Court Opinions: Colorado Court of Appeals Opinions for May 4

Editor’s Note: Law Week Colorado edits court opinion summaries for style and, when necessary, length.

People v. Perkins

The Colorado Court of Appeals unanimously affirmed a judgment related to a fire and explosion.

According to court records, in August 2018, a residential apartment building in Denver exploded and caught fire. When authorities arrived, which included two fire investigators from the Denver Fire Department, they found Todd Perkins badly injured and burned in an apartment belonging to tenant Matthew Brady. No one else was injured.

Perkins was hospitalized for several months. A few months after the explosion, police interviewed Perkins and he admitted he was in the basement of Brady’s apartment the day of the explosion.

During the investigation, police learned in the months before the explosion, Perkins worked as a handyman for the building owner and performed repairs in Brady’s apartment. The building owner had recently fired Perkins.

After getting a warrant, police and fire authorities searched the building. Fire investigators observed three disconnected gas lines in the basement. Police also recovered several pieces of evidence during the search including in the basement where they found a small plastic gasoline can without a nozzle. Perkins’ cell phone was found under the gas can. A crescent wrench was found on the basement floor set to fit the diameter of the flex hose for the apartment’s stove.

On the first floor of the apartment, police found the gas stove turned on and the thermostat set to “heat.” Testing confirmed Perkins’ DNA was found on the thermostat and crescent wrench. 

After an examination of the scene, fire investigators concluded the disconnected natural gas lines in the basement of Brady’s apartment caused a combustible mix of natural gas and air that ignited and caused the explosion. 

Before trial, Perkins filed a motion to exclude the expert testimony of the fire investigators, or alternatively, have the court conduct a Shreck hearing to determine whether their testimony was admissible. Shreck is based on a 2001 Colorado Supreme Court opinion. Perkins argued “fire science” was inaccurate and an unreliable source of expert evidence, relying heavily on a law review article discussing how fire science historically produced inaccurate expert evidence. 

The prosecution objected, arguing the scientific principles underlying the testimony were reasonably reliable. The court found the law article presented in Perkins’ motion raised concerns about “old school” arson investigation, but it endorsed the standards set forth by the National Fire Protection Association in its NFPA 921, Guide for Fire and Explosion Investigations. 

The court found the law article Perkins cited supported the NFPA techniques, including NFPA 921, and because the prosecution’s experts were either NFPA certified or otherwise complied with the NFPA standards for fire investigators, Perkins’ motion insufficiently challenged the reliability of their testimony. 

The court denied the motion, permitting the experts to testify at trial. Perkins was found guilty of numerous charges and was sentenced to 195 years with the Department of Corrections.

Perkins appealed 28 criminal convictions, arguing the trial court erred by denying him a Shreck hearing to determine the reliability of the methodology underlying the fire investigators’ expert opinion. Perkins contended the error wasn’t harmless because the proffered testimony was related to the big issue in the case: whether Perkins caused the explosion. 

The appeals court held the standards set forth by the NFPA, and specifically NFPA 921, constituted a reliable basis for an expert’s opinion under Shreck. The appeals court further held strict compliance to NFPA 921 isn’t required for an expert’s testimony under Colorado Rule of Evidence 702 and deviations from NFPA 921 go to the weight of the expert’s opinion and not the opinion’s admissibility. 

The judgment was affirmed.

Macasero v. ENT Credit Union

The Colorado Court of Appeals reversed an order and remanded a case involving the updating of terms for a membership agreement.

Cecilia Macasero purchased a car and entered into a finance agreement with an automobile dealer in 2014. The dealer assigned the agreement to Ent Credit Union, which became Macasero’s creditor. 

To complete the assignment, Macasero became an Ent member by opening a savings account and signing an “Account Application & Signature Card” which included an authorization with multiple terms and conditions, including that the agreement was subject to change at any time at the discretion of Ent unless prohibited by law. The agreement added by using your account and related services, the person agrees to amendments to the terms of the agreement which have been made available to them by mail, electronically on its website or in person.

Macasero received email notices from Ent, including monthly electronic banking statements, which she usually opened. In 2019, Ent updated its membership agreement’s terms to add the arbitration agreement titled “Arbitration and Waiver of Class Action.” Ent notified members by mail or email, depending on how they agreed to receive the notices, but both groups were sent a notice with their monthly bank statement.

Members who consented to electronically deliver notices, as Macasero had, received an email that included an alert to “Membership and Account Agreement” updates. According to Ent’s records, Macasero received the email but didn’t open it. If a member had opened it, they could have clicked on a hyperlink that could have led them to see changes to the membership agreement and how to opt out of them. 

The new arbitration agreement stated the person and credit union agree to attempt to informally settle disputes that are based on services provided by the credit union, but if it cannot be done the user agrees claims after the effective date of the arbitration and waiver class action provision, even if the claim arose out of conduct occurring before the effective date, would at the election of user or bank, be resolved by binding arbitration. The arbitration agreement also contained an opt-out provision where they would have to notify Ent in writing within 30 days after the arbitration agreement was provided to them. 

