Editor’s Note: Law Week Colorado edits court opinion summaries for style and, when necessary, length.
A division of the Colorado Court of Appeals held that trial courts must define “universal malice” to juries as outlined by the Colorado Supreme Court’s 2006 ruling in Candelaria v. People. The latest ruling directly conflicts with a previous decision by a separate division of the Colorado Court of Appeals released June 10.
After allegedly shooting and killing his wife, James Draper committed a spree of crimes he said were in the hopes of committing “suicide by cop.” Draper car-jacked a vehicle then proceeded to drive while firing at other cars and shooting three.
Draper was convicted by a jury of two counts of attempted extreme indifference murder and, due to a number of other convictions, was sentenced to 400 years in prison. Draper asserted on appeal, in addition to a handful of other claims, that the trial court erred when it did not define an element of extreme indifference murder — “universal malice” — to the trial jury.
A recent ruling by a different division of the court of appeals in People v. Garcia found the ordinary meaning of universal malice by combining the Webster’s Dictionary definition for “universal” and “malice.” The court in Draper disagreed with Garcia’s definition of universal malice, adding in its opinion summary that “when courts define complex legal concepts or constructs by consultation with dictionaries and then do not instruct jurors on the derived definition, problems arise.”
It held that universal malice does not have a common, universal meaning and therefore the trial court erred by not defining the element for the jury. It looked to the Colorado Supreme Court’s ruling in Candelaria to define universal malice as “conduct that, by its very nature and the circumstances of its commission, evidences a willingness to take human life indiscriminately, without knowing or caring who the victim may be or without having an understandable motive or provocation.”
Because evidence of Draper’s actions proved he acted with universal malice by firing at random cars, the Colorado Court of Appeals upheld his conviction.
Self-serving hearsay by a criminal defendant is admissible in court as long as it complies with Colorado Rules of Evidence 403, a division of the Colorado Court of Appeals ruled.
Jacob Vanderpauye was convicted of sexual assault (victim physically helpless) by a jury. According to facts presented in court, the victim went back to Vanderpauye’s home after a night of heavy drinking. The two kissed before falling asleep. Hearsay comments between both parties came into question at Vanderpauye’s trial.
Vanderpauye moved to permit the jury to hear his response, “I thought you said I could do anything to you.” He argued that even though it was hearsay, it was admissible under the excited utterance and then-existing state of mind exceptions to CRE. He also asked that his hearsay claims that the victim said “you can do anything to me ” be admitted for the purpose of its effect on the listener. The trial court did not admit either statement because they were self-serving hearsay and it found that it met neither exceptions to CRE.
Reviewing case law and statutes, the Colorado Court of Appeals did not find self-serving hearsay was banned in Colorado as long as it complies with other rules of evidence. It overturned the trial court’s exclusion, finding that “the trial court erred as a matter of law when it relied on this nonexistent evidentiary rule to exclude Vanderpauye’s self-serving statement.”
It further agreed with Vanderpauye that his hearsay evidence could be admitted under the excited utterance and then-existing state of mind exceptions. The Court of Appeals found the trial court’s error was not harmless and reversed Vanderpauye’s conviction and remanded for a new trial.
Cummings v. Arapahoe County Sheriff’s Office
Applying its earlier decision from Cummings I v. Arapahoe County Sheriff’s Office, the Colorado Court of Appeals ruled a lower court erred by asking a jury to consider an employer’s compliance with a non-contractually binding policy to determine if there was a breach of contract.
Former Arapahoe County Sheriff’s deputy Michael Cummings was fired in 2015 after the department investigated claims he violated department policies while teaching a specialized driving techniques course. Cummings sued the Arapahoe County Sheriff’s department claiming the written employment policies were an implied employment contract that the sheriff breached when he terminated Cummings.
In 2018, a division of the Colorado Court of Appeals found state law meant that sheriff’s departments have at-will-employment, for the most part, but sheriff’s deputies are also entitled to specific due-process rights with termination.
After the 2018 verdict, a jury awarded Cummings $153,578 in damages and found the Arapahoe County Sheriff’s office breached the employment contract by not providing sufficient notice of investigation. The trial court allowed the jury to consider if the sheriff breached a certain section of the employee manual that required internal investigations to outline “a list of possible Code of Conduct violations.”
On appeal, the County Sheriff claimed that the trial court incorrectly instructed the jury to consider if it had breached the specific provision of the employee policies. The Colorado Court of Appeals agreed, determining that the rights set forth in Cummings I were not outlined in the questioned employee policy. The Colorado Court of Appeals overturned the district court’s judgment.