*1 526 state, sufficient the forum
feet within the defendant
nexus exists between satisfy process.
the state so as due See v.
also Brainerd Univ. Governors of Cir.1989); (9th Alberta, 873 F.2d of Ne- Regents
Burt v. Board
Univ.
of
of
of
(10th Cir.1985);
braska,
Invs. v. Metzeler
Cir.1985);
Inc.,
(5th
Gregg, Sys., Energy v.
Stuart Federal (D.Vt.1984);
F.Supp. 458 Jenner & Block Colo. 590 P.2d
v. District opinion points As the Calder
out, reasonably defendant should antic- being
ipate haled into court answer intentionally
his tortious actions. analysis Court’s
Consistent with the
Calder, we it not offend conclude that does play justice of
notions fair and substantial petitioners against require defend
this lawsuit in Colorado. We therefore personal juris- trial
hold that the court had petitioners acts
diction over based those
allegedly taken them which were intend- injury
ed to cause in Colorado. judgment appeals
affirmed and the case is remanded to that to remand to
court with directions consistent opinion. JONES, Petitioner,
Stephen C. In and
The DISTRICT COURT For DISTRICT, JUDICIAL State
SECOND Colorado, Lynne and the Honorable thereof, Hufnagel, judges
M. one of
Respondents.
No. 89SA94. Colorado,
Supreme Court of
En Banc.
Oct. 1989.
bers, hearings jury’s and other outside requiring order presence; and for an contemporaneously counsel be allowed to objec- grounds for objections, make to state tions, propose proper sanctions and violations, is- respondent arguments The heard and rulings, granting part, the motion in sued parts of denying part.1 it in Pertinent and transcripts hearings from conduct- two part of ed on this motion are included as Vela, Defender, David F. State Public opinion. Appendix. grava- See Brake, Deputy Terri L. Chief Public and petitioner’s complaint men of is that he has Defender, Denver, for petitioner. right to have the contents of substantive Jr., Early, Atty., and Norman S. Dist. contemporane- bench conferences recorded Coats, Appellate Deputy Nathan B. Chief reporter. respon- ously by the court Denver, respondents. Atty., Dist. dispute parties have dent does right objections, to make and to state delivered the Justice ERICKSON However, objections. for those Opinion of the Court. proximity jury box to the bench original proceeding seeking This is an that, probable jury unless the was makes it prohi- in the nature of mandamus or relief courtroom, removed from the petitioner, bition under C.A.R. 21. The Ste- directly held would overhear conferences Jones, phen charged with second-de- C. objection front of the The same bench. pending gree burglary a criminal case conference, apply does not to a “side-bar” (district respondent district court bench, at the side of the such a confer- but trial, court). petitioner Before filed mo- require reporter to ence would the court seeking respondent have the tion to the side of the with the move (1) (respondent): the court re- direct Therefore, attorneys judge. the re- and, proceedings, porter to record all trial spondent she had the discretion ruled that conferences; (2) particular, all bench court with to conduct conferences contemporane- permit parties to make a record, parties subject off objections and the ous record making of a record at some more conve- objections. Respondent For reasons set nient time in the future. part. the motion in and denied it opinion, conclude ab- forth in this we cause and now We issued a rule to show parties, sent the consent of the Colorado the rule absolute. make re- requires proceedings that trial law re- contemporaneously corded I. porter. trial, appointed petitioner’s Prior to his II. counsel, attorney from the State Public matter, Office, As threshold we must styled, motion filed a Defender’s respondent’s review of Bench Conferences decide whether “Motion for Recorded confer Record,” of the motion to record bench Contemporaneous to obtain denial contemporaneous record ences make a requiring “an order original proceeding. including appropriate for an proceedings, of all trial of the Colorado conferences, 3 of article VI in cham- Section all bench conferences 1; 28, 1989, respon- ary before Attorneys Of- for the State Public Defender’s same, same, involving defendants. substantially additional criminal dent However, fice filed respondent, prose- petitioner, pending a number of criminal cases motion in rulings arguments agreed at that the respondent cution and other district before the petitioner’s hearings apply would hearings, arguments, at those two judges. burglary pending case. February 7 and Febru- own issue occurred on here judicial proposition records authority to hear gives us the
Constitution
necessary
indispensable
but
only
pro-
original
merits of
and determine the
justice. The court
administration
original juris-
ceedings,2
the exercise
upon its
arguments
hears
and decides
discretionary.
