Editor’s Note: Law Week Colorado edits court opinion summaries for style and, when necessary, length.
Glen Montoya was convicted of a felony DUI as a fourth or subsequent offense.
Montoya was arrested at the scene of an accident for suspected DUI and refused to do a roadside maneuver test but agreed to a blood test twice. When a nurse arrived to take the test, Montoya refused but consented shortly thereafter. Still, his blood wasn’t drawn within two hours from when he stopped driving, the cutoff for blood draw requirements. The district court ruled in a pretrial hearing that Montoya’s later statement that he was willing to take the blood test was self-serving because once he refused the test, he wasn’t entitled to change his mind. Over objections from Montoya’s counsel for evidence rules of completeness, the court allowed the jury to see body camera footage edited to exclude Montoya’s later agreement to the blood draw and the court instructed the jury that Montoya refused a chemical test.
On appeal, Montoya argued that the district court erred by excluding his later exculpatory statement that he was willing to take a blood test. The Colorado Court of Appeals was asked to consider what constitutes a refusal to a blood test when a district court is asked to make a pretrial evidence ruling and what evidence of refusal should be shown to a jury when a prosecution looks to use a statement but the defendant disputes refusal.
The Colorado Court of Appeals reviewed the evidentiary ruling for abuse of discretion. It also reviewed the jury instruction for an abuse of discretion to ensure a jury was appropriately instructed on the law.
The district court misapplied the law by allowing evidence of Montoya’s refusal while excluding his later consent, the Court of Appeals found. By redacting portions of the video showing the later consent and circumstances around the refusal, the district court broke evidentiary rules of completeness. Further, the court abused its discretion by limiting evidence presented on the matter of refusal. The error wasn’t harmless, the Court of Appeals added.
Since the error warranted reversal, the court didn’t address Montoya’s other appeals.
The Colorado Court of Appeals reversed Montoya’s conviction and remanded the case for a new trial.
In a special concurrence, Judge Craig Welling wrote to address a jury instruction matter that he expects will come up on remand. If the new trial court finds Montoya refused the chemical test, two new matters will come up, Welling wrote. The court would need to decide then what evidence of refusal will be admitted and what, if any, instruction will be given to the jury around the evidence of refusal.
Focusing on the second matter, Welling explained that “[c]rafting this instruction under these circumstances — namely, where the fact of refusal is disputed — is perilous.” Welling wrote that the instructions given to the jury in the first trial were “problematic” in his view for several reasons. Remedying the issues identified, Welling wrote, isn’t straightforward and he didn’t have an immediate answer. His best suggestion was “an oft overlooked option for consideration on remand,” Welling explained, “don’t give a refusal instruction at all.” The expressed consent statute doesn’t require a refusal instruction, Welling reasoned. Further, there isn’t a procedural history that instruction is necessary. Third, Welling added, courts generally don’t ask juries to make decisions before seeing evidence as the earlier court had. And finally, courts generally don’t tell juries they can consider evidence for a particular purpose and when that does happen, the consideration is limited to the particular purpose.
“Simply put, a special instruction isn’t required for the jury to draw — or for the prosecutor to highlight — reasonable inferences about a defendant’s guilt or innocence of driving under the influence from evidence of the defendant’s refusal,” Welling wrote.
A jury convicted Anthony Smith of one count of sexual assault on a child (position of trust, pattern of sexual abuse), three counts of sexual assault on a child (position of trust) and four counts of promotion of obscenity to a minor. The Colorado Court of Appeals affirmed the conviction in 2015.
Representing himself, Smith filed a postconviction motion in 2018 claiming ineffective counsel, discovery of new evidence and prosecutorial misconduct. He requested, and was granted, post-conviction counsel who filed an expanded motion that clarified and detailed his arguments. Prosecutors filed a response and the court addressed and denied the claims from Smith’s supplemental counsel without a hearing. In a footnote, the court noted that the issues raised in Smith’s pro se petition were waived since his post-conviction counsel didn’t reassert them and the prosecution hadn’t responded to them.
On appeal, Smith asked the Colorado Court of Appeals to rule that the lower court erred in finding he waived his pro se claims by not reasserting them in the counsel’s expanded motion. The Colorado Court of Appeals agreed.
