Barela v. People, 91SC113
| Citation | 826 P.2d 1249 |
| Decision Date | 27 January 1992 |
| Docket Number | No. 91SC113,91SC113 |
| Parties | Gerald Lee BARELA, Petitioner, v. The PEOPLE of the State of Colorado, Respondent. |
| Court | Colorado Supreme Court |
Jeffery R. Kelley, Englewood, for petitioner.
Robert R. Gallagher, Jr., Dist. Atty., James C. Sell, Chief Deputy Dist. Atty., Englewood, for respondent.
We granted certiorari to consider whether the district court erred in reversing the county court's dismissal of criminal charges against the defendant, Gerald Barela, and in remanding the case to the county court for trial. The county court heard and granted the defendant's motion to suppress evidence after a jury had been impaneled but had not yet been sworn to try the case, and then dismissed the unsworn jury after the prosecutor initially announced an intention to file an interlocutory appeal from the suppression ruling. The prosecutor later reconsidered the matter and decided not to appeal the suppression ruling, but another judge of the county court, on the day of the rescheduled trial, dismissed the case with prejudice, ruling that the dismissal of the unsworn jury and the rescheduling of the trial violated due process of law. We disapprove the procedures employed by the county court in this case, but hold that the rescheduling of the defendant's trial did not violate any speedy trial or due process rights of the defendant. We accordingly affirm the judgment of the district court, and remand the case to that court with directions to return the case to the county court for further proceedings.
The defendant was charged with driving under the influence, 1 careless driving, 2 and leaving the scene of an accident, 3 all of which allegedly occurred on October 29, 1989. The defendant posted bail and was represented by counsel during the course of the subsequent proceedings. On December 20, 1989, the defendant entered a not guilty plea to the charges, and the case was set for a jury trial on February 6, 1990. Before the scheduled trial date, the defendant filed a motion to suppress evidence seized from his home and garage on October 29, 1989, the date of his arrest. Before the suppression motion was heard, the defendant filed a motion for a continuance of the trial date and expressly waived his right to a speedy trial. The court granted the request for a continuance and reset the case for a jury trial on April 9, 1990.
On the scheduled trial date, the prosecutor and defense counsel conducted a voir dire of the jury panel during the morning session of court and ultimately selected six persons to serve as the jurors in the case. The court, however, did not swear the jurors to try the case but rather excused them until the afternoon session of court. When the court commenced in the afternoon, it conducted an evidentiary hearing on the defendant's motion to suppress evidence. So far as we can determine from the record, the procedure followed by the court of impaneling but not swearing the jurors in the morning session of court and in hearing suppression motions in the afternoon session was developed by the county court in order to permit prosecution witnesses to testify on suppression motions during the same session of court as their scheduled trial testimony.
After hearing evidence on the suppression motion, the court suppressed the evidence seized from the defendant's home but refused to suppress evidence seized from his garage. The court then asked the prosecutor whether she intended to file an interlocutory appeal from the suppression ruling, and the prosecutor answered that an interlocutory appeal would be filed. The court thereupon discharged the unsworn jury and recessed for approximately thirty minutes to allow the prosecutor and defense counsel to confer about a possible disposition before resetting the case for trial. When the court again convened, the prosecutor, who during the recess had conferred with her superiors regarding the suppression motion, informed the court that the case could not be resolved by a plea agreement and that an interlocutory appeal would not be pursued. When the prosecutor requested the court to reset the case for trial, the defendant moved to dismiss the charges on the basis that any further trial would violate the constitutional prohibition against double jeopardy. The court ruled that jeopardy had not attached because the jury had not been sworn, but granted the defendant permission to file a written motion to dismiss. After offering defense counsel several trial dates, all of which were unacceptable, the court recused itself from hearing any further matters on the case and the case was rescheduled for trial before a different judge on July 16, 1990.
