Espinoza v. District Court In and For Conejos County, 25776

• Decision Date: 05 February 1973
• Docket Number: No. 25776,25776
• Citation: 506 P.2d 131,180 Colo. 391
• Parties: Andrew ESPINOZA and Daisy Salazar, Petitioners, v. The DISTRICT COURT IN AND FOR the COUNTY OF CONEJOS, State of Colorado, et al., Respondents.
• Court: Colorado Supreme Court

Page 131

506 P.2d 131

180 Colo. 391

Andrew ESPINOZA and Daisy Salazar, Petitioners, v. The DISTRICT COURT IN AND FOR the COUNTY OF CONEJOS, State of Colorado, et al., Respondents.

No. 25776.

Supreme Court of Colorado, En Banc.

Feb. 5, 1973.

Rollie R. Rogers Colorado State Public Defender, J. D. MacFarlane, Chief Deputy State Public Defender, John C. McClure, Deputy State Public Defender, Denver, for petitioners.

Robert W. Ogburn, Dist. Atty., for 12th Judicial District, State of Colorado, Alamosa, for respondents.

HODGES, Justice.

This is an original proceeding in which we issued a rule to show cause why the respondents should not be prohibited from retrying the petitioners on criminal charges. In the first trial, the respondent judge declared a mistrial sua sponte during the course of a defense attorney's closing argument. The respondents now intend to proceed with the second trial and the petitioners claim that a second trial should be barred because it would be in violation of the constitutional prohibition against double jeopardy. The matter is now at issue and after having considered the merits of the controversy, we make the rule absolute. To expose these defendants to a second trial under the facts here would constitute double jeopardy. Therefore, we order that the respondents be prohibited from proceeding to another trial.

Petitioners were charged with rape and conspiracy to commit rape and brought to trial before a jury. Petitioner Espinoza was represented by private counsel and Petitioner Salazar was represented by the public defender.

During the course of the trial while the public defender was engaged in cross-examination of a prosecution witness, the respondent judge stopped the cross-examination and instructed counsel to proceed to chambers. The respondent judge during the conference in chambers warned defense counsel about making speeches to the jury during cross-examination and that if it occurred again, a mistrial would be declared and sanctions would be imposed against defense counsel. The question which precipitated the judge's concern occurred during the cross-examination of the alleged victim. It involved occurrences after the alleged commission of the rapes when the victim was returned to town and when her father was observed in another car. The question as shown from the record was:

'Q. And at that time Andrew, who was siphoning gas out of the car--Toastie Barela's car--he wasn't stealing gas or anything, he then walked up to your dad--'

The respondent judge also complained about the delays involved in the trial and then remarked 'I don't know what you are trying to do, but I am going to leave here at noon tomorrow. That's how much time we have allotted to the case, 2 1/2 days, and then I am going to leave.' There is no indication from the portions of the record before us that the district attorney made any objection regarding the manner in which defense counsel was cross-examining witnesses. The foregoing occurred on the second full day of trial.

On the following day, after the conclusion of testimony, and after the district attorney had completed his closing argument to the jury, the public defender proceeded with his closing argument on behalf of both of the petitioners. From the record, it is estimated that about 30 minutes of argument had elapsed when the respondent judge halted the argument and directed counsel to his chambers. The following pertinent colloquy between the respondent judge and the public defender then took place in chambers:

'BY THE COURT:

Mr. McClure, I say this advisedly and coolly and calmly. I have never heard a more distorted speech to the jury, one that was more intended to inflame them. I will not stand for it.

This will be a mistrial based upon your remarks to the jury so far. I had intended to let them go to the conclusion, but they can't go any further. I just can't. Plus the fact that you have based your whole case upon the credibility of the complaining witness.

'BY MR. McCLURE: (Public Defender)

No, I haven't, your Honor.

'BY THE COURT:

Yes, you have. That's what you said in your statement. Now, please let me finish, if you would, please.

And then your witness yesterday attacked an indirect way that you couldn't get in, her credibility and I almost gave a mistrial then, and I should have. This is also part of the reason. There was a reaction from the jury. I heard a reaction at that particular moment and I should have declared a mistrial then.

'BY MR. GREEN: (District Attorney) If the Court please, I would like the record to show that The People, with all deference to the Court's opinion, would like for this case--after it has gone this far and with only a short time to go--to let it go to the jury.'

From this and the other comments, it appears that the judge's concern here centered about the public defender's closing statements to the jury that certain physical evidence that would have corroborated the alleged victim's story had not been presented in the trial. Specifically, the public defender commented that the prosecution had not introduced bloody, torn panties, or a broken zipper, which would have suggested forcible rape.

At this point, it appears from the record that the respondent judge retreated from his previous declaration of a mistrial and agreed that the defense argument could continue...