Hutchinson v. People

• Decision Date: 08 September 1987
• Docket Number: No. 85SC510,85SC510
• Citation: 742 P.2d 875
• Parties: Ronald HUTCHINSON, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.
• Court: Colorado Supreme Court

Page 875

742 P.2d 875

Ronald HUTCHINSON, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.

No. 85SC510.

Supreme Court of Colorado En Banc.

Sept. 8, 1987.

Rehearing Denied Oct. 5, 1987.

David F. Vela, Colorado State Public Defender, Richard A. Hostetler, Sp. Deputy Public Defender, Denver, for petitioner.

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., David R. Little, Asst. Atty. Gen ., Denver, for respondent.

ROVIRA, Justice.

We granted certiorari to review an unpublished opinion of the court of appeals that affirmed the Denver District Court convictions of the defendant, Ronald Hutchinson, for second-degree forgery, § 18-5-103, 8B C.R.S. (1978 & 1983 Supp.), and conspiracy to commit second-degree forgery, § 18-2-201, 8B C.R.S. (1978). Certiorari was granted to consider whether the disclosure to and use by the prosecution at trial of the defendant's handwriting samples obtained by a defense-retained expert and the statements, opinions, and conclusions of the expert violated the confidentiality protected by the defendant's attorney-client privilege, his constitutional right to effective assistance of counsel, his constitutional privilege against self-incrimination, and the confidentiality protected by the work-product doctrine. We now reverse defendant's convictions on the grounds that the trial court's decision to permit the prosecution to call the defense-retained expert in its case-in-chief absent waiver or compelling justification denied the defendant his constitutional right to effective assistance of counsel.

I.

On January 13, 1983, a man entered a branch of the Union Bank in Denver and asked the receptionist for a blank check. When the receptionist asked if he had checks ordered, the man replied that his wife had done so. The receptionist directed the man to the second floor of the bank. He then stated that he had changed his mind and that he only needed deposit slips. The man took several blank slips and departed. The receptionist did not recognize the man as a regular customer and thought that he seemed uncomfortable and that his actions were suspicious. At trial, she identified the defendant as the person whom she had observed in the bank. The receptionist's supervisor informed the bank's head teller that a suspicious man had taken some blank deposit slips. The head teller immediately alerted the teller at the branch's drive-in window to be aware of any person using a blank deposit slip.

Shortly thereafter, the drive-in window teller observed a man who matched the general description given by the head teller drive up to one of the pneumatic tubes used to transact business at the drive-in window. The teller observed a woman with short dark hair in the passenger side of the car and no one in the back seat. The man put two checks made out to Pauline Pine and a deposit slip into the pneumatic tube carrier and sent the carrier to the teller. The deposit slip indicated that $200 was to be deposited and $287 was to be returned in cash. The teller compared the signature on the deposit slip with the one on file for the account. Although the signature on the deposit slip appeared authentic, the teller was suspicious because of the alert she had received from the head teller. She told the parties in the car that they would have to deposit both checks and wait to withdraw cash until the checks were paid by the drawee bank. The woman in the car requested the teller to return the checks. The teller complied, and the parties drove away. The teller identified the defendant as the man in the car who put the checks in the carrier.

A short time later a drive-in teller at a second Denver branch of the Union Bank observed a male and a Hispanic female drive up to the pneumatic tubes. A child under ten years of age was in the back seat of the car. The male presented checks for deposit that bore the same name as the checks that had been presented at the first branch. The parties making the deposit also wanted cash back on the deposit. The teller requested identification because the first branch had advised her that two individuals had tried to deposit allegedly stolen checks and withdraw cash. The teller heard the pair confer. The man then told the teller that the woman had left all identification at home. The teller confirmed that the signatures on the checks and deposit slip appeared to match the signature on file for the account; however, she informed the parties that without identification they only could deposit the entire amount and not receive any cash. The pair left the checks with the teller and departed. The teller noted the license plate number of the vehicle.

