Abbott v. County Court of Fourteenth Judicial Dist. In and For County of Grand

• Decision Date: 19 December 1994
• Docket Number: No. 93SC578,93SC578
• Parties: David C. ABBOTT, Petitioner, v. The COUNTY COURT OF the FOURTEENTH JUDICIAL DISTRICT In and For the COUNTY OF GRAND, and the Honorable Scott P. Krob, County Judge In and For the County of Grand, Respondents.
• Court: Colorado Supreme Court

Page 730

886 P.2d 730

David C. ABBOTT, Petitioner, v. The COUNTY COURT OF the FOURTEENTH JUDICIAL DISTRICT In and For the COUNTY OF GRAND, and the Honorable Scott

P. Krob, County Judge In and For the

County of Grand, Respondents.

No. 93SC578.

Supreme Court of Colorado,

En Banc.

Dec. 19, 1994.

Colorado Education Ass'n, Martha R. Houser, Gregory J. Lawler, Sharyn E. Dreyer, Cathy L. Cooper, Bradley C. Bartels, Aurora, for petitioner.

Paul R. McLimans, Dist. Atty., Fourteenth Judicial Dist., Lisa G. Lane, Chief Deputy Dist. Atty., Hot Sulphur Springs, for respondents.

Chief Justice ROVIRA delivered the Opinion of the Court.

We granted certiorari in Abbott v. County Court, No. 92CA1202 (Colo.App. July 29, 1993) (not selected for official publication), to decide: (1) whether a defendant who has a preliminary hearing in county court may appeal a finding of probable cause to the district court pursuant to C.R.C.P. 106; and (2) whether, after the district court reversed the finding of probable cause, the People should have appealed the district court's decision directly to this court. We hold that a district court may not review a county court's finding of probable cause under C.R.C.P. 106. We also hold that because the People's appeal followed a C.R.C.P. 106 proceeding, appeal to the court of appeals was proper.

I

David Abbott (Abbott) was charged with sexual assault on a child by one in a position of trust in violation of section 18-3-405.3, 8B C.R.S. (1994 Supp.). At the preliminary hearing held in the county court, the prosecution's only witness was the investigating officer, Glen Trainor (Trainor). Trainor based his testimony on his interviews with the alleged victim, witnesses, school administrators and the defendant. Trainor also viewed the room where the alleged incident occurred. The victim was not present at the preliminary hearing. The county court found probable cause existed to bind Abbott over to the district court for trial. Abbott sought review by the district court of the probable cause finding pursuant to C.R.C.P. 106(a)(4). ¹ The district court reviewed the preliminary hearing transcript and dismissed the charges because the People failed to present sufficient evidence to establish probable cause on the sexual contact element of the offense. The People appealed to the court of appeals where that court held that the district court erred by improperly reviewing the county court's factual finding of probable cause. Abbott, No. 92CA1202, slip op. at 3. Further, it held that since the district court could not properly review a county court's factual findings of probable cause, it was in the same position as the district court. The court of appeals reversed and remanded the case to the district court with directions to reinstate the charge.

II

A

At issue is the proper procedure for review of a county court's finding of probable cause. Abbott argues that a defendant who has a preliminary hearing in a county court should be allowed to appeal a finding of probable cause to the district court pursuant to C.R.C.P. 106(a)(4). We disagree.

To establish probable cause at a preliminary hearing the prosecution must present evidence sufficient to induce a person of ordinary prudence and caution to entertain a reasonable belief that the defendant committed a crime. E.g., People v. District Court, 803 P.2d 193, 196 (Colo.1990). Crim.P. 5(a)(4)(II) provides that "[t]he judge presiding at the preliminary hearing may temper the rules of evidence in the exercise of sound judicial discretion." We have long held that a court can find probable cause based largely upon hearsay testimony. See, e.g., People v. Quinn, 183 Colo. 245, 516 P.2d 420 (1973). We have also explained reliance on hearsay evidence must not be abused. Maestas v. District Court, 189 Colo. 443, 541 P.2d 889 (1975). ² All evidence presented in a preliminary hearing must be viewed in the light most favorable to the prosecution, and all inferences must be resolved in favor of the prosecution. See People v. Jensen, 765 P.2d 1028, 1030 (Colo.1988). "Ordinarily, a probable cause determination will not even be reviewed." People ex rel. Leidner v. District Court, 198 Colo. 204, 207, 597 P.2d 1040, 1042 (1979) (citing Kuypers v. District Court, 188 Colo. 332, 336, 534 P.2d 1204, 1206 (1975)).

