Bresnahan v. District Court of Fifth Judicial Dist.
| Decision Date | 04 December 1967 |
| Docket Number | No. 22902,22902 |
| Citation | 434 P.2d 419,164 Colo. 263 |
| Parties | William James BRESNAHAN, Jr., and Edward L. Wood, Esq., as Guardian ad Litem of William James Bresnahan, Jr., Petitioners, v. The DISTRICT COURT OF the FIFTH JUDICIAL DISTRICT and the Honorable William H. Luby, District Judge, Respondents. |
| Court | Colorado Supreme Court |
Edward L. Wood, John L. Kane, Jr., Denver, for petitioners.
Anthony F. Zarlengo, Denver, John P. Moore, Asst. Atty. Gen., for respondents.
Bresnahan, age 16, pled guilty to murder of the first degree in each of two informations filed in the district court presided over by the Honorable William H. Luby. On January 27, 1965 Bresnahan was sentenced to life imprisonment in each case.
Pursuant to Colo.R.Crim.P. 35(b) Bresnahan on April 12, 1966 filed with the court a motion to vacate the aforementioned judgments and sentences. Contained in the motion to vacate was a request that the trial judge disqualify himself from hearing and determining the aforesaid motion to vacate, and as ground therefor Bresnahan stated that he intended to call the trial judge as a witness upon the hearing of his motion. The trial judge refused to thus disqualify himself, whereupon Bresnahan, and his court appointed guardian ad litem, Edward L. Wood, instituted an original proceeding in this Court. We issued a rule to show cause, though we later discharged the rule after holding that the request for disqualification under the circumstances had been properly denied. See Bresnahan v. Luby, Colo., 418 P.2d 171.
In the course of our opinion in Bresnahan v. Luby, supra, we made the following comment relating to the future conduct of the proposed 35(b) hearing:
'There is argument as to whether certain reports which are in the possession of the respondents and which are being treated as confidential by him should be opened to examination by counsel for Bresnahan and their contents made a part of the record for consideration in connection with pertinent issues raised by the motion to vacate the judgment. Insofar as these documents are concerned, there is no necessity for testimony by the trial judge, for it can certainly be stipulated which of those was before him when he accepted the change of plea or at any other times pertinent to the proceedings here, and thereupon they can be made a part of the record so that all facts bearing upon the issues raised under the motion to vacate the judgment may be part of the record in this case. (Emphasis added.)
Thereafter further preliminary hearings were held by the respondent judge, and as a result of certain of his rulings Bresnahan and the guardian ad litem have now instituted a Second original proceeding in this court. The respondents in the present proceeding are the District Court of the Fifth Judicial District and the Honorable William H. Luby, Judge of the aforesaid district court. In their 'petition for a Writ of Mandamus and for Other Relief' the petitioners complain about the respondents, as we understand it, as follows:
1. the respondent judge has generally failed to follow the 'direction' of this Court as set forth in the first original proceeding between the parties, particularly as regards the probation and presentence investigation reports;
2. the respondent judge by refusing to order the taking of the depositions of two residents of Wyoming has effectively barred the petitioners from essential testimony in support of Bresnahan's motion to vacate; and
3. the refusal of the trial court to order that the costs of taking the depositions, above referred to, be paid out of public funds.
Upon such showing, we issued a Second rule to show cause. The respondents have now made their response thereto and the matter now awaits our determination.
In Bresnahan v. Luby, supra, we stated that inasmuch as the evidence sought to be adduced by Bresnahan in support of his motion to vacate could be obtained from witnesses other than the trial judge, the trial judge in such circumstances was not such a material witness as to require his disqualification. In that particular proceeding there was also a dispute concerning certain written reports, namely doctor's reports, probation and pre-sentence reports, and the like, which were then in the possession of the respondent judge. According to the petitioners, these reports were being treated by the respondent judge as confidential in nature and therefore unavailable to the petitioners for the purpose of inspection, and copying and using in connection with their motion to vacate. The contents of these particular reports were said to have been known by the respondent judge as of the time when he permitted Bresnahan to change his plea from one of 'not guilty' to one of 'guilty.'
In the earlier proceedings we stated in connection with these various reports that there was no need for the trial judge to offer testimony relative thereto and, as already noted, we optimistically opined that 'it can certainly be stipulated which of those was before him when he accepted the change of plea or at any other times pertinent to the proceedings here, and thereupon can be made a part of the record that all of the facts bearing upon the issues raised under the motion to vacate may be part of the record in this case.'
The foregoing statement, however, did not resolve this phase of the controversy....
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...190 Colo. 497, 549 P.2d 1312 (1976). A Crim.P. 35 proceeding is but one phase of a criminal proceeding. Bresnahan v. District Court, 164 Colo. 263, 434 P.2d 419 (1967). Whether the court has jurisdiction to grant the relief requested must be determined by an analysis of the provisions of Cr......
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Bresnahan v. Patterson, Civ. A. No. C-3671.
...because of Bresnahan's claim that he was going to call Judge Luby as a witness. The next report of the case is Bresnahan v. District Court (1967) 164 Colo. 263, 434 P.2d 419, in which Judge Luby was ordered to make available to Bresnahan's counsel, "all documents, letters and reports which ......
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People v. Thompson
...present such evidence when it has been obtained through other sources. ¶34 In his notice of supplemental authority, Thompson cites Bresnahan v. District Court for the proposition that a Crim. P. 35(c) proceeding is controlled by criminal procedural rules with respect to any permitted discov......
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People ex rel. Faulk v. District Court of Eleventh Judicial Dist. of Colorado, 83SA231
...United States v. Wilson, 601 F.2d 95 (3d Cir.1979); United States v. Mann, 590 F.2d 361 (1st Cir.1978); Bresnahan, Jr. v. District Court, 164 Colo. 263, 434 P.2d 419 (1967); 2 (Crim.) C. Wright, Federal Practice and Procedure § 241 (2d ed. 1982). This is not to say, however, that the court ......