*1 sewer; entering and that children were imposing We see no basis for lia bility (3) on based on the existence of whether it knew or should have known Sheridan owned, gas Park. park presence Chase con of methane the sew- er; trolled, operated, (4) improperly and maintained it maintained by de whether entrance; Metropolitan fendant South Suburban Rec the storm sewer whether District, maintenance, improper any, reation and Park and there was no if was a cause showing injuries. any responsibili that Sheridan had of the children’s ty duty or in connection therewith. Where Judgment cause reversed and remanded owed, duty liability imposed. cannot be with this proceedings for further consistent Grier, Colo.App., 608 Turner v. P.2d 356 opinion. (1979). KIRSHBAUM, JJ., concur. COYTE
However, did have a duty Sheridan acceptance of arising from its contractual maintenance of the responsibility duty
sewer entrance. This extended be trashrack; installing it
yond merely á entrance, and, doing,
to maintain the so High
to use reasonable care. Mile Radovich,
Fence Co. v. 175 Colo. appears It that the bars P.2d 308 Colorado, The PEOPLE pried the trashrack were bent or had been Plaintiff-Appellee, sufficiently to allow to enter apart children the sewer. is liable for breach of Sheridan known, knew, duty if it or should have SCHULTHEIS, Glen O. existed which involved an that a condition Defendant-Appellant. risk unreasonable of harm to members of No. 78-298. public, if it failed to take reasona precautions ble to correct the condition. Appeals, Colorado Court Co., High supra. Mile Fence Div. III. duty also owe another Sheridan July 1980. supplied support of care. The documents Rehearing July Denied opposition summary judg and in Certiorari Oct. Granted ment motion disclose a fact issue concern ing whether sewer and its entrance so,
constituted an attraction to children. If had a to take reasonable
Sheridan
precautions prevent children from enter
ing protect personal the sewer or to
injury any might children who be attracted Dowis,
thereto. See Simkins
Consequently, since a existed law, judgment
as a matter of summary
should not have been entered because nu questions
merous relating fact to whether remained, breached that in
Sheridan
cluding: (1) whether the sewer and its en children;
trance constituted an attraction to
(2) whether Sheridan knew or should have
known the condition of the sewer entrance
7H *3 Gen., MacFarlane, Atty. Richard F. J. D. Gen., Hennessey, Deputy Atty. Edward G. Weinman, Donovan, Gen., Jeffrey Asst. Sol. Gen., Denver, plaintiff-appellee. Atty. Denver, Murdock, for defend- Craig A. ant-appellant.
BERMAN, Judge. a appeals his conviction
Defendant murder, degree. We jury of in the first reverse. County
While incarcerated in the Denver
Jail,
charged
with the mur-
defendant
of a fellow
der
inmate. Defendant
first
pled
guilty by
insanity,
reason of
but
not
after
examina-
psychiatric
a court-ordered
16-8-101,
et
made, pursuant
tion was
to
§
8),
seq., C.R.S.1973
(1978 Repl. Vol.
sane,
concluded that defendant was
defend-
insanity plea,
ant
and entered
withdrew
plea
guilty.
not
trial,
morning
defendant
On
trial,
to
personally objected
proceeding
ready for
arguing that the defense was not
had not
trial because two defense witnesses
subpoenaed.
presence
been
In the
court-appointed
judge,
prepared
he was
explained
counsel
trial,
go but
to affirma-
that he “refused
tively put on evidence that
[he knew]
fabricated.” After
further
consultation
defendant, both defendant and his
with
permitted
counsel moved that counsel be
withdraw from the case. These motions
were denied.
Cal.Rptr.
Trial counsel and where, But, presence right room in the a defendant’s to effective assist described for the reporter, attorney’s duty ance of counsel and an disagreement record the basis of the his client do not mean that an motions. led their above-described present testimony he knows Counsel stated that as a result of conversa- Branch, to be In supra; re Peo defendant, tions with and as a result-of Pike, ple v. 22 Cal.Rptr. Cal.2d conversations had between defendant and fact, In the Code of he would examining psychiatrist, not call 7-102(A) Professional DR testify two who would that at the witnesses specifically representa states “In his that: time of the murder defendant was with client, tion shall not: ... essence, them. counsel stated that he [kjnowingly perjured testimony use or false alibi witnesses refused to call two because evidence.” this affirmative duty, Given *4 present per- he “knew” that would even in the face of a criminal defendant’s jured testimony. right to constitutionally based effective as proceeded represent Trial to counsel de- counsel, we hold an attor sistance of that fendant at trial. The two alibi witnesses ney testimony shall not use that he knows is called, were not and defendant was convict- Thus, perjured- contrary to defendant’s ed. contention, correctly the trial court refused present testimony to trial counsel to I. he to be “knew” appeal,
On
defendant contends that
the
compelled
do, however,
trial court should have
trial coun-
We
with defend
witnesses, or,
sel to call
two alibi
alter-
that,
present
ant
under the circumstances
granted
the court should have
trial
natively,
ed, the
trial
denying
court erred in
counsel’s
withdraw,
request
counsel’s
and that the motion to withdraw from the case.
In a
court’s failure to follow either of those
case,
strikingly similar
the Ohio Court of
courses denied defendant effective assist-
Appeals held that
erred
Although there is no
ance of counsel.1
counsel’s motion to with
denying defense
right
a
doubt as to the constitutional
premised
on the
draw which motion
criminal defendant
to effective assistance
ground that
the defendant
intended to
California,
counsel,
422
Faretta v.
