*1 appeals of was in error when it held say the court the court trial cannot We by admitting the testi discretion otherwise. abused its mony McCarthy on issues of causa of Dr. edu had an extensive
tion. This witness IV. including degrees background, three cational de and doctoral psychology, master’s properly di- hold that the trial court study neuropsychology further grees, and liability in on the of rected verdict issue experienced neu- understudy with including also that the trial court this case. We hold ropsyehologists. The tests administered by admitting the did not abuse its discretion extensive, part a stan of Huntoon were testimony neuropsychologist. Accord- of battery re the most dardized described ingly, judgment we the court reverse widely in the neu- spected documented case di- appeals and remand this Moreover, Dr. ropsychology profession. judg- to reinstate the trial court’s rections prepared a far- McCarthy testified that he jury’s damages. award of ment history to use background and case reaching analysis the test backdrop for his results. explanation McCarthy gave
Dr. an testing re-
way in neuropsychological which injurious impact of an event on
veals the day ability carry every out
individual’s
activities, neuropsy- which and manner chologists and other clinical use tests Colorado, The PEOPLE of State injury diagnose brain as manifested data Plaintiff-Appellant, back- by cognitive impairment. Given this legiti- ground, think a trial court could we mately McCarthy had conclude that Dr. experience knowledge demonstrated Courtney LEGLER, Defendant-Appellee. expert as a
necessary opinion render an that he not ex- neuropsychologist, and did No. 98SA280. addressing expertise by scope ceed the his Colorado, Supreme Court of issues of causation. En Banc. no pre-accident there had been argues TCI testing against which to establish a baseline Nov. neurop- results on the compare Huntoon’s complains sychological battery. TCI also history Hun- personal obtained from
toon, McCarthy, upon by Dr. did and relied prior accident and other
not disclose a auto have been
background information matters, Such
relevant to her condition.
however, do not render the statements inadmissible, go but instead
witness
weight, any, jury might attribute Klein, testimony. P.2d at 50.
Indeed, properly brought and oth- TCI these affecting weight of Dr. McCar- points
er jury testimony
thy’s to the attention of
by way of cross-examination. by the trial
Finding discretion no abuse of
court, testimony Dr. we conclude that jury, and
McCarthy properly before *2 Jr., Dominguez,
A.M. Attorney, District District, Quammen, 19th Judicial Thomas As- Attorney, Greeley, sistant District for Plain- tiff-Appellant. Miller, house, P.C., gler grandmother’s ran from her Linda Miller S.
Linda S. Collins, leaving daughter Upon Blau, her infant behind. George L. Fort Defendant- County locating Legler, Boulder Social Ser- Appellee. Jennings’ attempted to return vices house; however, Opinion it clear that RICE delivered the made Justice *3 Legler to return. As a was not welcome Court. result, Legler placed Broadway at the was interlocutory appeal pursuant to In this spending in After Youth Shelter Boulder. 4.1, People of the seek reversal C.A.R. the shelter, Legler week at ran one the of made suppression court’s statements trial again. Legler on the run when was she was during the course of by juvenile a defendant arrested in with the instant connection interrogation, suppression of a custodial charge. The trial court derived therefrom. evidence (1) Legler’s interrogation, Greeley Prior to grandmother, juvenile’s the held: police investigating the murder interrogation, did not officers present at the who was Jennings. them that' a spoke with She told qualify a custodian” (1998); Legler’s Legler 19-2-511(1), of informed her that friend 6 C.R.S. of section Acting in (2) been involved a on hostility legal the had murder. the between inter- information, tip this as well as on other grand- of and those her ests Legler early morning police arrested in the incompe- grandmother mother rendered 4, Upon learning of 1997. waiving in her hours November tent assist to arrest, people of her numerous unsuccessful- under 19-2- constitutional 511(1). Legler’s ly attempted to invoke constitution- affirm. Di- rights prior interrogation. to her The
