Editor’s Note: Law Week Colorado edits court opinion summaries for style and, when necessary, length.
The Colorado Supreme Court granted certiorari in this case to determine whether testimony that otherwise meets the requirements of Colorado Rule of Evidence 702 and Colorado Supreme Court case People v. Shreck is rendered inadmissible because the witness was not formally offered and accepted as an expert during their testimony, and whether it is plain error to admit expert testimony without a formal offer and acceptance when the record shows that the requirements of CRE 702 and Shreck have been met.
Martinez was charged with first-degree murder and entered a plea of not guilty by reason of insanity. Dr. Charles Harrison conducted the sanity evaluation and opined that Martinez was legally sane at the time of the alleged offense.
Before the trial, the prosecution filed a supplemental witness list that didn’t include Harrison. At the final pretrial conference, the prosecution explained that it hadn’t endorsed Harrison as a witness because it planned to call him only on rebuttal and under a specific circumstance.
After trial began, the prosecution filed a further supplemental witness list that included only Harrison and submitted Harrison’s curriculum vitae but didn’t specifically note him as an expert witness or identify his field of expertise.
When Harrison was called by the prosecution, they didn’t expressly tender him as an expert, nor did the court expressly accept him as an expert or rule that he was entitled to offer opinions under CRE 702. But the prosecution proceeded as if his qualifications had been accepted and asked for his opinion as to Martinez’s mental state at the time of the offense.
Martinez was convicted. He appealed, arguing that the trial court erred by admitting Harrison’s testimony without requiring that he be formally offered and accepted as an expert witness.
A split division of the Colorado Court of Appeals agreed and reversed.
The state’s high court concluded that CRE 702 and its case law don’t require or prohibit a formal offer and acceptance of an expert. According to the opinion, the absence of a formal tender and acceptance does not, by itself, render expert testimony inadmissible, and such testimony is admissible if it otherwise meets the requirements of CRE 702 and Shreck.
Applying those principles to this case, the court concluded that the trial court didn’t err when it admitted Harrison’s testimony.
The court reversed the judgment and remanded the case to allow the division to address the issues that Martinez raised that the appeals court didn’t reach because of its determination.
Francine Erica Segura filed a pro se Colorado Rule of Criminal Procedure 35(c) motion, raising multiple ineffective assistance of trial counsel claims and requesting the appointment of postconviction counsel.
The trial court didn’t follow either of the paths outlined in Crim. P. 35(c). Instead, according to the opinion, it took a middle-of-the-road approach: It denied all but one claim and forwarded a copy of the motion to the prosecution and the Office of the Public Defender with instructions limiting the OPD’s appointment to the single surviving claim.
Because the OPD had a conflict of interest, an attorney from the Office of Alternate Defense Counsel was appointed as postconviction counsel. The attorney filed a supplement to the pro se motion regarding the one remaining claim within the limited scope of her representation.
After an evidentiary hearing on that claim, the court denied Segura’s request for postconviction relief. A division of the Colorado Court of Appeals reversed the trial court’s order in part, and the Colorado Supreme Court granted the prosecution’s petition for writ of certiorari.
According to the opinion, the prosecution asked the state’s high court to read a hybrid path into Crim. P. 35(c), one which allows trial courts to deny some, but not all, of the claims raised in a pro se motion requesting counsel without first forwarding a copy to the prosecution and the OPD, and then appoint the OPD solely on any remaining claims.
The Colorado Supreme Court declined, ruling that the plain language of Crim. P. 35(c) does not support such an interpretation. According to the opinion, just as Cinderella’s stepsisters couldn’t wedge their feet into the glass slipper, the prosecution can’t force this fit into Crim. P. 35(c), no matter how hard it wiggles.
The high court held that when a defendant files a pro se Crim. P. 35(c) motion that contains a request for counsel, the trial court has only two choices. It may conclude, based on its review of the motion, record and file that none of the claims have arguable merit and deny the motion entirely, with written findings of fact and conclusions of law.
Alternatively, if it finds at least one claim with arguable merit, it must grant the request for postconviction counsel and forward a complete copy of the motion to the prosecution and the OPD. The OPD must then determine which claims lack arguable merit and should be abandoned, which should be supplemented and which new claims should be added.
The court affirmed and remanded with instructions to return it to the trial court for further proceedings consistent with this opinion.
This case, according to the opinion, concerns the state engineer’s authority to limit the total volume of nontributary groundwater that may be withdrawn from the Denver Basin aquifers over the life of a well permit.
Parker Water and Sanitation District applied for six permits to construct wells to withdraw nontributary groundwater from the aquifers underlying the land within Parker’s boundaries, pursuant to multiple water decrees stretching back decades.
The state engineer approved Parker’s applications and issued the permits. All six of the permits included an allowed average annual withdrawal as required by Colorado statute. But five of the six permits also included, for the first time, an explicit condition limiting the total volume of groundwater Parker could withdraw from the aquifers over the life of the permits.
Parker filed suit in Water Division One, arguing that the state engineer lacked the authority to impose a total volumetric limit on the amount of nontributary groundwater available for withdrawal under a Denver Basin well permit.
The state engineer counterclaimed, asserting that Section 37-90-137 of the Colorado Revised Statutes and the Statewide Nontributary Ground Water Rules unambiguously set a total volumetric limit on the amount of nontributary Denver Basin groundwater a permittee may withdraw.
The water court found in favor of the state engineer on all issues. Parker Water appealed.
The Colorado Supreme Court found that, under the statute and rules, any well permit for nontributary groundwater withdrawal from the Denver Basin aquifers imposes a total volumetric limit, whether explicitly stated or not, unless an underlying water court decree specifies otherwise.
Because the relevant statutory provisions and regulations unambiguously require such a limit, the water court correctly concluded that the state engineer has the authority to expressly include that limit in its well permits. It also rejected Parker’s other arguments.
The court affirmed.
Justice Brian Boatright dissented.
Boatright wrote that he was of the opinion that the plain language of the statute entitles the landowner to “that quantity of water… underlying the land owned by the applicant.” According to his dissent, the state engineer’s calculation of recoverable groundwater is only an estimate.
He opined that interpreting the statute to impose a volumetric limit other than the actual physical amount of water is contrary to its plain language, interferes with landowners’ rights and would leave valuable water unused.