We first considered the issue of district court review of a county court's probable cause findings in People v. District Court, 652 P.2d 582, 585 (Colo.1982) where we held that a district court cannot properly review a county court's finding of probable cause. There, we examined the plain language of Crim.P. 5 which provides "[i]f the county judge finds probable cause, 'he shall order the defendant bound over to the appropriate court of record for trial.' " Id. (quoting Crim.P. 5(a)(4)(III)) (emphasis supplied). We explained " '[t]his mandate precludes subsequent reexamination or reflection. There is no provision for rehearing on or reconsideration of a ruling on completion of a preliminary hearing. In short, respondent court has no jurisdiction to later reopen the matter after bind-over to reduce the charges.' " Id. (quoting People ex rel. Russel v. District Court, 186 Colo. 136, 526 P.2d 289 (1974) (finding a district court did not have authority to later reopen or reconsider its own finding of probable cause)). We held the Russel rationale applied equally to a district court's review of a county court's finding of probable cause. Id. This decision reflected our belief that the objectives of a preliminary hearing would be undermined if "appellate courts were to second-guess the discretionary first-hand assessments of trial courts and substitute their evaluations of testimony based on cold transcripts." People ex rel. Leidner, 198 Colo. at 207, 597 P.2d at 1042; see also People ex rel. Gallagher v. Arapahoe County Court, 772 P.2d 665, 666 (Colo.App.1989) (District court cannot review a county court's finding of no probable cause.).

In White v. MacFarlane, 713 P.2d 366, 368 (Colo.1986), we affirmed this rule, holding that a "district court does not have jurisdiction to reopen or reconsider a county court's probable cause determination." This ruling does not, however, leave the defendant without a remedy because "[a] defendant seeking to challenge an erroneous ruling on probable cause may seek extraordinary relief under C.A.R. 21." White, 713 P.2d at 368-69. ³

B

Despite this precedent Abbott elected not to seek review under C.A.R. 21. Instead, he contends that since the district court based its review strictly upon the prosecution's failure to present testimony of a perceiving witness, review under C.R.C.P. 106 is proper. ⁴ We disagree. The district court did not reverse because only hearsay testimony was presented; it reversed based on the content of the testimony, and a lack of evidence on the sexual contact element of the offense.

We are not persuaded by Abbott's attempt to recast the district court's reversal into a procedural ruling. ⁵ Abbott relies on Zaharia v. County Court, 673 P.2d 378, 380 (Colo.App.1983), to support his conclusion that Maestas created a procedural rule and corresponding remedy under C.R.C.P. 106. Close review of Zaharia compels the opposite conclusion. In Zaharia, the court of appeals considered a two-pronged challenge to a county court's probable cause determination; first, whether any competent nonhearsay testimony was presented, and second, whether the county court abused its discretion in failing to allow the recall of a witness. Zaharia, 673 P.2d at 379-80. The court of appeals correctly explained that the district court could not review the county court's probable cause finding. Id. However, the court concluded that the propriety of prohibiting the recall of a witness does not involve a factual determination and could properly be reviewed pursuant to a writ of prohibition under Rule 106. Id. at 380. While Zaharia allowed nonfactually based procedural review, it expressly proscribed the review advocated by Abbott.

Here, the district court engaged in the review prohibited under White and Zaharia. The district court did not reverse based solely upon the People's failure to present nonhearsay evidence. The court went beyond the procedural aspects of the county court proceedings to consider the substance of the preliminary hearing testimony. The court focused on the sexual contact element of the charge:

As I understand this case, one of the problems is that the victim had testified that the defendant had placed his hand on her buttocks, as I recall under the testimony, and whether that reached the elements even under the elements of the charge.

Because I thought that the charge here involved some more private portion of the body. And for that reason, there may be a basic failure of the preliminary to show the elements, counsel, so that's where the Court focused. ⁶

The district court's factual focus was also reflected in its warning to the prosecution that, if the charges were directly filed, the court would "hope you know more than what was shown in the transcript." The question considered by the district court was whether the prosecution presented sufficient evidence to establish an element of the crime. The court's recognition that no perceiving witness testified does not convert its review into a procedural ruling.

Abbott's argument that the lack of nonhearsay evidence constituted a procedural failure illustrates the problem that could arise if we allowed district court review of a county court's finding of probable cause. The temptation would exist to characterize insufficient evidence as a procedural deficiency. ⁷ Contrary to Abbott's contention, judicial efficiency would not increase, but we would add another layer of review in the preliminary stages of a criminal proceeding. A preliminary hearing would have the potential to be converted from a tool to screen bad cases, see, e.g., People v. Taylor, 655 P.2d 382 (Colo.1982...