Before the rescheduled trial date, the defendant filed a motion to dismiss, claiming that the prosecutor's vacillating position on whether to file an interlocutory appeal resulted in denying him his due process right to a trial before the impaneled but unsworn jury. The county court heard the defendant's motion to dismiss immediately prior to jury selection on July 16, 1990, and granted the motion, ruling as follows:
In the instant case, the jury previously selected by the People and the defendant would have been sworn and the trial conducted, but for a procedure designed to benefit the People. The defendant has been prejudiced in that [h]e has had to bear additional costs. He has had to spend further time with this matter. He has had to labor under additional anxiety. And, he has been denied an opportunity to proceed to trial with a jury of his choosing. The defendant is without fault in this delay. The Court finds, therefore, that the prejudice to the defendant is so substantial as to amount to a denial of substantive due process. Therefore, it is ordered that this matter be dismissed with prejudice.
The People appealed to the district court. It was the People's position that the defendant had no constitutional right to be tried by the impaneled but unsworn jury and that the defendant suffered no prejudice as a result of the rescheduling of the trial following the dismissal of the unsworn jury. The defendant, in contrast, argued that the dismissal of the unsworn jury and the rescheduling of the trial violated not only due process of law but also his right to a speedy trial. In reversing the order of dismissal and remanding the case for trial, the district court ruled as follows:
This court does not concur that the record establishes a denial of substantive due process.
Crim.P. 41.2 authorizes the People to seek interlocutory appeal from a pre-trial county court ruling which, as here, suppresses evidence or an extrajudicial confession or admission. Neither Crim.P. 41.2 nor any other authority precludes the People from reconsidering and withdrawing a stated intention to file an interlocutory appeal. In this case the People, had they chosen to do so, could have used up to five days to determine that they would or would not file. If the People failed to file notice of appeal within five days, their right to appeal would have expired. A motion by the People to set the case for trial would then have been proper. In this case no greater prejudice to the defendant resulted than if the full five day period had been used. There is no factual basis for a finding, and the trial court did not find, that the action of the deputy district attorney was a ruse to secure a continuance or to force a discharge of the jury or was in any other way based upon bad faith.
No speedy trial issue is raised by the facts in this case, as (1) the defendant waived speedy trial on February 26, 1990, and (2) the case was set for trial as expeditiously as was compatible with defense counsel's calendar.
The inconveniences cited by the trial judge as constituting substantive denial of due process are no more than the ordinary vicissitudes commonly met in setting cases for trial consonant with calendars and dockets of busy courts and counsel.
The defendant was not denied the right to trial before a jury of his choosing. The defendant has no right to a specific jury. His right to participate in a second jury selection process was still open to him on July 16, 1990. The original jury not having been sworn, no double jeopardy issue is presented.
We granted the defendant's petition for certiorari to consider whether the procedure followed by the county court--namely, hearing and granting the defendant's motion to suppress after impaneling but not swearing the jury and then dismissing the unsworn jury upon the prosecution's election to file an interlocutory appeal and resetting the case for trial--created the potential for abuse of the interlocutory appeal process authorized by Crim.P. 41.2 and violated due process of law.
Before considering whether the defendant's constitutional rights were violated by the county court's dismissal of the unsworn jury and the rescheduling of the trial, we address the propriety of the county court's practice of setting suppression motions for hearing after a jury has been impaneled but has not yet been sworn. We conclude that this practice, when adopted and followed as a routine scheduling device, undermines the general procedural scheme contemplated by the Colorado Rules of Criminal Procedure for resolving suppression motions and interlocutory appeals from suppression rulings.
Crim.P. 41(e) provides that a motion to suppress evidence based on an alleged unconstitutional search and seizure "shall be made and heard before trial unless opportunity therefor did not exist or the defendant was not aware of the grounds for the motion, but the court, in its discretion, may entertain the motion at the trial." Crim.P. 41(g) contains a similar requirement with respect to a motion to suppress an alleged involuntary confession or admission made by the defendant. We have emphasized on more than one occasion the importance of filing and resolving ...
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