Colorado Supreme Court
May 2017 Summaries of Selected Opinions

May 15, 2017

       2017 CO 39. No. 16SC366. Foster v. Plock. Claim Preclusion—Issue
Preclusion—Mutuality.
       In this case, the Supreme Court considered whether mutuality is a necessary
element of defensive claim preclusion. Although multiple divisions of the Court of
Appeals have concluded that mutuality need not be established for the defensive use of
claim preclusion, the Court disagrees. Instead, the Court concluded that mutuality is a
necessary element of defensive claim preclusion. The Court also concluded that mutuality
existed in this case, as did the remaining elements of claim preclusion, and therefore
affirmed the judgment of the Court of Appeals on other grounds.

        2017 CO 40. No. 12SC832. Montoya v. People. Extreme Indifference Murder—
Self-Defense—Accessory to Crime—Invited Error.
        Montoya petitioned for review of the Court of Appeals’ judgment affirming his
convictions for attempted extreme indifference murder, reckless manslaughter, criminally
negligent homicide, and accessory to crime. See People v. Montoya, No. 06CA1875
(Colo.App. Sept. 13, 2012). Montoya and his cousin were tried together for the shooting
death of a woman at a party, in the course of which they each fired a number of rounds in
the direction of other party-goers. In a separate appeal to the Court of Appeals,
Montoya’s homicide convictions were initially reversed for failure to properly instruct
concerning self-defense against multiple assailants, but upon remand for reconsideration
in light of intervening Supreme Court jurisprudence, all of his convictions were affirmed,
not only with regard to the disputed issue of multiple assailants but against a variety of
other assignments of error as well. Montoya’s subsequent petition for a writ of certiorari
was partially granted by this Court.
        The Supreme Court affirmed the judgment of the Court of Appeals. The Court
held that (1) there was sufficient evidence to support Montoya’s conviction of attempted
extreme indifference murder; (2) Montoya was barred from challenging on appeal the
sufficiency of the evidence supporting his conviction for being an accessory to crime, a
lesser non-included offense presented to the jury at his request; and (3) Montoya’s
simultaneous convictions of reckless manslaughter and accessory to crime neither merged
nor required concurrent sentences.

       2017 CO 41. No. 15SC226. Colorado Department of Revenue v. Creager.
Statutory Construction—Tobacco taxation.
       The Supreme Court granted certiorari review to determine whether Blunt Wraps, a
type of cigar wrapper made in part of tobacco and designed to be filled with smoking
material and smoked, may be taxed as “tobacco products,” as that term is defined in CRS
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§ 39-28.5-101(5). The Court held that because Blunt Wraps are a “kind” or “form” of
tobacco and are “prepared in such manner as to be suitable . . . for smoking,” they fall
within the plain language of the statutory definition of “tobacco products” and are taxable
accordingly. The Court therefore reversed the judgment of the Court of Appeals.

        2017 CO 42. No. 15SC710. Stoorman v. Dixon. Attorneys’ Liens—Dissolution of
Marriage.
        In this case, the Supreme Court considered whether attorneys’ charging liens may
attach to spousal maintenance awards under Colorado’s attorney’s lien statute. The Court
applied the plain language of the attorney’s lien statute, CRS § 12-5-119, which provides
that attorneys shall have a lien on “any judgment they may have obtained or assisted in
obtaining,” and held that an attorney’s charging lien may attach to an award of spousal
maintenance. Accordingly, the Court reversed the Court of Appeals’ judgment and
remanded this case to that court with instructions to return the case to the trial court for
proceedings consistent with this opinion.

       2017 CO 43. No. 16SA166. Select Energy Services, LLC v. K-LOW, LLC.
Water Law—Change of Water Right—Rules of Water Decree Interpretation—Nature and
Extent of Right Acquired.
       This appeal from the water court in Water Division No. 1 concerns the nature and
extent of a water right following a recent change to its diversion point. The right initially
diverted water at a headgate on the South Platte River, but pursuant yo the recently
enacted simple change statute, CRS § 37-92-305(3.5), its owner changed that diversion
point to a pump farther downstream. Interpreting the decree recognizing the change, the
water court concluded it did not include a right to divert water from a ditch historically
used to convey the water right. On appeal, Supreme Court reached the same conclusion.
Because, by its plain language, the decree defining the water right allows its holder to
divert water only at the pump downriver from the disputed ditch, and that language is not
susceptible to any other reasonable interpretation, the Court concluded that the decree
does not include a right to divert water from that ditch. The Court therefore affirmed the
water court’s judgment.

        2017 CO 44. No. 16SA170. People v. King. Searches and Seizures—Refusal to
Submit to Blood-Alcohol Testing—Admission of Refusal Evidence.
        In this interlocutory appeal, the Supreme Court considered whether the
prosecution’s use of a defendant’s refusal to consent to blood-alcohol testing as evidence
of guilt at trial for a drunk-driving offense, in accordance with CRS § 42-4-1301(6)(d),
violates his Fourth Amendment right to be free from unreasonable searches. Because the
Court recently held in Fitzgerald v. People, 2017 CO 26, P.3d, that the use of such
refusal evidence does not violate the Fourth Amendment, that holding controls here, and
defendant’s challenge to CRS § 42-4-1301(6)(d) fails. The Court therefore reversed the
trial court’s order.
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        2017 CO 45. No. 16SA171. People v. Sewick. Searches and Seizures—Refusal to
Submit to Blood-Alcohol Testing—Admission of Refusal Evidence.
        In this interlocutory appeal, the Supreme Court considered whether the
prosecution’s use of a defendant’s refusal to consent to blood-alcohol testing as evidence
of guilt at trial for a drunk-driving offense, in accordance with CRS § 42-4-1301(6)(d),
violates his Fourth Amendment right to be free from unreasonable searches. Because the
Court recently held in Fitzgerald v. People, 2017 CO 26, P.3d, that the use of such
refusal evidence does not violate the Fourth Amendment, that holding controls here, and
defendant’s challenge to CRS § 42-4-1301(6)(d) fails. The Court therefore reversed the
trial court’s order.

        2017 CO 46. No. 16SA172. People v. Maxwell. Searches and Seizures—Refusal
to Submit to Blood-Alcohol Testing—Admission of Refusal Evidence.
        In this interlocutory appeal, the Supreme Court considered whether the
prosecution’s use of a defendant’s refusal to consent to blood-alcohol testing as evidence
of guilt at trial for a drunk-driving offense, in accordance with CRS § 42-4-1301(6)(d),
violates his Fourth Amendment right to be free from unreasonable searches. Because the
Court recently held in Fitzgerald v. People, 2017 CO 26, P.3d, that the use of such
refusal evidence does not violate the Fourth Amendment, that holding controls here, and
defendant’s challenge to CRS § 42-4-1301(6)(d) fails. The Court therefore reversed the
trial court’s order.

        2017 CO 47. No. 16SA194. People v. Maxwell. Searches and Seizures—Refusal
to Submit to Blood-Alcohol Testing—Admission of Refusal Evidence.
        In this interlocutory appeal, the Supreme Court considered whether the
prosecution’s use of a defendant’s refusal to consent to blood-alcohol testing as evidence
of guilt at trial for a drunk-driving offense, in accordance with CRS § 42-4-1301(6)(d),
violates his Fourth Amendment right to be free from unreasonable searches. Because the
Court recently held in Fitzgerald v. People, 2017 CO 26, P.3d, that the use of such
refusal evidence does not violate the Fourth Amendment, that holding controls here, and
defendant’s challenge to CRS § 42-4-1301(6)(d) fails. The Court therefore reversed the
trial court’s order.




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