Court Opinions- Dec 23, 2019

Vigil v. People

Nathan Richard Vigil was charged with first-degree aggravated motor vehicle theft, second-degree burglary, theft and attempt to commit second-degree burglary in connection with the disappearance of a truck, motorcycle and various other items of personal property from a farm in Conejos County. The attempted burglary count was dismissed and the defendant was acquitted of theft, but he was convicted of second-degree burglary and a lesser included offense of second-degree aggravated motor vehicle theft. He was sentenced to concurrent terms of six years and 18 months in the custody of the Department of Corrections.

Evidence was presented at trial from which the jury could find that in November 2010, the victim discovered that his truck, motorcycle and other personal property were missing from his farm. An officer of the Conejos County Sheriff’s Department responded to the farm and photographed shoe prints near the area where the truck had been parked. Witnesses informed the officer that the defendant had asked them to tow a truck to a trading post in the area but they had not realized at the time that the truck belonged to the victim. While the defendant was being held for a different crime at the Alamosa County Sheriff’s Office, the officer examined his shoes and determined that they “visually matched” shoe prints on the victim’s farm. 

During voir dire, Juror C.A. indicated that he knew the victim’s family and that he might work on the father’s farm equipment sometime in the future, and he appeared equivocal as to whether he could render an impartial verdict for these reasons. The court denied defense counsel’s challenge for cause after directly asking C.A. if he could evaluate the victim’s testimony “just like all the other witnesses who will testify,” and after receiving C.A.’s answer,“I think I could.” The court subsequently granted a prosecution challenge to prospective Juror D.K. on the ground that he was biased against the police and prosecution. Ultimately, both the prosecution and defense exhausted their allotted number of peremptory challenges, and neither used a peremptory challenge to strike Juror C.A. nor requested any additional challenge.

Without qualification as an expert and over defense objection at trial, the investigating officer in question was permitted to opine, on the basis of his observation of what he considered to be identical “Skechers” emblems and similar size, that the soles of the shoes he examined at the Sheriff’s Office “visually matched the prints that were out on the scene.”

Vigil sought review of the Court of Appeals’ judgment affirming his convictions of second degree burglary and second degree aggravated motor vehicle theft. As pertinent to the issues on review in the Colorado Supreme Court, the trial court denied Vigil’s for-cause challenge to Juror C.A. but granted the prosecution’s challenge to Juror D.K. At trial, and over defense counsel’s objection, an officer was permitted to opine without qualification as an expert that Vigil’s shoes visually matched shoe prints he photographed at the crime scene. With regard to Vigil’s assignments of error concerning these rulings, the Court of Appeals concluded that the trial court had not abused its discretion by denying Vigil’s challenge to Juror C.A.; that any error committed in granting the prosecution’s challenge to prospective Juror D.K. would in any event have been harmless; and that the trial court did not abuse its discretion in allowing the officer to offer a lay opinion concerning the shoe print comparison in question.

The Supreme Court affirmed, ruling that the trial court did not abuse its discretion in denying Vigil’s challenge to Juror C.A.; granting the prosecution’s challenge to prospective Juror D.K., even if it amounted to an abuse of discretion, did not result in any violation of Vigil’s rights; and the trial court did not abuse its discretion in admitting the officer’s testimony as lay opinion.

People v. Bobian

Michael Edward Bobian appealed the judgment of conviction entered on jury verdicts finding him guilty of attempted second-degree murder and first-degree assault. 

The charges stemmed from an altercation during a party at Stephanie Torres’ apartment. Lindsey Collins, who had been staying with Torres for a few days, called a friend for a ride. The friend in turn called Bobian and asked him to pick up Collins from Torres’ apartment. Bobian and three of his friends entered Torres’ apartment unannounced. 

Annoyed by the presence of strangers in her home, Torres became belligerent and told them to leave. A fight then broke out between Torres and Bobian’s friends. Torres screamed for the victim, T.H., who was outside. The events that took place next were disputed at trial. 

The victim testified that he ran through the front door to Torres’ aid, and Bobian preemptively struck him on the head with a hatchet. After a struggle, the victim was able to get control of the hatchet from Bobian, and Bobian and his friends then fled the apartment. 

Collins took the stand for the defense and gave a different account. She testified that when the victim ran into the apartment and found Torres being attacked by Bobian’s friends, the victim struck Bobian from behind and a second fight broke out. Collins testified that the victim continued to attack Bobian, who was squatting on the ground. At some point, Collins realized that Bobian and the victim were fighting over a hatchet and that the victim appeared injured.

