per se rule in Colorado

2016Id at 1518, 1525 In doing so, the court exphcltly hrmted its holdmg to the particular facts of the case: "Under these circumstances and based on the evidence presented in this case, this Court can come to no other conclusion than that [the] repeated payments of substantial sums of money to [the witnesses] had an effect on the testimony they gave in this action." Id. at 1526 . 1 23 We read Golden Door and other similar cases as examples of: trial courts exercising their discretion based on the facts of the case rather than acting in conformity with or adopting a per se rule. 6 Thus, "[iJn our v

2013See People v. Romero, 745 P.2d 1003, 1016 (Colo.1987) (“per se rule of admissibility or inadmissibility [based on hypnosis of witness] ... is inconsistent with the general trend of witness competency that every person is competent to be a witness”); People v. McKeehan, 732 P.2d 1238, 1240 (Colo.App. 1986) (“While evidence of relaxation techniques may be used to impeach a witness’ credibility ... it does not render the witness per se incompetent to testify.”); see also United States v. Cervantes-Pacheco, 826 F.2d 310, 315 (5th Cir. 1987) (rejecting a per se rule that “an informant who is promis

2012See, eg., United States v. Koppers Co., 652 F.2d 290, 294 (2d Cir.1981); United States v. Bensinger Co., 480 F.2d 584 , 589 (8th Cir.1970); Love v. Basque Cartel, 873 F.Supp. 563, 576 (D.Wyo.1995). 1 28 Thus, we look to federal cases involving bid rigging as a guide to our determination of what constitutes bid rigging.

2010See, e.g., United States v. Koppers Co., 652 F.2d 290, 294 (2d Cir.1981).

2007While this Court has never decided the issue, a *928 majority of courts have rejected a per se rule that an attorney has provided ineffective assistance to a criminal defendant even when an attorney is suspended or disbarred during a criminal defendant's trial E.g., United States v. Stevens, 978 F.2d 565, 567-68 (10th Cir.1992); People v. Kenny, 30 P.3d 734, 743 (Colo.App.2000) (listing federal and state cases rejecting a per se rule in favor of a case-by-case inquiry).

2006See People v. Kenny, 30 P.3d 734, 743 (Colo.App.2000)(“[s]us-pension or disbarment can result from ethical misconduct or other bad behavior that does not necessarily indicate a lack of knowledge of the law”; thus, disbarment does not warrant a per se rule of ineffectiveness).

2006See People In interest of N.A.T., supra ; In re L.M., 654 N.W.2d 502 (Iowa 2002)(holding that under the similar Iowa rule, the shortened time for filing a petition on appeal, which precludes review of the transcript, does not give rise to a per se claim of ineffective assistance of counsel).

2006See People In interest of N.A.T., supra; In re L.M., 654 N.W.2d 502 (Iowa 2002)(holding that under the similar Iowa rule, the shortened time for filing a petition on appeal, which precludes review of the transcript, does not give rise to a per se claim of ineffective assistance of counsel).

1999See, e.g., Commonwealth v. McCutchen, 463 Pa. 90 , 343 A.2d 669 (Pa.1975).

1999See, e.g., Commonwealth v. McCutchen, 463 Pa. 90 , 343 A.2d 669 (Pa.1975).

2002See Florida v. Bostick, 501 U.S. 429 , 111 S.Ct. 2382 , 115 L.Ed.2d 889 (1991) (officers boarding a bus and questioning passengers without a basis for believing a crime had occurred was not a per se violation of the Fourth Amendment; issue requires individual assessment of circumstances and determination whether reasonable person would feel free to end encounter or decline to answer questions posed).

2002See Florida v. Bostick, 501 U.S. 429 , 111 S.Ct. 2382 , 115 L.Ed.2d 889 (1991) (officers boarding a bus and questioning passengers without a basis for believing a crime had occurred was not a per se violation of the Fourth Amendment; issue requires individual assessment of circumstances and determination whether reasonable person would feel free to end encounter or decline to answer questions posed).

2017Id. at 1563 .

2014See id. at 1558 ("[The importance of requiring authorization by a 'neutral and detached magistrate' before allowing a law enforcement officer to 'invade another's body in search of evidence of guilt is indisputable and great' " (quoting Schmerber, 384 U.S. at 770 , 86 S.Ct. 1826 )) (part ILA). 1389 Other parts of the majority opinion articulate a totality of the circumstances standard and explicitly reject a per se rule focusing on only one consideration.

2012In Medina, the supreme court held that questions from jurors do not constitute a per se violation of a criminal defendant's constitutional rights. 114 P.3d at 847 .