al County Department rector of the Boulder of I. police notified the that Le- Social Services 4, 1997, Greeley police a On November gler to without an at- not be interviewed was Courtney interrogated Legler, who officer and, further, torney Jennings present old, years in then sixteen connection was authority any to of Le- did not have waive present a Also robbery with and murder. Similarly, guardian gler’s rights. Legler’s Legler’s interrogation were the custodial police to litem1 sent a letter via ad Jennings, step- and her grandmother, Bonnie Legler which stated that was to facsimile interroga- At time grandfather. attorney present. an interviewed without be tion, County Department So- the Boulder police receipt guardian were in legal Legler’s custodian. cial Services commencing the in- ad litem’s letter before August custodianship This arose out of an public terrogation. Finally, County a Weld neglect determination. dependency defender, guardian ad litem’s acting at the adjudication, Legler Following resided be- request, arrived before County juvenile group in homes for Boulder Legler.2 gan. He was denied access to However, years. after several Meanwhile, 1996, Mrs. pregnant in Mr. and that she was learned police request station at the approved her came Department of Social Services arresting They taken paid provider. officer. were then grandmother a foster care Legler. in June into the interview room capacity served this from 1997, opportunity to during give Legler an through August police which time did not 1997, 21, grandmother privately be- her Legler gave August Le- consult with birth. On provides: a further 6 C.R.S. defines 1. Section "guardian ad litem" as follows: representing public counsel [I]f defender or person appointed by a court to act in best [A] interrogation, present such is person appointed person interests of whom the or be admissible statements admissions representing proceedings this under title parent, though juvenile’s evidence even who, represent person appointed and dependency was not guardian, or custodian neglect proceeding under article present. title, attorney-at-law licensed 3 of this shall be an practice in Colorado. asking Legler fore purpose waive constitutional tion. The requirement latter However, rights. presence provide in the of her was necessary “additional grandmother, Legler un- juvenile’s did state that she assurance that Fifth Amend- rights.3 right against derstood her constitutional In her ment ... will self-incrimination subsequent police, Legler fully Saiz, statement afforded him.” v. People 15, having (Colo.1980); played confessed to role in the 620 P.2d 19-20 also see Peo- Maes, 235, key ple crime and revealed the pieces location v. 194 Colo. (1977); She People evidence. was bound over trial on McAnally, 192 Colo. degree
first murder charged (1976); and was as an 1102-03 Catherine Richardson, adult. P. and the Juvenile Confessions (1982).4 Offender, 11 Colo. Law. 18, 1998, May granted On the trial court Legler’s suppress motion to her statements *4 end, legislature To this enumerat any evidence derived therefrom. This categories may ed certain of adults who fulfill appeal followed. juvenile. this of role advisor for the These statute, categories,
II.
as set forth in the
are
“parent, guardian,
legal
physical
or
or
custo
19-2-511(1) provides:
19-2-511(1).
§
addition,
dian.”
In
it is im
No
juvenile
statements or
of a
admissions
plicit
legislative purpose
in the
19-
section
...
against
shall be
in
admissible
evidence
2-511(1) that a child
in
involved
the commis
juvenile
parent, guardian,
unless a
or
protec
sion of
offense should be afforded
legal
physical
or
custodian of the
counseling concerning
tive
legal
his or her
present
at such
rights from one whose interests are not ad
guardian,
and his or
parent,
her
or
child,
verse to those of the
to the end that
legal
physical
custodian were advised of
any
statement
given
made
the child be
juvenile’s
rights].
[constitutional
voluntarily, knowingly, and intelligently. See
19-2-511(1)
legislature
The
enacted section
Colo,
15,
McAnally, 192
554 P.2d
1102-
First,
to
purpose.
serve a twofold
it codified 03.
in
holding
the seminal case of In re
Gault,
1, 55,
1428,
Therefore,
387 U.S.
87 S.Ct.
18
the issue before us is whether
(1967),
L.Ed.2d 527
pro-
Jennings’ presence
which extended the
at the interrogation satis-
Arizona,
436,
19-2-511(1).
tections of Miranda v.
384
requirements
U.S.
fied the
of section
1602,
86
(1966),
S.Ct.