v. Dis-
diction
McConnell
records;
open-
records;
by its
its
it acts
(Colo.1984).
P.2d
trict
ings,
adjournments can be
sessions and
proceeding may not
original
An
be used as
records;
judgments
proved only by its
its
appeal.
v. Dis-
a substitute for an
Varner
*3
only
records.
can be evidenced
its
1388,
Court,
(Colo.
trict
618 P.2d
1390
known
The acts of a court of record are
1980).
by its
alone and
be estab-
records
cannot
However,
exer-
we have not hesitated to
by parol
The court
testimony.
lished
original
where
other-
jurisdiction
cise
an
records,
speaks only through its
and the
ruling may
sig-
interlocutory
have a
wise
judge speaks only through
court.
the
impact
party’s ability
liti-
nificant
on a
to
in
procedure
The statutes on criminal
Id.;
gate
controversy.
the
of a
merits
provide
proceed-
county
court
such
1314,
v.
624
District
P.2d
Sanchez
ings
the same as in the district
to be
(Colo.1981). Original proceedings
1316
point up
court.
Decisions
court
of
appropriate
judge pro-
a trial
were
when
reporter’s transcript
necessity
aof
in
of a rule of civil
ceeded
clear violation
required
where this court is
to review
Varner,
P.2d
procedure.
618
1390.
at.
judgments
propriety
a trial
of
of
However,
here,
significance
of more
is, therefore,
a
apparent
court.
It
that
contemporaneously
failure
record
reporter plays a vital role in criminal
interfere
proceedings may also
with our
trials.
jurisdiction.
appellate
Accordingly, we
445,
(emphasis
Id. at
It has
that the
for the
contrary,
been said
reason
court or su-
district
shall,
perior
of
on'
court
creation
courts of record founded
court
Const,
VI,
provides,
jurisdiction
of
or where
district court
§
2.Colo.
art.
in relevant
its
part:
change
denied
venue in
of
actions in rem or in actions where the statute
power
supreme
court shall have
to issue
prescribes the forum.
mandamus,
corpus,
quo
writs of
ranto, certiorari,
war-
habeas
injunction, and such other
courts,
courts,
County
district
courts
3.
like
are
original
provid-
writs as
be
and remedial
ll(l)(c),
of
C.R.S.
§
record.
13-1-1
6A
authority
ed
rule of court with
to hear and
same;
judge
determine
supreme
and each
of the
original pro-
4. While
case out of which this
power
like
au-
court shall have
criminal,
55(e) pro-
ceeding
Crim.P.
arose
thority
corpus.
as to writs of habeas
practice
procedure
states,
con-
21(a)
vides that
pertinent part:
"[t]he
C.A.R.
cerning reporter’s notes and
or me-
prohibition may
electronic
Relief
the nature of
recordings
prescribed
shall be
sought
Supreme
chanical
Court where the dis-
courts_”
C.R.C.P.,
proceeding
Rule
for district
trict court is
without or in excess
Recording
proceed
all trial
Id.
in its discretion
at 551.
or referee or master
may,
necessarily implies
direct that evidence be taken steno-
that the
ings
appoint
reporter
graphically and
contemporaneously,
done
otherwise
purpose.
proceedings
left unrecorded. We
some
agree
respondent
do not
with the
added.)
statutes,
(Emphasis
These
at a later time
reconstruction
record
rules,
duty
create an affirmative
court
contempora
adequate
for a
substitute
report
part
and court
out,
points
As
petitioner
neous record.
