Editor’s Note: Law Week Colorado edits court opinion summaries for style and, when necessary, length.
Maria Day appealed her conviction of second-degree murder, vehicular homicide, leaving the scene of an accident and careless driving resulting in death. Day challenged the trial court’s refusal to admit evidence of her mental condition. The appeals court concluded the trial court erred in excluding some, but not all, of Day’s proffered expert testimony. The appeals court also concluded the evidentiary error wasn’t harmless beyond a reasonable doubt and reversed the decision and remanded the case for a new trial on all counts for which Day’s culpability was at issue. The court also reversed the trial court’s restitution order.
The appeal concerns an incident in which Day ran over her boyfriend J.M. with her car. J.M.’s head hit a concrete barrier during the collision. J.M. was eventually taken to the hospital, where he later died.
The prosecution charged Day with second-degree murder, vehicular homicide, and leaving the scene of an accident resulting in death. Day was tried approximately five years later. The delay was largely due to communication difficulties with the Colorado Mental Health Hospital in Pueblo and Day’s deteriorating mental condition while in custody. Day was found incompetent by a state examiner and later restored to competency.
The trial court sentenced Day to 35 years in the custody of the Department of Corrections.
On appeal, Day asserts that the trial court erred by excluding evidence of her mental condition that she claims was relevant to explain her post-incident conduct. Day also challenged the court’s authority to order restitution after the 91-day statutory deadline and she asserted that insufficient evidence supported the award.
Day asserted the trial court erroneously excluded evidence that her mental illness could have caused her to experience disorganized thoughts and problem-solving difficulties, which she offered to explain her detached demeanor and her failure to call 911 immediately after the incident.
The appeals court concluded that the trial court’s order denying Day’s proffered mental condition evidence constituted an abuse of discretion in two ways. First, the court’s written order faulted Day for failing to “cooperate” with a mental condition examination conducted while she was incompetent. The appeals court concluded that the trial court erred, as a matter of law, by premising its conclusion on what happened during the evaluation in which Day was found incompetent and exhibited symptoms of her previously diagnosed mental illness.
Second, the appeals court determined that the trial court abused its discretion by failing to parse the proffered evidence to “distinguish what is probative of insanity under this exacting definition from what is not,” as required according to the appeals court’s 2021 decision in People v. Moore.
Under Moore’s framework, the appeals court concluded the only piece of testimony that was probative of insanity and inadmissible was the testimony regarding Day’s ability to perceive the reality or the severity of the situation. Everything else fell short of being probative of insanity and was admissible, according to the opinion.
The appeals court reversed Day’s conviction as to each count for which her culpable mental state was at issue and remanded for a new trial. The appeals court also ruled, as it was unable to determine from the appellate briefs the parties’ respective positions on whether the evidence relates to some or all of Day’s convictions, the trial court may on remand solicit briefing from the parties and determine which charges are subject to retrial.
The appeals court also reversed the court’s restitution order.
The appeals court was asked to decide whether the district court made findings sufficient to support its denial of Kyle Zoller’s motion to modify a no-contact provision issued as part of a mandatory protection order. The MPO prevents Zoller from “contacting or directly or indirectly communicating with” his minor daughter, a victim and witness of his domestic crimes, until he has completed his prison and parole sentences.
The appeals court concluded that to maintain the challenged no-contact provision of Zoller’s MPO, additional findings are required. Because the district court did not specifically find that the purpose of this infringement on Zoller’s fundamental constitutional right to parental association could not be accomplished by less restrictive means, the appeals court reversed the court’s order and remanded the case for additional proceedings.
The appeals court found, viewing the long-standing recognition by the U.S. and Colorado Supreme Courts of a parent’s interest in the companionship, care, custody and control of their children as a fundamental substantive due process right, that government infringement of the fundamental right parents possess to maintain family relationships free from governmental interference must meet certain due process standards.
For the MPO provision to survive a constitutional challenge, the appeals court concluded the district court must find that it is justified by compelling circumstances and the purpose of the order cannot be accomplished by less restrictive means.
The district court’s findings outline compelling circumstances to justify infringing Zoller’s right to parental association. The appeals court agreed with the district court’s findings on compelling circumstances.
On the subject of less restrictive means, Zoller suggested that the court could order videochat-only contact or supervised visits. The prosecution argued that under the circumstances of this case, a less restrictive order wouldn’t provide for the child’s safety. However, they do not articulate how the child’s safety would be threatened by allowing some contact, like remote communication.
The appeals court recognized that the district court was not directly asked to make a finding on less restrictive means, a finding not required by existing case law. The appeals court wrote that it could conceive of findings that would or would not support a determination that Zoller’s no-contact order amounts to no greater deprivation than is reasonably necessary — in other words, a determination that no less restrictive order would suffice. But in this case, the district court did not make these constitutionally required findings.