2012The court pointed out that juror questions had "'deeply entrenched' roots in the common law." Id. (quoting United States v. Bush, 47 F.3d 511, 515 (2d Cir.1995)).

2009Cities Broad., Inc. v. Schueller, 849 P.2d 44, 49 (Colo.1993).

2002Inc. v. Schueller, 849 P.2d 44 (Colo.1993)(plaintiff had no history of prior profitability and had never operated at a profit under its present ownership; court declined to adopt a per se rule requiring a showing of past profits); Cope v. Vermeer Sales & Serv., Inc., 650 P2d 1807 , 1309 (Colo.App.1982)("[allithough a plaintiff seeking to enter evidence of loss of profits in a newly established business does not have a 'prior track record' to ground a claim upon, this does not create a 'per se' exclusion of such loss if other competent evidence is proffered").

2004See People v. Underwood, 53 P.3d 765, 772 (Colo.App.2002)(quoting People v. Wilson, 838 P.2d 284, 290 (Colo.1992), and noting that People v. Roberts, 738 P.2d 380 (Colo.App.1986), did not establish a per se rule requiring automatic reversal upon the *4 court’s failure to sua sponte give a contemporaneous limiting instruction under § 16 — 10— 301(4), C.R.S.2003, concerning similar transaction evidence in sex assault cases: “The plain error cases continue to ‘turn on their particular facts.’ ”).

2002However, in People v. Wilson, supra, the supreme court emphasized that McClure was not a per se rule requiring automatic reversal, and it disapproved a narrower interpretation of McClure by a panel of this court.

1990Per Se Constitutional Challenge A. Cruel and Unusual Punishment Under the State Constitution The defendant concedes that a per se challenge to capital punishment was rejected by the United States Supreme Court in Gregg v. Georgia, 428 U.S. 153 , 96 S.Ct. 2909 , 49 L.Ed.2d 859 (1976), but urges us to find that under Article II, Section 20 of the state constitution, which forbids the infliction of "cruel and unusual punishments," the imposition of the death penalty is prohibited.

1990Per Se Constitutional Challenge A. Cruel and Unusual Punishment Under the State Constitution The defendant concedes that a per se challenge to capital punishment was rejected by the United States Supreme Court in Gregg v. Georgia, 428 U.S. 153 , 96 S.Ct. 2909 , 49 L.Ed.2d 859 (1976), but urges us to find that under Article II, Section 20 of the state constitution, which forbids the infliction of "cruel and unusual punishments," the imposition of the death penalty is prohibited.

1989Id. at 66 , 100 S.Ct. at 2539 (footnote omitted). *1256 The United States Supreme Court has applied the Roberts two-part test on a case-by-case basis and not as a per se rule. 5 In Lee v. Illinois, 476 U.S. 530, 539 , 106 S.Ct. 2056, 2061 , 90 L.Ed.2d 514 (1986), the Court held that the state’s use of a co-defendant’s confession against the defendant violated the defendant’s confrontation clause rights because the confession did not bear sufficient independent “indicia of reliability” to overcome its presumptive unreliability.

1989Id. at 66 , 100 S.Ct. at 2539 (footnote omitted). *1256 The United States Supreme Court has applied the Roberts two-part test on a case-by-case basis and not as a per se rule. 5 In Lee v. Illinois, 476 U.S. 530, 539 , 106 S.Ct. 2056, 2061 , 90 L.Ed.2d 514 (1986), the Court held that the state’s use of a co-defendant’s confession against the defendant violated the defendant’s confrontation clause rights because the confession did not bear sufficient independent “indicia of reliability” to overcome its presumptive unreliability.

1983We observed in People v. Heintze, 200 Colo. 248 , ___, 614 P.2d 367, 371 (1980), that the purpose of Rule 5 is "to furnish a prophylaxis against abuses in the detention process and, more importantly, to place the accused in early contact with a judicial officer so that the right to counsel may not only be clearly explained but also be implemented upon the accused's request." We have consistently *1071 declined to adopt a per se rule of exclusion for Rule 5 violations, but instead have required the defendant to show that the delay was unnecessary and that some prejudice resulted therefrom.

1983We observed in People v. Heintze, 200 Colo. 248 , ___, 614 P.2d 367, 371 (1980), that the purpose of Rule 5 is "to furnish a prophylaxis against abuses in the detention process and, more importantly, to place the accused in early contact with a judicial officer so that the right to counsel may not only be clearly explained but also be implemented upon the accused's request." We have consistently *1071 declined to adopt a per se rule of exclusion for Rule 5 violations, but instead have required the defendant to show that the delay was unnecessary and that some prejudice resulted therefrom.

