Court Opinions- Jun 08, 2020

People in Interest of R.D.


After a December 2013 school shooting, R.D., a juvenile, was adjudicated delinquent for harassment by communication under section 18-9-111(1)(e), C.R.S. (2013), based on tweets he directed at another student during a heated online exchange in the wake of the shooting. 

The narrow question before the Colorado Supreme Court was whether R.D.’s statements were “true threats.” If so, then application of the statute to his conduct did not violate his First Amendment right to free speech. In light of the U.S. Supreme Court case law, the court refined its earlier statements of the framework for distinguishing a true threat from constitutionally protected speech. It also took the opportunity to provide guidance for applying that test to statements communicated online.

The court held that a true threat is a statement that, considered in context and under the totality of the circumstances, an intended or foreseeable recipient would reasonably perceive as a serious expression of intent to commit an act of unlawful violence. In determining whether a statement is a true threat, a reviewing court must examine the words used, but it must also consider the context in which the statement was made. Particularly where the alleged threat is communicated online, the contextual factors courts should consider include, but are not limited to the statement’s role in a broader exchange, if any, including surrounding events; the medium or platform through which the statement was communicated, including any distinctive conventions or architectural features; the manner in which the statement was conveyed (e.g.,anonymously or not, privately or publicly); the relationship between the speaker and recipient(s); and the subjective reaction of the statement’s intended or foreseeable recipient(s).

Based on the facts in this case, the court reversed the judgment of the Court of Appeals and remanded with instructions to return the case to the juvenile court to reconsider the adjudication under the refined framework.

People v. Jones

A jury concluded that Andre Jones shot and killed his estranged and pregnant wife. Although she died, medical personnel managed to deliver her severely injured baby. The jury found Jones guilty of several crimes related to the shooting, including first-degree murder of his wife and child abuse resulting in serious bodily injury. A division of the Court of Appeals reversed his convictions, determining the trial court erred by excluding Jones’s parents from the courtroom during the testimony of two witnesses. The division therefore reversed the judgment of conviction and remanded the case for a new trial. In a split decision, the division also held that Jones could not be retried for child abuse because an unborn fetus, even if later born alive, is not a “person” under the child abuse statute.

The Colorado Supreme Court affirmed the division’s decision on both issues, albeit on slightly different grounds as to the child abuse issue. First, the trial court’s exclusion of Jones’s parents constituted a partial closure of the courtroom that violated Jones’s Sixth Amendment right to a public trial. Because that error was structural, Jones is entitled to a new trial. Second, the court could not discern the legislature’s intent regarding a defendant’s criminal liability under the child abuse statute for injury he caused to an unborn fetus who is later born alive. Under the rule of lenity, the court vacated Jones’ conviction for child abuse and concluded he may not be retried on that charge.

Richardson v. People

Gary Richardson was found guilty of multiple crimes by a jury that included the trial judge’s wife, Juror 25. Making matters more peculiar, the judge at times casually tossed a spotlight on his relationship to Juror 25. He joked about what was for dinner and forcing his wife to spend more time with him. He also told counsel that he thought his wife would be a “fine juror” and at another point asked them to “[b]e nice” to her. However well-intentioned, all the fanfare around Juror 25 created fairly predictable questions on appeal: Had the judge at least inadvertently conferred a special status on his wife to which defense counsel and the other jurors were expected to defer? Should the judge have excused his wife or himself, even without being asked to do so? 

The Colorado Supreme Court concluded that by failing to object, Richardson waived his challenge to Juror 25. It also concluded that the trial judge did not have a duty to excuse Juror 25 from the jury or recuse himself in the absence of any contemporaneous objection. While the trial judge could have handled this unusual situation in a more restrained manner, his failure to do so did not create reversible error. Accordingly, the court affirmed the judgment of the Court of Appeals.

The Supreme Court considered whether a trial judge reversibly erred by permitting his wife to serve on a jury in a criminal case over which he presided. Because the defendant did not object to Juror 25 sitting on the jury, the Supreme Court concluded that he waived his challenge to Juror 25. The Supreme Court also concluded that in the absence of a contemporaneous objection, the trial judge did not have a duty to excuse Juror 25 on his own or to disqualify himself. Accordingly, the Supreme Court affirmed the judgment of the Court of Appeals.

In Re the Marriage of Wollert

The highly contentious marriage dissolution case, In Re the Marriage of Wollert, was active for more than fourteen years and has an astonishing six hundred and fifty docket entries. Through it all, the parties have shown an utter unwillingness to co-parent. Making no secret of the disdain they have for each other, they continue to fight over their son, who is now 13. 

The Colorado Supreme Court was under no apparent illusion of being able to bring the parties’ protracted dispute to a merciful end. But it nevertheless chose to exercise its original jurisdiction in this case because the C.A.R. 21 petition filed by Francis Joseph, the father, presents a rare opportunity to address a legal question of public importance that arises with some frequency in domestic relations cases: When does a motion to restrict parenting time pursuant to section 14-10-129(4), C.R.S. (2019), require a hearing within fourteen days of the filing of the motion? 

A magistrate in Arapahoe County District Court applied the analytical framework espoused by the Court of Appeals in In re Marriage of Slowinski, and found that no hearing was required on Joseph’s motion to restrict. She concluded that, taking all of the allegations in the motion at face Section 14-10-129(4) provides that a motion to restrict parenting time “which alleges that the child is in imminent physical or emotional danger…shall be heard” within fourteen days. On appeal, the district court sided with Heidi Wollert, the mother, and adopted the magistrate’s order. 

The Supreme Court overruled Slowinski and held that the particularity requirement in C.R.C.P. 7(b)(1) provides the proper standard to review a section 14-10-129(4) motion. Applying Rule 7(b)(1), the court concluded that Joseph’s motion was sufficiently particular to require a hearing within fourteen days. Accordingly, it made the rule absolute. 

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