judgment.
People in the Interest of M.M. and E.M. and Concerning M.M. and T.M.
In this dependency and neglect proceeding, a division of the Court of Appeals concluded that a parent’s assertion of a lineal tribal affiliation is sufficient to trigger the notice requirements of the Indian Child Welfare Act of 1978, which requires tribes to be notified when there is reason to believe an American Indian child is involved in a termination proceeding. In doing so, the division rejected the reasoning of other divisions in two recent cases: People in Interest of Jay.J.L. and People in the Interest of A-J.A.B.
A mother, M.M., and a father, T.M., appealed a juvenile court’s termination of their parental relationship with their two children. During an initial temporary custody hearing, the children’s father asserted his grandmother was a registered tribal member in Delaware, but he wasn’t sure which tribe. The juvenile court directed him to fill out an ICWA assessment form — an instruction it repeated at the next hearing — but did not otherwise follow up on whether the ICWA applied. The father didn’t complete the form.
The county human services department moved to terminate the legal relationships between the parents and their two children. At the termination hearing, the juvenile court found the ICWA was inapplicable because inquiries by the court and department showed there was “no potential Native American heritage on either parent’s side.”
On appeal, the mother argued the court didn’t comply with the ICWA. The department and the children’s guardian ad litem countered that the ICWA doesn’t apply because while the appeal was pending, they notified the Bureau of Indian Affairs, which responded that no further action would be taken because the children’s tribal affiliation was unknown.
A division of the Court of Appeals concluded that the father’s report of tribal lineage was enough to give the court reason to know the children are Indian children and the department’s notice to the BIA was inadequate. While it’s unclear whether the father meant his grandmother was a member of a Delaware tribe or a tribe in the state of Delaware, there was no notice given to the Delaware Tribe of Indians or the Delaware Nation, according to the division’s opinion. Nor was the BIA notified that the father reported a tribal connection to the state of Delaware.
The division remanded the case to the juvenile court for investigation into the father’s tribal connection and to determine whether the children are Indian children.