Blevins v. Tihonovich, 85SA390
| Citation | 728 P.2d 732 |
| Decision Date | 02 December 1986 |
| Docket Number | No. 85SA390,85SA390 |
| Parties | James D. BLEVINS, Petitioner-Appellant, v. Dan TIHONOVICH, Sheriff of the County of Pueblo, State of Colorado, Respondent-Appellee. |
| Court | Supreme Court of Colorado |
Law Offices of J.E. Losavio, Jr., J.E. Losavio, Jr., Corinne E. Martinez, Pueblo, for petitioner-appellant.
Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., John Milton Hutchins, First Asst. Atty. Gen., Denver, for respondent-appellee.
James D. Blevins appeals an order of the district court for the County of Pueblo denying his petition for a writ of habeas corpus. The district court ruled that it was without jurisdiction to reopen or reconsider the county court's determination of probable cause. Relying on our recent decision in White v. MacFarlane, 713 P.2d 366 (Colo.1986), we affirm.
On November 23, 1984, Blevins was arrested and charged with two counts of felony menacing with a deadly weapon. § 18-3-206, 8B C.R.S. (1986). The information alleged that there were two victims, Paul Jersin and Raeann Johnson. At Blevins' preliminary hearing in Pueblo County Court on May 2, 1985, only Paul Jersin was called to testify to the events leading up to the petitioner's arrest. Jersin testified that on November 23, 1984, he was driving down Northern Avenue in Pueblo County with his girlfriend, Raeann Johnson, in the passenger seat beside him. He stated that Blevins, in a four-wheel drive pickup, drove up next to his car shouting foul language and making obscene gestures at Raeann Johnson, drove erratically from one lane of traffic to the other, at one point threw roofing nails at Jersin's car, and then sped off. Jersin testified to chasing Blevins in order to obtain Blevins' license plate number to give to the police. According to Jersin, when he caught up with Blevins, Blevins swerved toward Jersin's car, rolled down the window on the passenger's side of the car, and pointed a handgun out of the window towards Jersin. Jersin stated that he immediately decelerated, just as Blevins fired his gun.
The petitioner cross-examined Paul Jersin for at least thirty minutes on the details of the incident, and then sought to call Raeann Johnson to testify. The prosecutor objected, claiming that Johnson's testimony would go to the credibility of Jersin's testimony and not to the establishment of probable cause. Blevins claimed that he had a right to cross-examine Raeann Johnson because she was named as a victim in the information. The county court sustained the prosecution's objection, ruling that a preliminary hearing was not a mini-trial and that the evidence presented was sufficient to establish probable cause as to both counts of menacing with a deadly weapon. The case was bound over to the district court for trial.
On June 7, 1985, Blevins filed a petition for a writ of habeas corpus in the district court for the County of Pueblo; a hearing was held on August 2, 1985. The petitioner contended that the relief of habeas corpus was appropriate, although he was out on bail, because his liberty was restrained by the surety bond. He claimed that there was a substantial defect in the process afforded him at the preliminary hearing because he was not permitted to cross-examine a witness to the incident. He also claimed that everything Jersin said with regard to Raeann Johnson was hearsay evidence and, therefore, Johnson should have testified herself. The People asserted that the petitioner did not meet the jurisdictional requirements of the Habeas Corpus Act because the petitioner was not in custody and there was no final judgment in the case. On August 26, 1985, the Pueblo District Court denied Blevins' request for a writ of habeas corpus, ruling that it was without jurisdiction to reopen or reconsider the county court's determination of probable cause.
Habeas corpus relief is generally not available unless other relief is unavailable. A defendant seeking to challenge an erroneous ruling on probable cause may seek extraordinary relief under C.A.R. 21, 7B C.R.S. (1984). White v. MacFarlane, 713 P.2d at 368-69. In White, we stated that an original proceeding under C.A.R. 21 is one method of testing a...
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