Court Opinions- Sep 21, 2020

Fisher v. People

On the third day of Gregory Fisher’s trial for five counts of sexual assault on a child, and after the prosecution had presented the majority of its case, the prosecution moved to amend the date range of the charged offenses. The proposed amendment expanded the date range for the charged offenses by approximately six weeks from the original complaint and information. The trial court granted the motion over defense counsel’s objection. The jury ultimately found Fisher guilty on all five counts.

Fisher appealed, contending that the amendment prejudiced his right to present his defense. A split division of the Colorado Court of Appeals disagreed and affirmed his convictions, holding that the amendment was not one of substance and did not prejudice Fisher’s substantial rights to conduct his defense. 

The Colorado Supreme Court granted certiorari to determine“whether an amendment to an information expanding the date range after trial began is permissible under the due process clauses of the U.S. and Colorado constitutions and Crim. P.7(e).” 

Crim. P.7(e) permits a mid-trial amendment only if the amendment is one of form, does not charge an additional or different offense and does not prejudice the defendant’s substantial rights. The court held that, while expanding the date range does not automatically prejudice a defendant’s substantial rights, under the totality of the circumstances of this case, the mid-trial amendment here prejudiced Fisher’s substantial right to fully prepare and present his alibi defense. Accordingly, the court reversed the judgment of the Court of Appeals, vacated Fisher’s convictions and remanded for a new trial. 

Gonzales v. People

After the victim’s murder in this case, his sister-in-law discovered a peculiar microcassette. On that cassette was a recording of a potentially incriminating voicemail. A detective later testified at trial that the message featured a voice like that of Daniel Gonzales, whom the detective had interviewed while investigating the murder.

Over Gonzales’s objection, the court admitted the recorded message into evidence at Gonzales’s trial. It did so based in part on the detective’s identification of Gonzales’s voice. But the detective was not present when the recorded statements were made, and neither he nor anyone else testified about the reliability of the recording process. Even so, after considering the recording and other evidence, a jury found Gonzales guilty of, among other things, first-degree murder.

The Colorado Supreme Court agreed to consider whether the trial court was right to admit the recording. In doing so, it had the benefit of two opinions from two divisions of the Colorado Court of Appeals. 

People v. Baca holds that testimony by a percipient witness or a witness who can vouch for the reliability of the recording process is necessary to authenticate a voice recording. Gonzales contended that the prosecution failed to comply with Baca, and consequently, the trial court abused its discretion in admitting the voicemail. 

In contrast to Baca, Gonzales concluded that CRE 901’s language, including its illustrations, contemplates a flexible, fact-specific inquiry and undercuts Baca’s reliance on older precedent. 

In the absence of evidence suggesting that a proffered voice recording has been altered or fabricated, the Supreme Court held that a proponent may authenticate a recording by presenting evidence sufficient to support a finding that it is what the proponent claims. Once this prima facie burden is met, authenticity becomes a question for the fact finder, in this instance, the jury. Applying this standard, the court concluded the trial court did not abuse its discretion in admitting the voicemail and affirmed the judgment of the Court of Appeals.

Thompson v. People

This case required the Colorado Supreme Court to decide whether the court should adopt the family resemblance test from Reves v. Ernst & Young as the test for determining whether a note is a security for purposes of the Colorado Securities Act. If so, the court must then decide whether a division of the Court of Appeals erred in concluding that the promissory note at issue was a security under the family resemblance test; any error in the jury instruction defining “security” was not plain; and consecutive sentences were permissible because different evidence supported the defendant’s securities fraud and theft convictions.

The Supreme Court adopted the family resemblance test for determining whether a note is a security for purposes of the CSA. Applying that test to this case, the court concluded the promissory note at issue was a security for purposes of the CSA; any instructional error regarding the element of a “security” was not plain because any error was not substantial; and the convictions for securities fraud and theft at issue were not based on identical evidence and therefore consecutive sentences were permissible. Accordingly, the court affirmed the judgment of the division.

Barrett Corp. v. Lembke

In 2015, the owners of 70 Ranch successfully petitioned to include their tract in a special district. The district then began taxing the lease holders of subsurface mineral rights for the oil and gas they produced on the ranch. Lessees objected to being taxed, arguing they nor the owners of the mineral estates consented to inclusion.

The Colorado Supreme Court reviewed two questions concerning the Special Districts Act, but the answer to one obviates the need to answer the other. 

The court considered only whether subsection 401(1)(a) permits the inclusion of real property covered by the statute into a special taxing district when the inclusion occurred without notice to or consent by the property’s owners and that property is not capable of being served by the district. 

The answer to this question is “no,” but Section 32-1-401 sets out the processes for “[i]nclusion of territory” within the boundaries of a special district. Therefore, section 32-1-401(1)(a) requires the assent of all surface property owners to an inclusion under that provision, and inclusion is only appropriate if the surface property can be served by the district. Section 32-1-401(1)(a) does not require assent from owners of subsurface mineral estates because those mineral estates, while they are real property, are not territory. 

The court affirmed the holding of the Colorado Court of Appeals, albeit on other grounds. 

People v. Rigsby

A jury found Derek Rigsby guilty of two counts of second-degree assault and one count of third-degree assault based on the same criminal conduct. On appeal, a division of the Colorado Court of Appeals concluded the guilty verdicts for second-degree assault and the guilty verdict for third-degree assault were mutually exclusive. The division reasoned that the guilty verdicts could not be reconciled because the second-degree assault convictions required the jury to find that the defendant acted intentionally and recklessly and was thus aware of the risk of bodily injury, while the third-degree assault conviction required the jury to find that the defendant acted with criminal negligence and was thus unaware of the risk of bodily injury. Therefore, the division vacated the judgment of conviction and remanded for a new trial. 

The Colorado Supreme Court reversed the division’s judgment. Section 18-1-503(3), C.R.S. (2019), sets up a hierarchical system of culpable mental states in which: “intentionally” or “with intent” is the most culpable, “knowingly”is the next most culpable, “recklessly” is the next most culpable, and “criminal negligence”is the least culpable; and proving a culpable mental state necessarily establishes any lesser culpable mental state(s). Pursuant to section 18-1-503(3), then, by returning a guilty verdict on count 1 and finding that Rigsby acted with intent, the jury, as a matter of law, necessarily found that he acted with criminal negligence, and by returning a guilty verdict on count 2 and finding that Rigsby acted recklessly, the jury, as a matter of law, necessarily found that he acted with criminal negligence. 

Hence, even if each of the guilty verdicts for second-degree assault is logically inconsistent with the guilty verdict for third-degree assault, no legal inconsistency exists. And guilty verdicts that are legally consistent are not mutually exclusive. Despite finding guilty verdicts are not mutually exclusive, the Supreme Court held the trial court entered multiplicitous convictions, thereby violating the defendant’s right to be free from double jeopardy. 

Accordingly, the Supreme Court remanded to the Court of Appeals with instructions to return the case to the trial court to merge the convictions into a single second-degree assault conviction and to leave in place only one sentence. 

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