Anally,
Several events on the of the inter- rogation served additional notice of the relationship
hostile Jennings between and C. Legler. Jennings told that When was on her station, way declared, Legler Finally, argue People “It’s a that even miracle, they response, hate me.” In if Jennings qualify “physical fails to as a police noted, Legler 19-2-511(1), officer who had pursuant arrested custodian” to section Next, Legler’s incorrectly “That’s what understand.” sup- letter statements were room, Jennings serving parent had Legler leaving been as a foster and were tire Legler’s daughter, Legler Jennings give infant S.L. up At the end of told she "needed again interrogation, Jennings expressed once [to child] [she not] her because would be Legler’s long desire raise able child. As to be a mother for a time.”
697 test, I would conclude that Bonnie section of that Jennings satisfies pressed because (1998). Courtney grandmother, Jennings, Legler’s 6 C.R.S. fits custodi- within definition 19-2-511(3) allows admission of Section an” and should not lose that status because juvenile was juvenile’s “if the statements juvenile, Courtney Legler, ran from adult by responsible who was accompanied Second, “objectively hostile” their home. assuming the or a custodian majority’s standard of the second consider- find parent at the time.” We this role of ation, maj. op. purpose fulfills see argument to without merit. 19—1— of the statute as elucidated a “custodian” defines 19-2-102, 102(d), 6 and section C.R.S. shelter, providing “person as a who has been 6 C.R.S food, clothing, other care for a child in and would, parent whether fashion as same I. by order of court.” The facts or not not been ease demonstrate that had A. shelter, food, clothing, care for providing give It well settled that courts should fact, Legler at the time of her arrest. Assembly to the intent of the General effect nor from Jennings had neither heard seen meaning impute their own should months, and Legler in over she refused two statutory language. Peo clear See otherwise to her As to return home. allow White, (Colo.), cert. ple v. 445 such, Jennings acting was not same denied, 115 S.Ct. U.S. act, contemplat- parent fashion as would Schuett, (1994); People L.Ed.2d 71 v. ed the statute. (Colo.1992). legisla P.2d To discern Accordingly, the trial court’s we affirm intent, a tive court should look first evidence suppressing statements and order Warner, statutory language, People see proceedings case for further return the (Colo.1990), give P.2d opinion. with this consistent phrases full statutory their effect words ordinary mean according plain to their SCOTT, J., concurs. Court, People ing. v. District concurring in SCOTT Justice (Colo.1986). 918, 921 judgment: firmly It this court has been established *7 agree I the considerations” or with “two interpreting when statutes to meet the that majority determining by test forth the for set give Assembly, we must intent of the General guardian’s presence or custodian’s whether of meaningful to the whole the statute. effect require- satisfied the Examin Bd. Medical See Colorado State of (1998): 19-2-511(1), 6 of section C.R.S. ments (Colo.1992) Saddoris, 39, 42 ers v. First, in with- fit[s] fact [the adult] “whether (statutes must construed as a whole to be categories the of adults specified in one of consistent, ef give and sensible harmonious coun- the to advise and authorized statute parts); City Lakewood v. fect to all their Second, sel”; catego- if one of the and within (Colo.1991) Mavromatis, (pri P.2d 96 817 ries, were adult’s] interests [the “whether meaning mary goal determining in of statute sufficiently objectively not aligned with” and give to and effect to intent is ascertain Maj. I juvenile’s. op. the at 695. hostile to Kimata, legislature); P.2d Charlton 815 agree questioned if adult further that the (if (Colo.1991) supreme possible, 949 then, tests, parent, guardian, meets both the every give to word of stat court must effect ability perform has the custodian ute). Thus, rights interpreting the when contemplated by the purposes in a manner comprehen juveniles our courts under before hence, and, statements the Code Children’s Code, legislation as the Children’s sive juvenile admitted notwith- meaning provi obliged give to all we are prohibitions standing the in section 19-2-511. to further the in an effort sions of code legislative the however, represented public policy to make separately, I clear write Press, Inc. v. First, A.B. prong scheme. See things. two that under first Hirschfeld (Colo.1991). Denver, becoming responsible productive P.2d If in and society. upon elsewhere in laws touch member statutes our subject but potentially the same are conflict 