Editor’s Note: Law Week Colorado edits court opinion summaries for style and, when necessary, length.
Threatening statements made by Adrian Brown to a district court judge overseeing a dependency and neglect case were not protected by the First Amendment, a majority of the Colorado Court of Appeals ruled.
Adrian Brown was the respondent in dependency and neglect proceedings initiated by the Adams County Department of Social Services. At a third hearing in the case to establish a treatment, Brown angrily approached the bench of the presiding judge and told her he would not comply with the proposed conditions.
At her bench, Brown told the judge, “Let me kidnap your daughter and see if you don’t get angry. As a matter of fact, where do you live, your honor? Let’s see if we can get this all resolved. See if you would be angry.” The presiding judge did not react to this comment but told Brown that she didn’t want anyone to approach her bench and wouldn’t allow him to continue to use her courtroom for supervised visits with his daughter if he walked up to the bench again. Brown responded that he thought it was appropriate to change his daughter’s diaper on the bench because there was “enough s*** up there,” a reiteration of an earlier comment he made. After that, Brown was held in direct contempt and removed from the court. The presiding judge recused herself from the case the next day.
For the kidnapping comment, Brown was found guilty by a jury for retaliation against a judge and sentenced to five years in prison. On appeal, Brown argued that his comment did not rise to the level of a true threat.
The Colorado Court of Appeals applied the state’s Supreme Court test in People in Interest of R.D. to determine if Brown’s comments constituted a true threat.
Looking at the words themselves (“me,” “your,” “kidnap,” “let”), the court found that the statement was not hypothetical or broad. While Brown did not know the judge’s home address or specific information about her children, “his question shows that he had sufficient chutzpah to demand information from the judge about her personal address, and his going to the judge’s bench and poking around it shows a failure to respect boundaries,” wrote sitting Judge James Casebolt, who was joined by Judge David Furman.
The context leading up to the statements supported the credible threat, the majority found. Brown had escalated anger and frustration over the D&N proceedings. He confronted hospital staff and threatened to bring a gun to the hospital, he used profanity in the courtroom, referred to the Adams County Department of Social Services as “terrorists” and “kidnappers” and shouted at presiding judges, among other things. The judge testified she was nervous for the welfare of her children after the comment, installing additional security measures at home and avoiding bringing them in public. A few weeks after the exchange, Brown mailed the judge documents claiming to be a “criminal presentment” by the “De Jure people’s grand jury in Colorado.” The documents demanded she vacate her bench and pay over $14 billion in fines, otherwise, a lien would be placed on her home.
The majority acknowledged that some of the circumstances did not support a credible threat. The statement was part of an ongoing and contentious case, Brown didn’t violate a protection order for the criminal case, the judge did not hold him in contempt until the diaper comment and the judge did not cancel supervised visits using her courtroom.
But, after considering all R.D. factors, the court held that “the kidnapping statement could reasonably have been perceived as a serious expression of intent to commit an act of unlawful violence, and, therefore, constituted a true threat.”
Judge Lino Lipinsky dissented from the majority.
“I agree with the majority that courts must exercise caution when distinguishing between a frustrated litigant’s emotional outburst and a ‘true threat’ directed against a judicial officer,” wrote Lipinsky. But, while Brown’s remarks were “disrespectful and profane,” Lipinsky believed they did not rise to a true threat.
Several facets of the R.D. test did not support that the statements were a true threat, Lipinsky explained.
Looking at Brown’s words, which did not contain details about the judge or her children, Lipinsky held the statement was an attempt “to justify his anger about losing custody of his own daughter,” rather than make an actual threat. Lipinsky also found that the context around the statement, the judge discussing anger management or domestic violence assessments, played a part in fueling Brown’s outburst. He interpreted the statement as a hypothetical meant to place the judge in Brown’s shoes over having his daughter removed from his custody, in Brown’s view, a form of kidnapping. Lipinsky added that Brown made multiple comments that he believed himself the victim of a system that took his daughter away because he was an “activist” who spoke out against judges and “terrorists with badges.” The judge’s reaction also did not support the credible threat, Lipinsky held, since she did not remove Brown following the statement and allowed him to continue to use her courtroom for supervised visits.
Taken together, Lipinsky found that the R.D. factors showed the statement was not a true threat to kidnap the judge’s child, but a “rhetorical utterance that the judge, too, would become angered if someone wrongfully took her daughter, just as Brown felt angry that his daughter had been taken from him.”
Lipinsky wrote that he would have overturned Brown’s conviction, but noted that his dissent did not condone Brown’s behavior. The judge rightly held Brown in contempt over his statements, but Lipinsky found, “the law recognizes a material distinction between disrespectful words and a criminal prosecution for retaliation against a judge.”
Hector Castillo was convicted of first-degree extreme indifference murder and was statutorily sentenced to life without the possibility of parole for his part in a drive-by shooting. At the time of the shooting, in 2005, Castillo was 18 and a half years old. Castillo was the driver, and the shooter, Alberto Valles, who was two days shy of his 18th birthday was found guilty of the same charge, but sentenced to life with the possibility of parole in 40 years since he was under 18.
In a denied post-conviction motion, Castillo argued that his sentence violates his right to equal protection since he and Valles were similarly situated, but his sentence was harsher for the same conduct. On appeal, Castillo raised the same argument.
Castillo’s right to equal protection was not violated, the Colorado Court of Appeals found.
The court disagreed with a lower court’s ruling that Castillo failed to show he was similarly situated with Valles simply based on their ages. Looking at factors set forth in the U.S. Supreme Court case Miller v. Alabama, the Court of Appeals agreed that Castillo was similarly suited to Valles in terms of his developmental maturity, vulnerability to negative influences and less concrete character.