that all
of a
er to ensure
fallible,
recorded,
memory is
under
parties
especially
otherwisehuman
trial are
unless the
Owers,
trial,
Keady
In
con sent.5
the stress
and it will sometimes be
(1902),
recreate,
P. 509
held that a
impossible
adequately
Colo.
we
provide
reporter
duty
had a
involved,
court
sworn
of all
parties
satisfaction
party re
transcript
of the record to a
exactly
what
occurred at some earlier time.
it,.and
order of
questing
stated that “[t]he
This is the reason for the creation of the
judge of the court
furnish it is no
not to
reporter
place,
position of
the first
*4
7,
Id. at
justification
or
excuse
whatever.”
corresponding
impor
and the
decline in the
al appellate jurisdiction, a district court judges For this trial tial manner. reason criminal not conduct judge bench in a case should not conduct off-the-record off or side-bar conferences conferences. (1982) 40-14-307(a) pro- § Justice Ann. also I ABAStandards for Criminal 6. Tenn.Code 5. See designated reporter (2d shall attend 1980), vides that "[a] 6-1.6 ed. which states that Standard stage every each case before the of criminal judge duty see that trial to "[t]he reporter proceed- shall record ... all court and ings verbatim true, complete, accurate makes a proceed- court and such had proceedings.” all record of judge may ings as the direct.” record, directed to conduct parties request so or so and the district unless proceedings consistent with consent.7 opinion. duty of We are unmindful of judge to conduct the VOLLACK, J., dissents. manner, orderly in an and the concomitant power to control occurs the court what APPENDIX proper balance room. We believe that argu- following is an extract 6-2.4, is struck I ABA Stan Standard ruling February ments (2d 1980), dards for Criminal ed. Justice hearing respondent: before the provides: which guess your THE COURT: I Motion ... judge respect The trial should obli- part denied in gation objections to present of counsel to going I am not to excuse admissibility procedures and to of evi- every approach time counsel asks to dence, motions, request rulings bench, I it is because don’t know whether proof, make offers of and to have the or, going to “I “let’s take a break” reflect record show adverse am out of witnesses” or what it is. And judge conduct of the counsel con- interrupt don't want the trial for that prejudicial. siders should Counsel thing. If kind of it is a motion or an permitted succinctly state parties party issue that the feels —either objections his or or re- her needs to have a record quests; but the should neverthe- made, I am happy then to do that at the length control and manner less *5 request of either side— argument. petitioner]: BRAKE All MS. [for added.) Thus, allowing (Emphasis after right. contemporaneous objec- to make a counsel THE COURT: —if it seems to me that
tion, to state for that something contempora- it is that needs a objection, judge may, in the exer- example, neous record made. For if we discretion, of sound off further cise cut get need to advise a witness not to into a argument. permit fur- Whether or not to something certain area or on that or- argument ther at a later time is also within why hypothetical der—that don’t judge’s discretion. here, make sense I don’t because IY. coming. what is Motion is not know every single in the sense that summary, respon In we hold that going bench conference is to result petitioner pros allow the dent must jury being put jury in the room and contemporaneous objec ecution to make happens being whatever at the bench on rulings, tions to evidence and the court’s the record. It is denied insofar as that is succinctly and also to state concerned. addition, In objections. we hold that all proceedings in record court must be issue, If particular, respondent legal In holds BRAKE: not
ed. MS. it is a trial, during something or break inciden- side-bar conferences a bathroom or Accordingly, litigated, on the needs to be and counsel they must be record.8 tal that absolute, out-of-pres- rule to show is made wishes to have a recorded cause hold, however, affirmatively respondent do failure to 7. We not that not show that always refused, refuse, proceedings going record all trial will result put or is conferences Any may record, reversible error. such claim of error on the because the in chambers be under the facts not harmless error issue, petitioner has not this we decline briefed particular circumstances in case. Crim.P. out, however, point to reach it. We 52(a). require the same considerations that apply to conferences of bench conferences also petitioner’s 8. The motion also asked that chambers. conferences attended and recorded chamber reporter. record does Since the right. accept All BRAKE:
MS. course, let me ruling, of Court’s conference, whether it jury ence-of-the My for our record. sure it is clear make bar, side reporter going to by the that, one, feel is that we objection to whatever, phys- being removed— effective assistance in order to render takes, option the Court ically, whatever counsel, impossible in some virtually it is request grant the going is the Court trials to remem- trials and difficult all legal proceed- proceedings, those to have exactly has said off ber what been recorded, judgment ings, without it, will not record record when Court recorded it should be the Court whether repeat purposes that later for and to for, asking are or not? That is what we very making a later record. It is diffi- record- Judge, the whole trial is is that every- ongoing in an trial to recall cult cases is to be ed—under these rules and happened past, thing that’s talking are not about recorded. Not—we why contemporane- that is one reason hears a the situation where the Court absolutely necessary. ous record is mistrial, example ex- motion —an Secondly, are situations where there hears two ample the Court used—and concerned the Court—I’m about succinctly state sentences allowing opportunity not a full Court or cut grounds, decides to defer and then grounds contemporaneously, state the argument on the same off necessarily and that is for talking record, those grounds. I am not about appellate court but for for the talking can hear all the I am about so the Court circumstances. Court proposed alternative grounds, re- all require the the Court will whether problem ongoing an and rule remedies to legal proceedings cording of all of the Those that before the trial continues. they going actually held as that are developing problems I see are real on, saying having an at-the- instead — , ruling, object do and we with the Court’s objection— bench conference where trying to use discretion to the Court objection, of Rule “Judge, violation part of the court whether something that I ha- somebody just said down, taken should or should record; heard,” that is not on the ven’t inadequate. do feel that that we later,” proceed- then “We will hear it *6 right. All THE COURT: pro- are the ing with the trial. Those hearing subsequent on the motion At the to, objecting and I ceedings that arewe respondent re- February on know, is guess, I the Court need to ruling: previous her affirmed going report to that or saying you are position, as It is our BRAKE: ... MS. not. Brief, any manner in the explained your I can’t answer THE COURT: case, relating we—is of substance hypothetical. all question because it is course, to be recorded and required, of hypothetical, BRAKE: It is not MS. mat- requesting are substantive that we Judge. ap- If we ask to recorded. ters to be saying I am is THE What COURT: need a proach because we the bench the discretion of I it is within that believe break, matter of that is not a bathroom contemporaneous asking whether a Court would not be and we substance made, recorded, an- it is hard to I record is and and think that that be evidentiary ob- that as officers example, if an can assume swer—for the Court Court, that— grounds is and a minimal jection is made can’t, rule, Oh, I then I I Ms. and stated in THE COURT: contempo- point doing Brake. see don’t record is for finished Judge, record because the I haven’t
raneous
BRAKE:
MS.
you’re
not for
I don’t know what
purposes
appellate
my
of the
sentence.
saying
you
Are
we’re
willing
If I have
to assume.
me,
ruled.
have
because
of the Court?
not officers
mistake,
it.
appeal
made a
hearing prior
trial
requests
opportunity
in this case to have
date
saying
I’m
this
THE COURT: No.
argument
authority
present additional
is
argument is over. The motion
issues,
attempt
in an
court on
to this
these
part,
last
denied
as it was
necessity
to resolve
matter without
time.
appeal.
of an
currently preparing
4.Counsel
support
will
of this motion [which
brief
FOR
BENCH
MOTION
RECORDED
filed
so that this court can review
be
soon]
AND
CONFERENCES
prior to the hear-
additional authorities
CONTEMPORANEOUS RECORD
ing.
Court, City
County of
District
F. VELA
DAVID
Denver, Colorado
State Public
Colorado
Defender
People
The
of the
of Colorado
State
(s) Terri L. Brake
Plaintiff
L. BRAKE
TERRI
No.