Macasero didn’t exercise her right to opt out and continued to use her account after receiving Ent’s email containing the update notice. 

When Macasero bought the car, she purchased a Guaranteed Automobile Protection waiver. That waiver provided that if the purchaser’s automobile insurance payout on a total loss claim doesn’t cover the remaining loan balance, the creditor would waive the difference. Macasero elected to pay for the waiver in monthly installments and that cost was added to the principal balance of her finance agreement. Macasero paid off the finance agreement in 2018.

In 2020, Macasero filed a class action complaint and jury demand in district court that alleged breach of contract on behalf of herself and members of a class who entered into finance agreements with GAP waivers, paid off their agreements ahead of schedule and weren’t refunded unearned GAP waiver fees.

In 2021, Ent filed a motion to dismiss and compel arbitration. The district court denied Ent’s motion. The court agreed Ent had the right to unilaterally modify membership agreements, but it found Macasero didn’t have actual or constructive notice of the arbitration agreement. 

Ent appealed, contending the district court erred in determining its email didn’t place Macasero on constructive notice of the arbitration agreement and her right to opt out because its notice was clear and conspicuous. 

The appeals court agreed, contending Macasero received the notice in a manner she agreed upon, it was clear and conspicuous considering the parties’ prior course of dealing and the email was designed in a way that the notice was reasonably conspicuous while the change in terms was easily accessible.

The order denying Ent’s motion to dismiss and compel arbitration was reversed and the case was remanded to the district court for further proceedings.

Appeals Court Judge Sueanna Johnson specially concurred with the majority’s opinion, but did have a caveat.

“Macasero does not cite to, nor does she claim a violation of, any state or federal law that governs the manner in which a financial institution must provide electronic notice to its customers about updated terms and conditions,” Johnson wrote. “And I cannot by judicial fiat require a financial institution to send updated terms and conditions in a different manner than was done here because that is a policy decision left to a legislative body. But I can note that the current ‘reasonable person’ standard that courts use for constructive notice is outdated given the economic realities of the digital age.”

People v. Nozolino

The Colorado Court of Appeals unanimously reversed orders and remanded a case involving postconviction relief.

According to court records, Colorado Rule of Criminal Procedure 35(c)(3)(IV) requires a postconviction court, when reviewing a postconviction motion, to consider multiple items including whether it fails to state adequate factual or grounds for relief. If the motion, files and record show to the court’s satisfaction the defendant isn’t entitled to relief, the court can deny the motion without a hearing. 

If the court doesn’t deny the motion under 35(c)(3)(IV) and the defendant requests counsel be appointed in the motion, the court should serve a complete copy of the motion to the public defender. The public defender has 49 days to file a response on whether the counsel intends to enter on behalf of the defendant, according to Crim. P. 35(c)(3)(V).

In that response, the defender needs to identify if any conflict exists, request any additional time and add any claims the public defender finds to have arguable merit. If a conflict exists, alternate defense counsel should be appointed as the defendant’s counsel for purposes of 35(c)(3)(V). 

Once the ADC or public defender files a response, the court needs to direct the prosecution to respond to the defendant’s claims and the defendant to reply to the prosecution’s response, according to 35(c)(3)(V). Thereafter, the court should grant a prompt hearing on the motion unless, based on the pleadings, the court finds it appropriate to enter a ruling containing written findings of fact and the conclusion of law

A jury found Bruce Nozolino guilty of first-degree murder and 13 counts of attempted first-degree murder. A division of the Colorado Court of Appeals affirmed the judgment of conviction on direct appeal. 

In his 35(c) motion, Nozolino asserted 13 claims of ineffective counsel and newly discovered evidence and requested the appointment of postconviction counsel. In an August 2020 order, the postconviction court denied most of Nozolino’s claims and appointed counsel to represent him on the surviving ones.

The public defender moved to withdraw as counsel because of a conflict of interest and requested the appointment of ADC. That same day, prosecutors submitted a response to Nozolino’s surviving claims and attached documentation refuting them. Prosecutors asked the court to deny the surviving claims and the motion in its entirety without a hearing. 

The postconviction court granted the motion to withdraw for the public defender, but said it would address the appointment of ADC after considering the prosecution’s submitted argument and documentation.

The postconviction court ordered Nozolino to file a pro se response to prosecution’s submission. Nozolino filed a response and again requested the appointment of counsel to help him. Prosecutors then filed a reply to Nozolino’s pro se response.

In a November 2020 order, the postconviction court denied the claims that weren’t denied in August 2020 and vacated its order appointing counsel on those claims. 

Nozolino contended, the prosecutors conceded and the appeals court agreed, the postconviction court didn’t comply with 35(c)(3)(V)’s procedures in resolving the claims not initially denied in August 2020. 

The appeals court concluded the postconviction court didn’t comply with the procedures of 35(c)(3)(IV) and (V), it reversed the orders and remanded the case for the lower court to forward a complete copy of Nozolino’s motion to the public defender or ADC to conduct further proceedings under 35(c)(3)(V).

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