The appeals court reversed the order and remanded the case.
The Sentinel Colorado v. Rodriguez
The Sentinel Colorado appealed the decision by the district court that ordered Kadee Rodriguez, the city clerk and records custodian for the City of Aurora, to not release the recording of a March 14, 2022 Aurora City Council executive session. The appeals court agreed with The Sentinel in all respects except its request for attorney fees, and ordered the records custodian to release the recording to The Sentinel.
On March 14, 2022, the City Council held an executive session, which was recorded. The executive session was called by City Council Member Juan Marcano to initiate censure proceedings against City Council Member Danielle Jurinsky.
On March 18, 2022, a reporter for The Sentinel filed a request through the City’s website seeking access to the March 14, 2022 executive session about the censure of Jurinsky. Rodriguez denied this request because she claimed that “[t]he record being sought is privileged attorney/client communication and is exempt from disclosure, pursuant to C.R.S. 24-6-402[(2)](d.5)(II)” of the Open Meetings Law.
The City Council then held a regular meeting on March 28, 2022. This meeting included an agenda item stating special counsel “representing the City [Council] have reached an agreement for a stipulation to resolve the [censure] issue. That stipulation is included in the backup for this item.” The agenda also included a letter from the City Council’s special counsel addressed to the Council members describing the events of the March 14, 2022 executive session.
The Sentinel filed an application in the district court for an order granting access to the recording of the March 14, 2022 executive session, asking the court to order the release of the recording or to review the recording to determine if any redactions were necessary before releasing the recording.
In the application, The Sentinel asserted that the City Council violated the OML by failing to describe the particular subject of the “legal advice” and engaging in “formal action” when the City Council later took a “roll call” vote to end the censure proceedings against Jurinsky.
The district court issued an order granting in camera review.
Following the review, the district court determined that the City Council had violated the OML, and it ordered that the recording of the March 14, 2022 executive session should be released to The Sentinel.
However, the district court stayed the ruling and granted Rodriguez an opportunity to argue that the release would violate attorney-client privilege.
Rodriguez moved for reconsideration, asserting that the March 14 2022 executive session was protected by the attorney-client privilege and the City Council cured the OML violations by informing the public of the March 14, 2022 executive session “in the agenda and agenda packet” for the City Council’s March 28, 2022 regular meeting. The Sentinel opposed the motion.
The district court granted the Rodriguez’s motion for reconsideration. The district court ordered that the recording not be released, as it was ”satisfied that the [March 28 open] meeting cured any OML defect in the intended executive session.” The district court made no findings on whether the March 14, 2022 executive session was protected by the attorney-client privilege.
The Sentinel contended that the City Council committed two OML violations at the March 14, 2022 executive session: giving an insufficient announcement about the executive session and taking a “roll call” vote to end pending censure proceedings, which constituted a “formal action.”
Both parties agree that the district court correctly found that the executive session announcement did not appear to comply with OML requirements. The appeals court agreed with this finding, and concluded the announcement for the March 14, 2022 executive session violated the OML public notice requirement.
The district court characterized the City Council’s action at the March 14, 2022 executive session as “a roll call” taken “as to the direction to be given to legal counsel, concerning the investigation” and found that such action was not a formal action violating the OML. The appeals court concluded that the district court committed clear error in making this finding.
On the subject of attorney-client privilege, The Sentinel claimed that the City Council waived any attorney-client privilege that existed in the March 14, 2022 executive session recording.
Rodriguez contended that the City Council did not waive its privilege because, at the March 28, 2022 public meeting, “[t]here was not discussion about the direction previously given to the City’s legal counsel” in the March 14, 2022 executive session. However, the appeals court noted the letter in the March 28, 2022 public meeting agenda packet directly refutes this contention.
The appeals court concluded that the City Council waived any attorney-client privilege from the March 14, 2022 executive session by describing everything that occurred during this meeting in the March 28, 2022 public meeting agenda packet.
The Sentinel further contended that the district court erred by finding that the City Council cured its OML violations when it held a regular public meeting on March 28, 2022. The appeals court reviewed the case law on curing OML violations and found it only applies where a party seeks to invalidate an action taken in an improperly convened executive session. As a result, the appeals court concluded that the curing cases do not apply to this case.
Lastly, the Sentinel argued that it should be awarded its attorney fees. The appeals court disagreed because The Sentinel is not a “citizen” under state law.
The district court’s order preventing the release of the March 14, 2022 executive session recording was reversed by the appeals court, and Rodriguez must release to The Sentinel the March 14, 2022 executive session recording pertaining to Jurinsky’s censure.
The Colorado Court of Appeals also released an opinion for In re Marriage of Goldstone.