Gelfand v. People, C-1470

• Decision Date: 27 November 1978
• Docket Number: No. C-1470,C-1470
• Citation: 196 Colo. 487,586 P.2d 1331
• Parties: Thelma GELFAND, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.
• Court: Colorado Supreme Court

Page 1331

586 P.2d 1331

196 Colo. 487

Thelma GELFAND, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.

No. C-1470.

Supreme Court of Colorado, En Banc.

Nov. 27, 1978.

G. Philip Bryson, Longmont, for petitioner.

J. D. MacFarlane, Atty. Gen., David W. Robbins, Deputy Atty. Gen., Edward G. Donovan, Sol. Gen., Robert C. Lehnert, Asst. Atty. Gen., Denver, for respondent.

CARRIGAN, Justice.

The defendant Gelfand was convicted by a jury of theft in violation of section 18-4-401, C.R.S.1973. The court of appeals affirmed the conviction and we granted certiorari. Here the defendant seeks reversal on the grounds: (1) that she was denied a speedy trial, and (2) that the trial court erred in admitting, as part of the prosecution's case-in-chief, incriminating statements she had made to a probation officer in the course of plea negotiations. We reject the defendant's speedy trial contentions. However, we hold that the trial court improperly admitted her incriminating statements made during plea negotiations, and therefore she is entitled to a new trial.

I.

We first address the assertion that the defendant was denied her constitutional right to a speedy trial. Discounting excludable delays attributable to the defendant, she was tried within the prescribed six months after entering her not guilty plea. Section 18-1-405, C.R.S.1973; Crim.P. 48(b). Nevertheless she is not precluded from asserting her Constitutional right to a speedy trial simply because the trial was held within the required six months period. U.S.Const. Amend. VI; Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967) (applying federal constitutional speedy trial requirement to states); Colo.Const. Art. II, sec. 16. The defendant, however, has the burden of proving that her constitutional speedy trial right has been denied. Ziatz v. People, 171 Colo. 58, 465 P.2d 406 (1970); Casias v. People, 160 Colo. 152, 415 P.2d 344 (1966).

The circumstances of each case must be examined to determine whether a speedy trial has been afforded. Medina v. People, 154 Colo. 4, 387 P.2d 733 (1963). In making this determination the court must consider the length of the pretrial delay, the reasons for it, whether the defendant has demanded a speedy trial, and whether any prejudice actually resulted to the defendant. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); Potter v. District Court, 186 Colo. 1, 525 P.2d 429 (1974); People v. Spencer, 182 Colo. 189, 512 P.2d 260 (1973). None of those four factors is indispensable to a finding that speedy trial has been denied. Nor is any one of them Ipso facto sufficient to require such a finding. Rather all are interrelated and must be considered together with any other relevant circumstances. Constitutional speedy trial cases must be decided on an Ad hoc basis applying a balancing test which considers the conduct of both the prosecution and the defendant. Barker v. Wingo, supra.

Although the defendant made timely objections to prosecution continuances and moved for dismissal prior to commencement of trial, the record reflects that she either requested or agreed to many of the delays. The continuances requested by the prosecution were justified, for the prosecution's chief witness was hospitalized and too ill to bear the stress of testifying. ¹

The defendant argues that she was unfairly prejudiced because, after the trial date originally set, the court allowed the prosecution to endorse additional witnesses and to obtain an exemplar of her handwriting. While it is no doubt true that this additional evidence "prejudiced" the defendant's case, it did so only in the sense that all prosecution evidence indicating guilt is unfavorable to a defendant. ² She has failed to show, however, that the delay was unfairly sought or was employed to deny her a fair trial. See Ziatz v. People, supra.

Our review of the record and the circumstances of the case in light of the balancing test prescribed by Barker v. Wingo, supra, leads us to conclude that the defendant was not denied her constitutional right to a speedy trial.

II.

Upon the advice of counsel, the defendant entered into plea negotiations and applied for disposition of her case by deferred sentencing pursuant to section 16-7-403, C.R.S.1973 (1977 Supp.) A policy of the Weld County district attorney required that every defendant who sought deferred sentencing be interviewed and evaluated by the probation department. During Gelfand's interview, she made statements to the probation officer which implicated her in the crime.

Before a plea agreement was formally concluded, the defendant withdrew from the negotiations and entered a not guilty plea. At trial the probation officer was called as a witness in the prosecution's case-in-chief, and testified over objection to the substance of the defendant's incriminating statements.

The defendant here maintains that it was error to allow the prosecution to use her statements against her as substantive proof of guilt. We agree with her contention.

In view of the general public policy to encourage the efficient and economical administration of criminal justice, plea negotiations for the purpose of reaching plea agreements have become accepted as a legitimate means of promptly and fairly settling criminal cases. People v. White, 182 Colo. 417, 514 P.2d 69 (1973); Sections 16-7-301 through 303, C.R.S.1973 (1977 Supp.); ³ A.B.A. Standards Relating to Pleas of Guilty § 3.1. See also Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978). Plea compromises eliminate the need for expensive and time-consuming public trials in many cases. The defendant by a guilty plea aids in ensuring the prompt and certain application of correctional measures and, by removing his or her case from the court's backlog, helps to avoid delay in disposing of other cases. A.B.A. Standards Relating to Pleas of Guilty § 1.8.

If the effectiveness and integrity of the plea bargaining process are to be preserved, admissions or confessions made in connection with plea offers and negotiations must not be admitted as independent substantive evidence of guilt. ⁴ The defendant should not be penalized for cooperating with the prosecution by engaging in an approved plea negotiation process which is consistent with the objectives of the criminal justice system.

Here the defendant's statements were made for the narrowly limited purpose of assisting the district attorney and the court in determining whether she was an appropriate candidate for deferred sentencing. The probation department interview at which the statements were elicited was not requested by the defendant but was required by the prosecutor as a precondition to the defendant's being considered for deferred sentencing. When the statements were elicited, it was contemplated by both sides that they would have no probative effect on the issue of guilt or innocence, for both parties then assumed that a guilty plea would be entered. At that time neither party was bound by a plea agreement; either was free to withdraw from negotiations and insist on going to trial. When the defendant did withdraw from the plea negotiations, thus aborting the only purpose for which her inculpatory statements had been given, it was palpably unfair to allow the prosecution to use those statements against her for an entirely unintended purpose, to prove her guilt.

The fundamental unfairness of the situation can be better appreciated by considering the practical dilemma in which the defendant was placed. In order to receive a favorable probation department recommendation of eligibility for deferred sentencing, it was essential that the defendant acknowledge her guilt, demonstrate remorse, and evince willingness to assume responsibility for her misconduct. Had she refused to discuss her involvement in the incident giving rise to the charges, her lack of candor, contrition and cooperation probably would have led to a negative recommendation by the probation officer. Such an attitude would have marked her as a poor risk for deferred sentencing.

If the courts were to allow an admission or confession incident to plea negotiations to be used in the prosecution's case-in-chief to seek a conviction, and not solely to determine eligibility for deferred sentencing, competent defense lawyers would have to advise their clients not to reveal in the course of plea discussions their involvement in criminal conduct. The inevitable result would be to chill and inhibit...