19-1-102, (1998). § C.R.S. statutes, ing, courts should reconcile Legislative general declaration. The as- possible, ensure a and consistent sensible hereby sembly intent finds that the of this application of the In re law. See Estate of protect improve public article is to Snelson, (Colo. David v. juvenile safety by creating system of 1989). justice ju- will appropriately sanction By giving comprehen- deferential effect to general violate veniles who the law. adopted by sive statutes our General Assem- assembly that, holding further finds while bly, recognize legislators, courts juvenile paramount public safety, judges, uniquely are authorized to choose justice system shall take into consideration general application between alternatives of provid- in best interests of the and, consequence, as a determine matters of ing appropriate treatment to reduce the public policy. regard This is true with juvenile justice rate in of recidivism the procedures as to use of state- system to assist in becom- juveniles proceedings ments of before our ing productive society. member of Hence, recognize courts. we should a holis- 19-2-102, § 6 C.R.S. beyond approach, tic solely criminal law or considerations, penal for the admission of B. juveniles statements order effect the (1998) 6 C.R.S. legislative purpose assuring develop- custodian,” “physical states that used children, including ment of our their disci- 19-2-511, guardian, “means a wheth- pline protection. as well as their care order, er appointed by or not court setting legislative forth its intent under whom the has resided.” Code at Children’s sections 19-1-102 and It undisputed lived with 19-2-102, (1998), C.R.S. General As- prior fourteen months sembly regarding evinced its desire questioned interrogation was to have of children: treatment living departure continued there but Legislative general declaration. from the of her a runaway home custodian as assembly declares that the of this only police interrogation. weeks before title are: Thus, plain language defining based on the (a) subject To secure for child each custodian,” I would conclude that provisions guidance, these such care and statutory satisfies definition. home, preferably in his own as will best majority, Like language view the serve welfare his and the interests of soci- plain, straightforward ambiguous. and not ety; maj. op. majority, at 695. Unlike the *8 (b) strengthen preserve family To and ties however, my in view language the statute’s possible, including improvement whenever juvenile “with whom the has resided” indi- environment; home physical cates that a custodian not is “limited (c) custody To remove a child the from to the adult or adults with whom the child parents only his when welfare and his safe- immediately prior resided arrest and ty protection public or the of the would interrogation.” (emphasis custodial Id. add- and, endangered otherwise be in either ed). defining “physical In in custodian” instance, proceed for the courts to with all manner, majority plain the into the reads possible speed to a determination language of the statute additional words and that will serve the interests of best the therefore the alters intent of the General child; and Assembly. enacting In (d) any Assembly to secure for child removed from the General was free define custody parents necessary “physical the of his the majority custodian” as the does care, guidance, discipline today by and the using limiting language assist him it has Henderson, definition, Henderson v. 174 Mont. perhaps cited] or more into the imported (Mont.1977) (finding custodian is P.2d the term by stating physical that a clearly, custody’ having The not ‘physical the resides.” is limited to “with whom one however, actual, child, Assembly, not so possession did define but physical General custodian,” the instead chose relates to involved in the “physical but the custodial child).” language whom the and In re “with care control of See broader C.C.R.S., resided,” which, grammatical Custody its 252-53 has (Colo.1995). There, tense, person the lawful abil- we indicates with held that “since ity custody possession control over the physical to exercise and control” [adults] had and person they standing petition custody. whom the child has had and a for child agree holding in Id. at I that our ever resided. 253. While concerning issues C.C.R.S. addressed hand, majority, interprets on the other adoption juvenile, majority’s I of a find the is, may narrowly what as to the definition view, case, a “physical custodian” be, contrary' penal interests with- to child’s only a set forth in section is taking into all of the interests account out person a child “at the with whom has resided objects represented by our Children’s and interrogation,” maj. op. time of the at (1998). 