Deputy
Chief
Public De-
Defendant
fender
requests
The defendant
this case
dissenting:
Justice VOLLACK
contempo-
requiring
for an order
majority
concludes
absent the
proceedings,
raneous
all trial
parties,
of the
law
consent
Colorado
re-
conferences,
including
confer-
all bench
quires
that trial
be recorded
chambers,
hearings
out-
ences
and other
reporter.
contemporaneously by the court
presence;
order
jury’s
and for an
side
majority’s opinion
upon a
is based
mo-
requiring that counsel
allowed to con-
(see
A)
previous
Appendix
alleging
vio-
tion
make
to state
temporaneously
objections,
21(a)
by the court and a C.A.R.
lations
objections,
propose
alleging
rulings will
petition
that similar
violations,
following
sanctions
on the
has
in a case in
not
made
grounds:
commenced.
previously
1. This court
ruled
petition
I dissent because the motion
re-
other cases that
speculation
on
are based
cording
of bench conferences and
future,
judge
enter in the
and are
presence
hearings outside
alleged rulings
of the trial
based
required,
discretionary
but is
past
appealed
in the
were
ruling by
wrong,
This
court is
court.
appeal.
opin-
that an
pending on
I believe
case-
contrary to
Colorado statute
premature.
Stephen
in the
case is
ion
Jones
Further, an
the law of
law.
examination of
21(a)
petition for
relief under C.A.R.
*7
jurisdictions on
corrob-
other
this issue
facts,
hypothetical
making
our
based
ruling
in the
of this
prior
the error
orates
opinion advisory
Tippett
in nature.
v.
court.
(Colo.1987);
Johnson,
533 reviewing rulings requires the dealing in this case appeal. We are the trial Motion, willing speculate Mr. as to whether and I am to trust Callum, not abuse its discre- respected member of the court would or would 830, Courtroom, Cole, P.2d 832 People to indicate if he bar tion. See v. something absolutely (Colo.1982)(trial needs to discre- thinks courts have broad made, contemporaneous pre- record controlling have a extent of tion in mode and evidence, and I will do that. clear sentation of and absent shall of discretion thereon abuse granting the defen- review). petition- not be disturbed on part denying dant’s motion it prior hypothetical at er’s motion to trial is request, properly acknowledged upon valid, provides best reviewable it would make a record of judgment record to render a as to whether judge, conferences.1 The trial in de- trial court abused its discretion. part hypothetical portion nying discharge improvidently would the rule as motion, reserved to the court its discre- granted. tion in the conduct of the trial. Standard 6-2.41, ABA Jus- Standards Criminal (2d 1980). ed. tice majority agrees page at 530 of its holding applying 6-
opinion, Standard
2.41, judge may, “the trial in the exercise of discretion, argument.
sound cut off further argument permit or not to
Whether
a later time
at
is also within
The MOUNTAIN STATES TELEPHONE
judge’s discretion.”
COMPANY,
AND
TELEGRAPH
Col
Stauffer,
corporation,
my opinion
ruling by
In
the absence
orado
Kent J.
objection
the trial court on a current
Public Administrator
for El Paso
DiFede,
County,
proof by
during
trial ren-
and Anne
offer
counsel
Petition
Cross-Respondents,
opinion advisory.
ders the
Iron Arrow
ers/
67, 70,
Heckler,
v.
Soc’y
Honor
U.S.
v.
373, 374,
(1983)(to
104 S.Ct.
tions
Cir.1984)); Ener- Metzenbaum Federal Comm’n,
gy Regulatory 675 F.2d (D.C.Cir.1982) (dismissal for lack of nothing in
ripeness appropriate where suffered appellants
record shows that have *8 far, injury and the law’s future thus wholly speculative). The
effect remains reflecting trial court
lack of a trial record objections it sustains. majority opinion raneous records concludes if coun- 1. The contempo- requests, must make sel so