Court Opinions: Colorado Supreme Court Opinions for June 10

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

People v. Garcia

After a jury convicted him of first-degree aggravated motor vehicle theft, Donald Garcia argued for the first time on appeal that the judge who presided over his case was statutorily disqualified because, when she was the managing defender for the Alamosa Public Defender’s Office, she had covered for his lawyer in a brief pretrial proceeding. Garcia asserted that this amounted to structural error requiring automatic reversal. 

A split division of the Colorado Court of Appeals agreed and reversed Garcia’s conviction. The Colorado Supreme Court granted certiorari to consider whether a defendant who is aware of potential grounds to disqualify a judge, but fails to object, waives or forfeits their claim that the judge was disqualified under Colorado’s judicial disqualification statute. 

The state Supreme Court concluded that a defendant who fails to object under these circumstances waives their objection.

The court also reasoned that because the record in this case establishes that Garcia waived his claim, it didn’t need to decide whether it’s structural error for a statutorily disqualified judge to preside over a case under the circumstances presented in this case.

It reversed the judgment of the division.

People v. Crabtree

Recognizing that it erred in the remedy it meted out in Linnebur v. People, the Colorado Supreme Court held that a trial court’s error in failing to present the element of the defendant’s relevant convictions to the jury in a felony DUI case is not structural and is instead a trial error. 

It doesn’t require automatic reversal, the state’s high court found, but is subject to an appropriate case-specific, outcome-determinative standard of reversal. Because the error in this case wasn’t preserved, the state Supreme Court reviewed for plain error. 

The Colorado Supreme Court reaffirmed that, to qualify for relief under Rule of Criminal Procedure 52(b), an error must be plain (i.e., obvious or clear-cut) at the time of trial. And given the different analytical frameworks in Colorado’s plain error cases on the one hand, and the U.S. Supreme Court’s plain error cases on the other, the state Supreme Court explained it declined to adopt the time-of-appeal rule ushered in by Johnson v. United States and Henderson v. United States. According to the opinion, the differences between the two standards demonstrate the danger in selectively borrowing a single aspect of the federal plain error standard (the temporal scope of the plainness prong) while disregarding the rest.

The Colorado Supreme Court found the Colorado Court of Appeals in this case correctly reviewed for plain error. But it incorrectly found plain error based on the plainness of the error at the time of appeal, even though it is undisputed that the error wasn’t plain at the time of trial. Because the error wasn’t plain at the time of trial, the defendant isn’t entitled to relief under Rule 52(b). 

The judgment was reversed, and the case was remanded to the Court of Appeals with instructions to return it to the trial court for reinstatement of the defendant’s felony DUI conviction and sentence. 

In the Matter of the Estate of Ashworth

Medical records can play a vital role in contested probate proceedings when the deceased’s mental capacity prior to passing is in question. Sometimes, though, when one party to a will dispute seeks to introduce medical records of the deceased, the other party resists disclosure, asserting that the records are protected by the physician-patient privilege. The Colorado Supreme Court noted that’s what happened in this case.

Brian Ashworth contested the validity of his father’s most recent will, raising questions about Robert Ashworth’s testamentary capacity and susceptibility to undue influence. The trial court ordered the decedent’s daughter Christine Miller to produce medical records for the final eight years of Robert Ashworth’s life for an in camera review. She resists any disclosure of the records, citing the physician-patient privilege.

The state Supreme Court held that the physician-patient privilege survives the privilege holder’s death, but that the testamentary exception provides for disclosure of the decedent’s privileged medical records if they are required to administer the estate.

The court discharged the rule to show cause and lifted the stay on the trial court’s in camera review of Robert Ashworth’s medical records.

In Re Jordan v. Terumo BCT

Plaintiffs in this toxic tort action retained an expert to determine and opine on where and when they were exposed to a carcinogen that they claim was emitted from a plant operated by Terumo BCT, Inc. and Terumo BCT Sterilization Services, Inc. To facilitate the completion of the expert’s analysis, plaintiffs’ counsel provided to the expert a spreadsheet detailing where each plaintiff lived and worked and when.

Terumo demanded that plaintiffs produce to them not only the spreadsheet but also any communications between plaintiffs and their counsel that contained the information that plaintiffs’ counsel used to create the spreadsheet. Over plaintiffs’ objection that such communications were privileged and beyond the scope of disclosures required by Colorado Rule of Civil Procedure 26(a)(2), the district court granted Terumo’s request and ordered plaintiffs to produce “the raw facts or data reported by plaintiffs” to their counsel.

Plaintiffs sought relief under Colorado Appellate Rule 21. The Colorado Supreme Court issued a rule to show cause that required it to address two issues. One was whether the district court erred in finding that the attorney-client privilege doesn’t apply to protect a client’s confidential communications of facts to trial counsel. And the other was whether the district court erred in finding that, when trial counsel provided to an expert a spreadsheet of information learned in confidential client communications, plaintiffs waived — and procedural Rule 26(a)(2) requires disclosure of — the underlying client communications that the expert never saw.

The Colorado Supreme Court concluded that although the underlying facts are not privileged, the district court erred in finding that the attorney-client privilege doesn’t apply to protect a client’s confidential communications of such facts to trial counsel. Clients routinely provide factual information to their counsel. The state’s high court noted this doesn’t mean that opposing counsel is entitled to obtain the clients’ communications containing such facts. Rather, the proper method of obtaining such facts is through discovery directed at the clients.

The court also concluded that the district court erred in finding that procedural Rule 26(a)(2) required plaintiffs to disclose not only the spreadsheet provided to their expert, but also any privileged and confidential communications that the expert never saw but that counsel used to prepare the spreadsheet. Contrary to Terumo’s assertion and the district court’s apparent belief, the court explained the disclosure of the spreadsheet to the expert in this case didn’t effect a waiver of privilege. Rather, plaintiffs were obligated to produce only the information that they provided to their expert.

The Supreme Court made its rule to show cause absolute.

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