19-1-102, I § Code. See C.R.S. plain language and our conflict with both the broadly so as to effect read the statute more precedent. attempt Assembly’s ensure the General that the has the benefit Accordingly, adopt I the test an- while 19-2-511, in- pursuant to section custodians majority my today, nounced view the child cluding an adult whose home application here is with the its consistent not effect, recently. away from have run and, a conse- plain of the statute as language result, majority its natural taken to legisla- quence, express does not follow the would adults based on fact exclude Assembly. tive intent of our General person ran from home —a no the child juve- whom longer described as one “with
nile resides.” II. However, majority opinion should ' However, agree with consid- the second in all cases suggesting read is, majority’s test, eration of the that whether adult not a custodian” where the objectively of the custodian are interests at living is not the home of adult child juvenile, join in its hostile those of the maj. interrogation. op. the time of application here. (“It legislative pur- would contradict interpret broadly it
pose this statute to so Assembly that one General declared physical custodianship grant as to continual is “to of the Children’s Code child any adult with whom a has ever any child from the custo- secure removed resided.”). 19-1-103(35), 6 C.R.S. care, dy necessary guid- parents his “person “custodian” as a who defines ance, becoming discipline to assist him in food, shelter, clothing, providing been has soci- responsible productive member of and other care child in same fash- 19-l-102(d), ety.” § Con- C.R.S. added.) parent (Emphasis ion as a would.” reasoning for trary purpose, Jennings’ to this language indicates that a The underscored waiving rights was not Legler’s constitutional responsible for much more than custodian is “care, discipline”; guidance, on based child, housing feeding aof the mere *9 with- instead stated she acted range definition reaches an entire this granddaughter, sympathy out for her by parents in the care rendered indefinable and that granddaughter, did love her she raising a child. course of [Jennings] put away “Legler so she wanted baby].” [Legler’s This intentional Recently, term can raise we construed the wholly I find inconsistent custody” appearing in our conduct or motive elsewhere Chil- intent the Chil- having legislative with the behind to mean “not limited dren’s Code actual, child ... dren’s Code. [and control of the
Therefore, I conclude that there is evi- supports
dence the record which the trial finding
court’s incompe- was Legler, by
tent to contemplated assist Code, thus, Legler
Children’s did not 19-2-511(1).
waive her under section
Accordingly, judgment concur in the majority. Littman, P.C., Littman, David David Wen- Denver, Greenberg,
di Attorneys Colorado for Petitioners. Kelly, Moyson,
Jackson & Peter L. Antho- ny Denver, George, Attorneys Colorado Respondents. PER CURIAM. Rory BECKER, Petitioners,
Twila and petitioners brought original pro- ceeding under seeking C.A.R. 21 relief nature of mandamus to correct an order of DISTRICT IN AND COURT ARAPA FOR by Arapahoe dismissal issued County COUNTY, HOE JUDI EIGHTEENTH (the court”). District Court “trial We issued DISTRICT, CIAL and the Honorable why a rule to show cause relief should Hickman, Judges Deanna one of the granted. not be We now make the rule thereof, Respondents. absolute. No. 98SA408. petitioners initiated a civil action in Supreme Court of Colorado. the trial court on March August 1998. On 11, 1998, Delay the trial court issued a Re- Dec. 1998. duction directing petitioners Order accomplish thirty days three tasks within (1)
the order: required file disclosures (2) C.R.C.P. file a proposed C.R.C.P. 16 order, management case set the ease thirty for trial. days order, Within of this petitioners disclosures, required filed the proposed order, management case and a 11, 1998, notice to set trial. September On the trial court Management issued the Case provided, Order. This order in a handwrit- “[tjrial ten judge, notation the trial — shall be set days setting within 30 cannot wait until December 1998.” September court, On the trial acting sponte, sua entered an Order of Dis- missal. upon The court based this order petitioners’ comply failure to Delay Reduction Order because trial had not been thirty days set within August Upon receipt dismissal, of the order of petitioners filed a motion to Al- reconsider. though response filed, no the trial court denied the motion to reconsider. We con- *10 that the trial dismissing clude court erred in