Smith didn’t waive his pro se claims for two reasons, the court held. First, Smith’s counsel titled her motion as a “Supplemental Motion For Post-Conviction Relief.” The plain language reading of supplemental, the Court of Appeals held, is to add to or supplement, so in filing the motion, Smith’s counsel didn’t forfeit his previous arguments.
The Colorado Court of Appeals added that prosecutors didn’t find any language in the supplemental motion that would’ve waived Smith’s initial arguments.
Post-conviction counsel doesn’t have to reassert claims brought initially by self represented parties, the Colorado Court of Appeals held, and reversed and remanded the lower court’s order on Smith’s initial claims. The Court of Appeals rejected some of Smith’s other arguments and affirmed those parts of the order.
John Doe v. University of Denver
The University of Denver initiated an investigation in 2016 into a first year student, named in court documents as John Doe, after another student, named in documents as Jane Roe, made a complaint to the school’s Office of Equal Opportunity alleging Doe had sex with her without her consent.
The Office of Equal Opportunity gave Doe a copy of its procedures, a standard practice, that explained the process after a complaint is made. DU’s procedures require an impartial investigator be assigned to the complaint who writes a report at the end of the investigation summarizing the information gathered, where witnesses agree and where they don’t. Both parties are given the opportunity to review the report to offer any additional comments or information. After that step, the investigator decides if there’s a preponderance of evidence to decide if a violation happened, including a determination of responsibility. A violation with a determination of responsibility is then handed off to DU’s Outcome Council which decides, based on an impartial review of the report, if any sanctions need to be taken.
The investigator assigned to Doe and Roe’s case interviewed 11 witnesses and incorporated some portions of Roe’s sexual assault nurse evaluation. No witnesses named by Doe, including some of those present leading up to the incident, were initially interviewed. The OEO interviewed Doe’s therapist at his request after Doe received the initial findings. The final report concluded, “it is more likely than not that [Doe] engaged in non-consensual sexual contact with [Roe] on the morning in question.” DU’s Outcome Council decided dismissal from the school was appropriate and Doe was immediately expelled.
Doe unsuccessfully appealed the decision to DU and then filed a lawsuit in federal court claiming the investigation and ruling violated his Title IX rights and broke state laws for breach of contract, breach of good faith and fair dealing, promissory estoppel and negligence.
A federal court granted summary judgment in favor of DU on the federal issues and dismissed the other claims which Doe brought in state court. The 10th Circuit later reversed and remanded the decision, finding that the facts of the case were too disputed to grant summary judgment and there were inconsistencies and deficiencies in DU’s investigation.
Doe raised the state claims in Denver District Court. The court granted summary judgment in favor of DU and held that DU’s promise of a “thorough, impartial and fair” investigation was too vague to be enforced for his contract claims. It added that DU didn’t have an extra-contractual duty to “non-negligently investigate claims os sexual assault by one student against another.”
On appeal, Doe reraised his state claims, except the promissory estoppel, and asked the Colorado Court of Appeals to decide if the OEO procedures are definite enough to be enforceable and if a private educational institute has any tort duties to its students to investigate and punish claims of sexual misconduct by students.
Colorado’s appellate courts haven’t addressed whether contract terms like the OEO’s are concrete enough to be enforced under contract law. Other state courts have been split on the issue, with some courts holding phrases like “fundamental fairness” and “basic fairness” are enforceable while other courts have held phrases like “safe and healthy workplace” and “very active manner” aren’t enforceable. The Colorado Court of Appeals found that while the OEO procedural documents didn’t define the words “thorough,” “impartial” or “fair,” its investigation requirements allow an understanding of the contract’s intent and terms. Together, the court ruled, “the contractual term providing for a ‘thorough, impartial and fair’ investigation, coupled with the prescribed investigation requirements, is sufficiently definite and certain to be enforced under Colorado contract law.”
The Court of Appeals further ruled that the material facts of the case weren’t sufficient enough for the lower court to grant summary judgment. Like the 10th Circuit Court of Appeals’ holding, the Colorado Court of Appeals found inconsistencies and gaps in DU’s investigation that could affect all of Doe’s state law claims.
The court also rejected the holding that DU didn’t owe Doe a duty of care to investigate the claims of sexual assault. Relying on precedent, the Court of Appeals analyzed four questions to understand if DU had a duty of care. First, what was the risk in the defendant’s conduct? Second, what’s the likelihood of injury weighed against the conduct? Third, what’s the burden of protection from injury? And finally, what are the consequences of placing the burden on the defendant?
