Court Opinions: Colorado Court of Appeals Opinions for Oct. 13

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

People v. Johnson

The Colorado Court of Appeals reversed and remanded a case related to a Batson challenge.

According to court records, Raeaje Johnson and the victim were in a romantic relationship and had an argument that became physical. Johnson was eventually charged with first-degree burglary, third-degree assault, four counts of violating a protection order, two counts of violating bond conditions, witness tampering and attempting to influence a public servant. He was acquitted of attempting to influence a public servant but convicted of the remaining charges. 

Johnson appealed on multiple grounds, including contending his trial contained a Batson error and improper expert testimony. The appeals court held when a prosecutor offers both a race-based and race-neutral answer in response to a Batson challenge, the trial court needs to apply a per se approach upholding the challenge because when a discriminatory reason is provided, that reason taints the jury selection process.

When applying the approach in this case, the appeals court concluded the trial court erred in denying Johnson’s attorney’s Batson challenge, reversed his convictions and remanded for a new trial. Due to it possibly arising on remand, the appeals court rejected Johnson’s challenge involving the admission of an expert’s testimony.

Under Batson, there is a three-step process when evaluating claims of racial discrimination during jury selection. The first step is the opponent of a peremptory strike (the defendant) must make a prima facie showing the proponent (the prosecution) used the strike against the potential juror based on race. If the opponent establishes a prima facie case, the burden shifts to the proponent. During step two, the proponent needs to come forward with a race-neutral explanation related to the case. If the prosecution met its burden, then it moves to step three where the opponent can rebut the proponent’s explanation, and the court must decide if racial discrimination has been established.

Johnson contended the trial court erroneously denied his attorney’s Batson challenge to Juror M, who was the only Black juror on the panel. An issue was raised concerning Juror M’s questionnaire response to question eight asking if you, a family member or close friend had a good or bad experience with a police officer. Juror M responded yes, elaborating “Many cases where cops are disrespectful due to certain racial identities.” 

In step two, the appeals court found error in the trial court’s conclusion that Juror M’s response was an adequate race-neutral reason for a peremptory challenge. The court wrote in its view, a Black juror’s personal experience with law enforcement that is race-based is not a race-neutral explanation and is a race-based explanation. The appeals court further surmised nothing in the record shows Juror M’s experience showed a bias against law enforcement. 

Johnson also contended the trial court abused its discretion admitting generalized domestic violence expert testimony arguing they didn’t fit the facts of the case. The appeals court disagreed stating it did fit satisfying admissibility requirements.

Appeals Court Judge Michael Berger concurred in part and dissented in part writing “Accordingly, like the majority, I would reverse the judgment, but I would remand for a redetermination under Batson step three. If, on remand, the trial court, applying the correct legal principles, again finds no racial discrimination in the strike of Juror M, the judgment should be affirmed. If, however, the trial court finds that the strike of Juror M was racially motivated or based, then Johnson is entitled to a new trial.”

People v. Romero

The appeals court reversed and remanded a case involving another Batson challenge.

Phillip Romero appealed his conviction of multiple criminal offenses and the trial court’s determination he was guilty of five habitual criminal counts. The appeals court concluded the trial court erred in denying Romero’s Batson challenge to a potential juror.

During jury selection, the prosecution used a peremptory challenge to Juror F, one of two Hispanic jurors in the pool. The defense argued the strike was based on Juror F’s race. The prosecution responded that it was striking Juror F because he seemed disinterested and didn’t seem focused during  the proceedings. The trial court overruled the defense’s Batson challenge.

Court records state Juror F’s answers to questions during voir dire weren’t remarkable with the lower court stating it didn’t have an independent read on whether the juror was disinterested or not. Juror F was eventually excused based on the prosecution’s peremptory challenge. 

The appeals court concluded the trial court’s ruling was in error because nothing in the record supports the trial court’s decision crediting the prosecution’s subjective assessment that the juror appeared disinterested. The majority reversed the judgment and remanded for a retrial.

In dissent, Appeals Court Judge David Richman wrote it would have been better for the trial court to make more findings for the circumstances, but based on the record they have, Richman would defer to the trial court’s ruling. 

Richman continued saying the trial court didn’t consider the proportionality of Romero’s consecutive sentences and because the seriousness of several of his prior convictions could depend on particular facts of the predicate offenses, Richman would remand the case for more proceedings on Romero’s request for proportionality review.

People in the Interest of E.B.

The appeals court unanimously dismissed an appeal concerning guardianship and custody of a child.

Grandparents Y.B. and R.B. Sr. appealed a juvenile court’s order denying their request for permanent custody of their grandchild E.B. The Jefferson County Division of Children, Youth and Families initiated a dependency and neglect proceeding after E.B.’s birth in 2020. A juvenile court gave temporary custody to the JCDCYF, and they placed the E.B. in the grandparents’ care.

According to court records, two months later the JCDCYF moved E.B. to foster care because the grandparents were struggling to care for E.B. The child remained in the foster parents’ care throughout the remainder of the proceedings in the case. 

In 2021, the juvenile court terminated the mother’s and father’s parental rights and determined the grandparents made a timely request for guardianship and custody of E.B. After a contested hearing, the juvenile court denied the grandparents’ request, which they appealed. E.B.’s guardian ad litem moved to dismiss because of a lack of a final order, but a motions division of the appeals court denied that request allowing the appeal to proceed.

When the grandparents were waiting on the appeal, a different division of the appeals court reversed the termination judgment against the father, remanding the case for further proceedings.

The appeals court addressed the guardian ad litem’s request to reconsider the motions division’s order that determined the appeal should proceed. This appeals court division agreed with the guardian ad litem that the appeal must be dismissed because there’s a lack of a final, appealable order.

DiPietro v. Coldiron et al.

The appeals court unanimously reversed and remanded a case involving the Colorado Open Records Act.

According to court records, Michele DiPietro was a paralegal for the Loveland City Attorney’s Office and after DiPietro’s employment ended, she made CORA requests for records in which she was the “person in interest.” Delynn Coldiron, the Loveland city clerk and Moses Garcia, the Loveland city attorney, notified DiPietro that, according to CORA, the city was withholding some emails involving her because they fell under the deliberative process privilege or attorney-client privilege.

DiPietro filed an application for an order to show cause for why the city shouldn’t allow DiPietro to inspect the records under CORA. DiPietro asked for a declaratory judgment that Loveland’s open records regulation, which dictates the city’s responses to CORA requests, violates state law and asked for injunctive relief permanently precluding the city from enforcing the regulation.

The city, however, moved for a camera review of the withheld emails and judgment denying DiPietro’s application for an order to show cause. After a district court reviewed the emails, it issued two orders. One required the city to disclose emails protected by attorney-client privilege and the other required the city to disclose the emails protected by the deliberative process privilege.

The district court found that although the privileges applied to the records at issue, DiPietro could inspect those emails because under Colorado Revised Statute 24-72-204(3)(a), it requires disclosure to the person in interest. The city appealed both orders.

The appeals court concluded under the plain language of 24-72-204(3)(a), the records are not subject to disclosure. The appeals court reversed the district court’s orders and remanded the case to district court with directions to resolve DiPietro’s remaining claims.

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