The jury acquitted Bobian of attempted first-degree murder but found him guilty of attempted second-degree murder and first-degree assault. Where a trial court allowed a police detective witness to offer undisclosed expert testimony about blood residue and tool markings evidence, a division of the Court of Appeals held that the error was harmless under the circumstances. The division further concluded that where the detective served as the prosecution’s advisory witness and testified about the consistency of the eyewitnesses’ trial testimony with their statements just after the charged incident, any error in admitting the testimony did not amount to prejudicial plain error that would warrant reversal. The division also rejected claims of prosecutorial misconduct.

People v. Gregory

In September 2014, Gregory, who was 17 years old at the time, drove while intoxicated and crashed his vehicle, killing two passengers (B.B. and R.P.) and seriously injuring a third (J.C.). Gregory pleaded guilty, as an adult, to two counts of vehicular homicide. On Oct. 11, 2015, Gregory’s insurance company settled with the two deceased victims’ families and the living victim. Each of the deceased victims’ families received $500,000 and, in exchange, released Gregory, his parents and his insurance company from all claims stemming from the incident. 

On Oct. 16, 2015, the court sentenced Gregory to a 12-year suspended prison sentence, conditioned on completion of four years in the Youthful Offender System. During sentencing, the court reserved restitution for 91 days. On Jan. 6, 2016, the prosecution requested restitution of $15,513.43. The requested restitution consisted of $3,307.33 to R.P.’s family for travel expenses and psychologist fees for R.P.’s brother; and $5,542 and $6,664.10 to the Crime Victim Compensation Program for payments made to B.B.’s and R.P.’s families, respectively, for funeral expenses. 

On May 27, 2016, following a restitution hearing, the court entered a restitution order for the entire amount requested by the prosecution. The order stated that defendant had 30 days to object to the amount of restitution before the order became final. Defendant filed an objection on June 8, 2016 — within the allotted 30 days — arguing that the court should “reconsider” its order. The court issued an amended restitution order on July 11, 2016, in which it removed the payment that was to be made directly to R.P.’s family, reasoning that it was set off by the settlement agreement. The court maintained that defendant was liable to the CVCP, as the fund was not a party to the settlement agreements. 

Gregory appealed the amended restitution order, arguing that the court erred by denying him a setoff for the CVCP payments. The People filed a cross-appeal in which they argue that the court did not have authority to change its May 27, 2016, restitution order, and the court erred by granting defendant a setoff for the payment to R.P.’s family.

The division decided that the court’s authority to decrease restitution does not carry with it the same limitations placed on its authority to increase restitution previously ordered. The division also concluded that the comprehensive settlement agreement in this case — which was intended to cover all liabilities and indemnified defendant for any further losses — meets defendant’s burden of going forward to show that he compensated the victims for the same categories of losses for which restitution could be imposed. Thus, the division reversed and remanded for further proceedings.

Andrews v. Miller

Plaintiffs Paul and Terry Andrews entered into a written contract with Interior Living Designs for floor covering materials, which, according to their complaint, were never fully delivered. The Andrews pleaded claims for civil theft, for breach of contract, and to pierce the corporate veil, making Mark Miller, ILD’s president, liable for any judgment obtained against ILD. 

After the magistrate entered the delay reduction order, the Andrews filed the motion based on an arbitration provision in the contract. After full briefing on the motion but without holding a hearing, the magistrate denied it, finding that the arbitration provision was “void as against public policy” and “unenforceable.” The magistrate’s order said that it was “issued with the consent of the parties.” Following entry of the delay reduction order, this ruling was the magistrate’s only action in the case.

The Andrews moved for district court review under C.R.M. 7(a). Citing the delay reduction order, the magistrate denied the motion. She explained, “The court presides over this case with the consent of the parties” and “any appeal must be taken pursuant to C.R.M. 7(b)” in the Court of Appeals. The Andrews then filed their notice of appeal.

In the appeal, a division of the Court of Appeals addressed whether a magistrate had jurisdiction under C.R.M. 6(c)(2) to rule on a motion to dismiss, which could be done only with the consent of the parties. The division held that because the parties did not have proper notice under C.R.M. 5(g), they did not consent to the magistrate ruling on the motion based on their lack of objection. Without the parties’ consent, the magistrate lacked jurisdiction to rule on the motion under C.R.M. 6(c)(2). 

For these reasons, the division reversed the magistrate’s denial of the Motion and remanded for further proceedings.

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