The second drive-in teller's supervisor identified the defendant as the man who participated in the transaction. The supervisor recalled, however, that the signatures presented during the transaction did not match the one on file. Further, she described the woman in the car as a light-skinned black woman. The supervisor also noted that she had met Pauline Pine's husband on one occasion and knew that the man was not her husband.

The checks presented for deposit on both occasions were issued to and endorsed in the name of Pauline Pine. The checks were presented for partial deposit to her bank account. Pine testified at trial that she neither endorsed the checks nor filled out the deposit slips, nor gave anyone permission to sign her name or use her account. She also stated that prior to January 13, 1983, a cancelled salary check previously issued to her had been stolen from her employer. Pine's signature, the name of her bank, and her bank account number were endorsed on the stolen check. The two checks the defendant presented for deposit were drawn on the accounts of Mark Bove and Edward Robinson. They had reported the checks as stolen. Bove and Robinson did not make out or sign and had not given anyone permission to complete or sign the checks.

The defendant's wife testified that her friend, Terry Smith, had requested the defendant and his wife to take Smith past her bank so that she could deposit some checks. Smith, according to the defendant's wife, was in the back seat of the car with the defendant's young son. The defendant, as the driver of the car, placed Smith's checks in the carrier and spoke with the teller. When the first branch of Smith's bank would not give her cash, the defendant drove Smith to another branch and again placed her checks in the carrier and spoke with the teller.

The defendant's fingerprint was on one of the checks, and the defendant conceded that he had passed the checks; he claimed, however, that he had passed the checks at the request of another person. The effect of his defense was a denial that he wrote the checks or knew that the checks were invalid. The People argued that the defendant had forged the writing on the checks and presented them for payment. Thus, a key issue in the case was the identity of the person who wrote the checks and the deposit slips.

Prior to trial, defense counsel sought authority to retain, at state expense, an expert in handwriting analysis in order to consult with the expert to prepare the cross-examination of prosecution witnesses and to conduct an independent analysis of the handwriting evidence. The trial court granted the motion and a prosecution motion requesting authority to obtain fingerprints and handwriting exemplars from the defendant.

Subsequently, the People requested the district court to allow the prosecution to call the handwriting expert retained by the defense, Rolland Osborne, as a witness on behalf of the People. Defense counsel stated that the defense had decided not to call the expert and opposed the People's request. The court ruled that the attorney-client privilege protected any communication between the defendant and the defense-retained expert and denied the prosecution's request. The case proceeded to trial, and the court declared a mistrial on July 15, 1983, when the jury was unable to reach a verdict.

Before the second trial began on July 26, 1983, the trial court reversed its decision regarding the People's use of the defense-retained expert. The court ruled that under Crim.P. 16(II)(b), the court may require the defendant to disclose to the prosecution the reports or statements of the expert and the results of scientific tests, experiments, or comparisons even though the defendant did not intend to call the expert to testify at trial. The court further ruled that the privilege against self-incrimination, the attorney-client privilege, and the work-product doctrine did not protect the defense-retained expert from becoming the prosecution's witness. The court determined that the prosecution's examination of Osborne would exclude any communication between him and the defendant or defense counsel, including any advice or consultation; Osborne's testimony, however, could include his analysis of the handwriting exemplar.

Three handwriting experts testified at the second trial. The first expert, a Denver police officer, described how he had obtained a handwriting exemplar from the defendant. The expert believed that the defendant had disguised his handwriting because he had required excessive time to complete the sample, which was characterized by broken and shaky writing. Although the expert could not give any opinion as to whether the defendant had written the questioned checks, he stated that the handwriting from the defendant's exemplar was similar to the writing on the checks in several respects. The second handwriting expert, another police officer, also testified that he could not form an opinion based on the defendant's exemplar because it contained tremors, pauses, and hesitations. These characteristics indicated that the exemplar had been deliberately produced and did not represent the natural writing of its author, according to the second expert.

Osborne, the...