While he was similarly situated to the younger Valles, that didn’t shield Castillo from state sentencing statutes, the Court of Appeals found. “Although we recognize that there may be little cognitive difference between a 17-year-old juvenile and an 18-year-old adult, upon turning 18, ‘individuals receive all of these rights of adulthood, regardless of whether their brains are fully developed,’” wrote Judge Jaclyn Brown in the opinion.
Rejecting Castillo’s other arguments, the division of the Court of Appeals, which also included Judges Gilbert Román and Craig Welling, affirmed the lower court’s denial of the postconviction motion.
Two security officers at a Safeway in Greeley suspected that Jason Liebler was going to shoplift items after he filled a cart with toys and desserts that totaled around $300. Liebler went to leave the grocery store with the items, but ran into one of the officers, retreated with the cart and tried to run away. The two security officers, named R.A. and M.H. in court documents, tackled Liebler. Police officers found methamphetamine on Liebler when they arrived at the scene.
Liebler was charged with aggravated robbery, possession of a controlled substance, two counts of third-degree assault and two counts of felony menacing. He was convicted after a three-day jury trial and sentenced to 10 years in the Department of Corrections.
On appeal, Liebler argues that the prosecution did not sufficiently prove he attempted to take the items by “use of force,” an element for attempted aggravated robbery. Based on the evidence presented, the Colorado Court of Appeals agreed.
At trial, the security officers testified that when confronted, Liebler tried to ram one of them with the cart. They also testified that he tried to headbutt one of them while running away and that he had a pocket knife on him that was “slapped out of his hand” by a security officer.
Security footage from Safeway directly and “indisputably” contradicted this testimony. In the footage, Liebler tries to retreat with the cart when confronted, makes no attempt to use it as a weapon against the officers and runs. No footage exists of him headbutting the security officers and while the police officers who arrived on the scene did recover a knife, they did not testify to finding it or document where it was found.
The Colorado Court of Appeals ruled on the sufficiency of testimony contradicted by surveillance camera footage de novo.
The court noted that generally, it does not re-weigh evidence presented at trial, including “the credibility of witnesses or resolve inconsistencies or contradictions in testimony.” But, in a case with footage that “does not depend on an evaluation of credibility or a weighing of disputed facts,” the court wrote, it found itself “in the same position as the jury to determine whether the video supports or contradicts a witness’ testimony.”
Based on factors for video evidence laid out in Love v. State, the Court of Appeals found that no reasonable person could find that the surveillance video supported the security officer’s testimony.
“M.H.’s testimony was the only evidence that Liebler used force in his attempt to take the items from the store,” the court found.
The prosecution argued that since Liebler attempted to headbutt the security officers, the element of use of force was satisfied. The Colorado Court of Appeals disagreed, and held that since the officers testified that the headbutt occurred while trying to escape, it was not part of the robbery.
In total, “the evidence presented to the jury was insufficient to sustain Liebler’s conviction for attempted aggravated robbery,” the court found and vacated Liebler’s conviction and remanded for resentencing.
The court was not convinced by Liebler’s other appeals and affirmed his other convictions.
Catherine Pisano v. Leann Manning
Catherine Pisano was awarded $1,548,000 in noneconomic damages by a jury against Leann Manning. Pisano was rear-ended by Manning in stopped traffic in 2014 and she sought non-economic, economic and physical damages after suffering from headaches, neck pain and cognitive problems that allegedly arose from the crash.
The jury declined to award damages for physical impairment, but did award $100 per day, totaling over $1.5 million, in noneconomic damages for past and future pain and suffering.
Under Colorado Revised Statute 13-21-102.5(3)(a), noneconomic damages cannot exceed $468,010 unless a court finds clear and convincing evidence to increase it, at which point it is capped at $936,030.
Manning filed a post-trial motion to cap the noneconomic damages at $468,010 and Pisano requested that the court grant the maximum award. Pisano argued the evidence clearly and convincingly showed her neck injuries were permanent, she would need ongoing procedures to manage her pain, and she lives with severe and impairing pain that impacts her daily life.
Since Pisano “does not have a reduced life expectancy, she is able to live independently, she does not suffer from severe scarring and she still has her mobility,” the trial court denied the motion and granted Manning’s motion. Pisano’s case did not rise to “exceptional circumstances” to grant the higher cap, the court concluded.
On appeal, Pisano argued that the lower court applied the wrong legal standard of “exceptional circumstances” to decide if it should exceed the statutory cap and that, even if the court applied the right standard, it abused its discretion by not finding her circumstances exceptional.
Pisano argued that the portion of CRS 13-21-102.5 that states “unless the court finds justification by clear and convincing evidence therefore” is about the award of damages. Therefore, Pisano argued, the court should have looked to the jury’s award of non-economic damages, which was supported by clear and convincing evidence. The Colorado Court of Appeals disagreed and found Pisano’s “construction is at odds with the language the legislature chose.” Since the statute refers to the court’s justification rather than a jury’s award, the Court of Appeals was not moved.
The Colorado Court of Appeals was also not convinced of Pisano’s “exceptional circumstances.” While CRS 13-21-102.5 does not specify what can support a justification to exceed the cap, the court “may consider any factors it deems relevant,” which can include the severity of injuries, the circumstances around the case and other factors.
Reviewing the lower court’s ruling, the Colorado Court of Appeals outlined that it would reverse “only if the trial court’s finding that there was no justification to exceed the cap was manifestly arbitrary, unreasonable or unfair.” The decision to not grant the higher cap was not irrational or unreasonable, the Court of Appeals ruled.
The order capping damages was affirmed.