U.S.
testimony
support
his
present perjured
806,
2525,
(1975);
95 S.Ct.
An
who
upon such a course.
draw if his client insists
represent
criminal defendant has a
advocate,
supra;
Respon
of Professional
Trapp,
Code
zealously
his client
as an
and to
Further,
7-102(B)(2).
require
sibility DR
all
defenses. Code of Pro
1;
continue as defendant’s
attorney
fessional
EC
Anders
7—
California,
1396,
is such a serious disa
386
87
18 counsel where there
U.S.
S.Ct.
Branch,
(1967);
greement
L.Ed.2d 493
In re
70 Cal.2d
between
judicial
Appellate
Although
au-
2.
counsel has cited no
defendant’s motion to have counsel
however,
denied,
thority
position;
he does find
for his
removed was also
this denial was not
Freedman,
trial,
Respon-
support in M.
Professional
raised in defendant’s motion for new
nor
Lawyer:
sibility
argu-
Defense
The
Criminal
was it raised in defendant’s brief or oral
Michigan
Questions,
L.Rev.
Three Hardest
64
ment before this court.
Freedman, Lawyers’
in M.
System (1975).
Adversary
in An
Ethics
American
The
Bar Association Com
deprives
client
defendant of effective
Anders,
Responsi
Ethics and Professional
supra;
of counsel.
mittee on
assistance
closely analogous prob
bility dealt
Trapp, supra.
see
attorney,
lem of whether an
who learns
Here, defendant was denied such ef
through
privileged
communication
fective assistance of counsel because trial
perjury,
must re
his client
committed
as an amicus curiae
counsel acted more
past
veal
fraud to the court.
active advocate for de
rather than as an
that,
(which
tradition
A.B.A. stated
“[t]he
Anders,
Barker v. Wain
supra;
fendant.
considerations)
policy
backed
substantial
1972).
wright,
(5th
Cir.
And this
F.2d
permits
to assure a client that
right
effective
(whether
denial of defendant’s
as
information
a confidence or a se
counsel, Faretta,
Anders,
supra;
sistance of
cret) given
be revealed to
to him will not
supra,
right
error because the
is reversible
parties
third
that it should
important
is so
right
to counsel is a constitutional
so basic
precedence,
take
in all but the most serious
cases,
imposed by
fair trial that
its infraction can never
over the
DR 7—
102(B).”
Chapman
be treated as harmless.
v. Cali
A. B. A. Committee on Ethics &
fornia,
Responsibility,
Opinion
17 L.Ed.2d Professional
Formal
U.S.
(Parentheticals
September
Thus,
original).
attorney may not
Thus,
summary,
we conclude that
maintaining
breach his
his client’s
*5
attorney’s duty
an
as an officer of the court
even when he knows his client
confidences
obligations
and his
under the Code of Pro
Indeed,
previously perjured himself.
absolutely preclude
Responsibility
fessional
recognition
preeminence
duty,
of this
of the
attorney
knowing
per
an
from the
use of
Responsibility
Code of Professional
DR 7—
jured testimony.
attorney
When an
is con
102(B)(1)
in 1974 to
out
was amended
carve
fronted with a situation in which his client
exception
attorney’s duty
an
to an
to reveal
perjured
is
upon presenting
intent
testimo
fraud
knowledge
when the
of the fraud is
ny,
he
to withdraw
has an affirmative
upon
privileged
based
communication.
case,
from
such
the
and under
circumstanc
attorney’s duty
We
that the
es,
attorney’s
the
the
grant
court must
mo
protect privileged communications between
Therefore,
tion to withdraw.
in the instant
paramount.
himself
his client
is
case,
denying
the trial court erred
trial
court,
the one now before this
cases such as
counsel’s motion to withdraw.
making
attorney,
the
when
his motion
Defendant also contends that
trial coun- withdraw, should maintain silence with re
maintaining
sel breached his
of
the
spect
privileged
all
communications.
confidentiality
privileged
communica-
13-90-107(1),
(1979
Section
C.R.S.1973
tions between himself and defendant when Cum.Supp.);
Responsi
Code Professional
trial
to the court that he
counsel disclosed
4-101;
bility DR
see In re Grievance Com
affirmatively put on evidence
“refused to
(N.D.
Malloy,
mission v.
3. As Justice Black noted in his
dence:
like all
be
Florida,
78,
unwisely-may
keenly-
pursued
ion in Williams v.
399 U.S.
be
loved
may
too
I with the agree trial coun- correctly refused v. testimony he knew to be sel DIS LAKEWOOD FIRE PROTECTION Also, majority I TRICT, Compensation Insurance divulged counsel should not have that trial Fund, of and The Industrial Commission insisting on the court that his client was Colorado, Respondents. and that putting perjured testimony, granted should have the motion to CAMPBELL, Petitioner, Delbert L. withdraw. However, agree I do not denial LITTLETON, The State Com CITY OF error, the motion was reversible and see pensation Fund, and The In Insurance law, holding, as a matter of no basis Colorado, dustrial Commission of Re deprived of thereby that the defendant was spondents. to effec- process right his constitutional due tive assistance of counsel. 79CA0945, Nos. 80CA0060. determine, “A court must when faced Appeals, Colorado Court a claim ineffective assistance of with Div. III. counsel, was within ‘whether the advice demanded of range competence July cases,’ attorneys criminal ... Rehearings July Denied whether the assistance rendered represen- ‘faithful 1980 and attorney demonstrates Certiorari Denied Oct. ’ ” 20, 1980.
tation of the interest of his client ... Oct. Blalock, Colo., People testimony presented, was not perjured
but that is not “ineffective assist- certainly started, is noth-
ance.” Once the trial there record, re-
ing in and we have been would show that nothing,
ferred to assistance
defendant was denied effective fact, apparent
of counsel. it throughout ably represented
defendant was *7 trial, nor in the
the trial. And neither at motion, appeal, has there
new trial nor prejudice to defendant any showing
been to withdraw. of the motion the denial
I affirm the conviction. would