The Court of Appeals looked at each factor and found that the risk in investigating sexual misconduct claims are significant. “A mere allegation of sexual misconduct can be devastating to the accused,” the opinion explained. “A determination that a person engaged in non-consensual sexual contact can potentially destroy the accused’s educational, employment and other future prospects.” It also found that a faulty investigation would likely cause harm to students investigated. While DU would incur significant burden to ensure its investigations are fair and properly conducted, the harm that could be suffered by students outweighed the burden, the court held. DU has a duty of care of investigating claims of sexual assault fairly and properly, the Court of Appeals held.
While DU owed Doe a duty of care, the court found that the burden would be too high for individual defendants named in the lawsuit and they didn’t have a duty of care personally.
The Colorado Court of Appeals reversed most of the findings of the lower court, only affirming summary judgment to the individual defendants that didn’t have a duty of care. The case was remanded for further proceedings.
Julius Garcia v. Krysta Bialozor
Julius Garcia found his wife Deborah Garcia face down in bed, unresponsive several hours after they had “kinky” sex. Deborah Garcia was 34 years old when she died and didn’t leave a will. She was survived by Julius Garcia, her only heir, and their two children, Krysta Bialozor and a child named in court records as “A.G.”
An autopsy at the time found Deborah Garcia died from cardiac arrhythmia from a preexisting condition. Deborah Garcia’s sister, Diana Strong, got a second opinion on her cause of death 12 years later. The pathologist found Deborah Garcia’s cause of death was pulmonary edema, a condition that can be caused by intoxication, choking and smothering.
Based on the report, Deborah Garcia’s father Pete DeHerrera sued Julius Garcia under Colorado’s slayer statute, a law that prevents felonious killers from profiting off of a victim’s death. DeHerrera asked a court to find that Julius Garcia feloniously caused his daughter’s death, find that Deborah Garcia’s children were the only heirs to her estate and order Julius Garcia to forfeit assets that Deborah Garcia owned or had an interest in. Strong later joined the lawsuit as co-petitioner; DeHerrera was later dismissed from the case and Strong took over as the only petitioner.
Several weeks after the petition, Bialozor filed an objection, saying her grandfather filed the case on her behalf. A court appointed guardian ad litem for A.G. asked the court to dismiss the case in A.G.’s best interest. A court denied multiple motions from Julius Garcia to dismiss the case based on a lack of standing and the statute of limitations.
After four years of litigation, Julius Garcia offered to settle for $500,000. His children accepted the offer. Strong offered to accept it to satisfy her monetary claim on behalf of the children, but she said that the offer didn’t address the non-monetary claim on her own behalf, a determination that Julius Garcia feloniously killed her sister.
Julius Garcia filed a motion to enter final judgment in the case that was denied. The court explained that the children weren’t the only parties that needed to agree to the settlement since the slayer statute allows non-heirs to bring claims. A final judgment couldn’t be entered unless Strong agreed to the offer, the court ruled.
Before the case went to trial, Julius Garcia filed a Contingent Admission of Liability and Motion in Limine, saying his resources were exhausted and to preserve limited resources, he would only pursue his argument that the lawsuit was barred by the statute of limitations at trial.
The court accepted the admission and entered a final judgment that ruled in favor of Strong’s felonious killing claim reflected by the admission liability and a judgment of $500,000 to be paid by Julius Garcia to his children. It also awarded Strong costs.
On Appeal, Julius Garcia argued the lower court erred in finding Strong had standing to bring her claims, finding the statute of limitations didn’t bar the claims and awarding Strong costs as the prevailing party.
The Colorado Court of Appeals agreed. It ruled that neither Strong nor DeHerrera had standing to bring the case. Since neither family member had a legal relationship to Deborah Garcia’s children and since they couldn’t be financially impacted by the decision, the Colorado Court of Appeals held they can’t bring a claim under the slayer statute solely to get a judicial declaration of felonious murder. Since Strong lacked standing, she couldn’t be the prevailing party, the Colorado Court of Appeals held.
The court reversed the part of the judgment declaring Julius Garcia feloniously killed Deborah Garcia and reversed the award of costs to Strong.