2025And “[a]n easement, regardless of the manner of its creation, does not carry any title to the land over which it is exercised, nor does it serve to dispossess the landowner.” Lazy Dog Ranch v. Telluray Ranch Corp., 965 P.2d 1229, 1234 (Colo. 1998).5 The McCallums have the right to use the easement, but the Deweys own the property over which the easement runs.

2025See § 42- 1-102(18), C.R.S. 2024 (“[O]wners or occupants of abutting lands and other persons have no legal right of access to or from the [highway, street, or roadway] except at such points only and in such manner as may be determined by the public authority having 16 jurisdiction over such highway, street, or roadway.”); State Dep’t of Highways v. Interstate-Denver W., 791 P.2d 1119, 1121 (Colo. 1990) (declining to adopt a per se rule that substantial interference occurs and compensation is required whenever a landowner loses a particular highway access point).

2022See Lucero , 196 Colo. at 284 , 584 P.2d at 1214 ; see also Razatos , 699 P.2d at 977 ("[T]he possibility of imprisonment arising out of contempt proceedings, whether civil or criminal, has been held to trigger the Sixth Amendment right[ ] to counsel."); see also In re Bauer , 30 P.3d 185, 188 (Colo. 2001) (noting that the Sixth Amendment right to counsel afforded to criminal defendants extends to contempt proceedings, both civil and criminal, which may result in imprisonment of the contemnor). ¶ 32 And the same reasoning has been employed in other cases before this court.

2022See Lucero , 196 Colo. at 284 , 584 P.2d at 1214 ; see also Razatos , 699 P.2d at 977 ("[T]he possibility of imprisonment arising out of contempt proceedings, whether civil or criminal, has been held to trigger the Sixth Amendment right[ ] to counsel."); see also In re Bauer , 30 P.3d 185, 188 (Colo. 2001) (noting that the Sixth Amendment right to counsel afforded to criminal defendants extends to contempt proceedings, both civil and criminal, which may result in imprisonment of the contemnor). ¶ 32 And the same reasoning has been employed in other cases before this court.

2022See Lucero , 196 Colo. at 284 , 584 P.2d at 1214 ; see also Razatos , 699 P.2d at 977 ("[T]he possibility of imprisonment arising out of contempt proceedings, whether civil or criminal, has been held to trigger the Sixth Amendment right[ ] to counsel."); see also In re Bauer , 30 P.3d 185, 188 (Colo. 2001) (noting that the Sixth Amendment right to counsel afforded to criminal defendants extends to contempt proceedings, both civil and criminal, which may result in imprisonment of the contemnor). ¶ 32 And the same reasoning has been employed in other cases before this court.

2022But see Gagnon v. Scarpelli , 411 U.S. 778, 781, 788 , 93 S.Ct. 1756 , 36 L.Ed.2d 656 (1973) (refusing to extend Gideon and Argersinger to establish a per se rule for appointment of counsel in all civil proceedings where the possibility of imprisonment exists); In re Calhoun , 47 Ohio St.2d 15 , 350 N.E.2d 665, 666 (Ohio 1976) (Sixth Amendment right to counsel as set forth in Argersinger is inapplicable to civil contempt because that right is limited to criminal proceedings). ¶ 31 The supreme court then articulated the principle that the Sixth Amendment secures to indigent people the right to

2022But see Gagnon v. Scarpelli , 411 U.S. 778, 781, 788 , 93 S.Ct. 1756 , 36 L.Ed.2d 656 (1973) (refusing to extend Gideon and Argersinger to establish a per se rule for appointment of counsel in all civil proceedings where the possibility of imprisonment exists); In re Calhoun , 47 Ohio St.2d 15 , 350 N.E.2d 665, 666 (Ohio 1976) (Sixth Amendment right to counsel as set forth in Argersinger is inapplicable to civil contempt because that right is limited to criminal proceedings). ¶ 31 The supreme court then articulated the principle that the Sixth Amendment secures to indigent people the right to

2022See Lucero , 196 Colo. at 284 , 584 P.2d at 1214 ; see also Razatos , 699 P.2d at 977 ("[T]he possibility of imprisonment arising out of contempt proceedings, whether civil or criminal, has been held to trigger the Sixth Amendment right[ ] to counsel."); see also In re Bauer , 30 P.3d 185, 188 (Colo. 2001) (noting that the Sixth Amendment right to counsel afforded to criminal defendants extends to contempt proceedings, both civil and criminal, which may result in imprisonment of the contemnor). ¶ 32 And the same reasoning has been employed in other cases before this court.