Court Opinions- Dec 10, 2018

Ruibal v. People

George Ruibal petitioned for review of the Court of Appeals’ judgment affirming his conviction for second-degree murder. Over the defense’s objection and without taking evidence or making any findings as to reliability, the trial court admitted expert testimony to the effect that the victim’s injuries in this case demonstrated “overkill,” a formal term describing multiple injuries focused on one area of the victim’s body, which includes blows about the head and face that are numerous and extensive, indicating that the assailant likely had either a real or perceived emotional attachment to the victim. Relying on case law from several other jurisdictions, a treatise dealing with related kinds of injuries, and the witness’s own experience with autopsies involving similar injuries, the Court of Appeals concluded that the expert opinion was sufficiently reliable and that the trial court had implicitly found as much by granting the prosecution’s proffer. 

Because the trial court made no specific finding that the theory of “overkill” espoused by the witness was reliable, nor was the reliability of that theory either supported by evidence in the record or already accepted in this jurisdiction, its admission amounted to an abuse of discretion. 

Because there was, however, overwhelming evidence of the defendant’s guilt apart from the expert testimony, the error was necessarily harmless. The judgment of the Court of Appeals was affirmed. Justice Richard Gabriel did not participate in the decision.

In re Fox v. Alfini

In this original proceeding pursuant to C.A.R. 21, the Supreme Court reviewed the district court’s order compelling production of a recording of petitioner Kayla Fox’s initial consultation with her attorney. 

Fox, who at the time of the incident was in her early 30s, became seriously ill after receiving chiropractic treatment from Dr. William Alfini, Jr. A massage therapist in the office called Fox’s mother, reported that Fox had the flu, and told Fox’s mother to come pick up her daughter. Fox’s parents arrived shortly thereafter. Realizing that their daughter was gravely ill, they rushed her to the hospital where she received emergency care and treatment for what turned out to be a stroke. 

Fox and her parents contacted attorney James Leventhal to discuss a possible malpractice action by Fox against Dr. Alfini and the Brady Chiropractic Group. Leventhal recorded at least a portion of this consultation to make sure that he did not miss anything as he sought to learn about the case. Notably, the record reveals no effort by Leventhal to determine before conferring with Fox and her parents whether Fox’s stroke caused any cognitive deficiencies such that her parents’ presence was necessary to facilitate the consultation. 

Fox filed a lawsuit against defendants for, among other things, professional negligence. Discovery ensued, and, during a deposition of Fox’s mother, defendants learned that Leventhal had recorded his initial consultation with Fox and her parents. Defendants jointly moved to compel the production of this recording or, in the alternative, for the court’s in camera review of the recording to determine if any part of it was discoverable. In their motion, defendants argued that the presence of third parties “vitiate[d] a claim of attorney-client privilege” and the recording was discoverable. 

Fox contended that her parents’ presence was necessary to facilitate her communications with Leventhal and did not destroy the attorney-client privilege. 

The district court ultimately concluded, however, that it did “not find [Fox’s] capacity diminished such that the presence of her parents was necessary to assist in the representation.” 

Fox then moved for reconsideration. The district court ultimately denied Fox’s motion to reconsider, noting that “any arguments raised could have been raised during the pleading stage or at the hearing.” After obtaining a stay so that she could petition the state Supreme Court court for relief, Fox filed the present C.A.R. 21 petition, and the Supreme Court issued a rule to show cause. 

The court concluded that the presence of a third party during an attorney-client communication will ordinarily destroy the attorney-client privilege unless the third party’s presence was reasonably necessary to the consultation or another exception applies. Because the majority found the record supported the district court’s finding that Fox had not shown that her parents’ presence was reasonably necessary to facilitate the communication with counsel, the court perceived no abuse of discretion in the ruling that the recording was not protected by the attorney-client privilege. 

The Supreme Court further concluded that, under settled law, the district court did not abuse its discretion in refusing to consider the new arguments that Fox raised in her motion for reconsideration. The court discharged the rule to show cause.

Justices William Samour, Brian Boatright and Chief Justice Nathan Coats dissented with the majority opinion. 

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