Paul v. People, No. 03SC668.

• Decision Date: 31 January 2005
• Docket Number: No. 03SC668.
• Citation: 105 P.3d 628
• Parties: Petitioner/Cross-Respondent: Kevin PAUL, v. Respondent/Cross-Petitioner: The PEOPLE of the State of Colorado.
• Court: Colorado Supreme Court

105 P.3d 628

Petitioner/Cross-Respondent: Kevin PAUL, v. Respondent/Cross-Petitioner: The PEOPLE of the State of Colorado.

No. 03SC668.

Supreme Court of Colorado, En Banc.

January 31, 2005.

The Law Firm of Ted Hess, P.C., Theodore G. Hess, Glenwood Springs, for Petitioner/Cross-Respondent.

John W. Suthers, Acting Attorney General, Monica M. Marquez, Assistant Attorney General, Criminal Justice Section, Appellate Division, Denver, for Respondent/Cross-Petitioner.

COATS, Justice.

Both the People and defendant Kevin Paul petitioned for review of various aspects of the court of appeals judgment affirming the trial court's refusal to dismiss criminal charges following a mistrial. People v. Paul, 83 P.3d 1171 (Colo.App.2003). The trial court denied without comment Paul's pretrial motion asserting former jeopardy. The court of appeals agreed with Paul that the denial of his motion was an immediately appealable order, but it affirmed the lower court judgment, holding that Paul implicitly consented to the mistrial by failing to expressly object and that there was, in any event, manifest necessity for ordering a mistrial.

Although denial of the defendant's pretrial motion was not an immediately appealable order, we choose to exercise our original jurisdiction pursuant to C.A.R. 21, and we hold that under the circumstances of this case, the court's declaration of a mistrial was neither consented to nor justified by manifest necessity. The judgment of the court of appeals is therefore reversed and remanded with instructions to order the charges dismissed.

I.

Kevin Paul was charged with vehicular assault¹ and driving under the influence.² Twelve days before trial, the People moved to strike the defendant's accident reconstruction expert on the grounds that the defendant's disclosures were untimely and incomplete. Six days before trial, the trial court heard the motion but made no ruling.

At a conference two days before trial, the court again addressed the People's motion to strike, stating that it felt sand-bagged by defense counsel and finding defense disclosures incomplete. The court offered the People a continuance with sanctions, including payment for all trial preparation costs and unused airline tickets. The People rejected this proposal, and the issue remained unsettled.

On the fifth day of trial, the defense called its expert to testify, and the People renewed their motion to strike. At that point, the court informed the parties that that they could either request a continuance or it could declare a mistrial. Indicating that the trial should already have been over, that it was late in the day, and that it was doubtful whether trial could finish by the next day, the court ignored a suggestion by the People that the witness' testimony be limited as a sanction, and instead restated the same two options to the parties. The prosecuting attorney responded that he was not requesting either alternative, and defense counsel similarly responded, "Nor do I." The court then declared a mistrial sua sponte. No further objection was voiced by either party, and the court gave the following explanation to the jury:

I have a lot of questions as to whether or not we can get through with this lawsuit tomorrow. Now, tomorrow will be the third additional day. We were scheduled for three days to begin with. Tomorrow is the third day. Miss Key, who was deemed the alternate, was released because she had an activity planned with her daughter, and I think that some of the rest of you had activities planned as well. In light of all that, I have decided to declare a mistrial, so your services are no longer needed.

Prior to the commencement of a second trial, the defendant moved to dismiss the charges, asserting former jeopardy as a bar. The trial court orally denied the motion, and the defendant directly appealed to the court of appeals. Finding that Colorado recognizes the federal collateral order exception to the final judgment rule and that the defendant had an immediate right to appeal, the court of appeals nevertheless upheld denial of the motion, ruling that the defendant consented to the mistrial by failing to expressly object. The court of appeals also held that the defendant's incomplete disclosures and the prosecutor's resulting inability to effectively cross-examine the defense expert amounted to manifest necessity.

We issued a writ of certiorari to review the merits of the judgment, as well as the appealability of the trial court's ruling.

II.

Generally, finality of judgment has been required as a predicate for federal appellate jurisdiction. See, e.g., Abney v. United States, 431 U.S. 651, 656, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977)

. The United States Supreme Court has long recognized, however, that certain collateral orders amount to "final decisions" within the meaning of 28 U.S.C. section 1291 (2000), and are therefore immediately appealable, despite not terminating the entire case. See Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949) (articulating the collateral order doctrine). The Supreme Court has expressly included among these immediately appealable collateral orders the denial of pretrial motions to dismiss criminal charges on double jeopardy grounds. Abney, 431 U.S. at 662,

97 S.Ct. 2034. At the same time, however, it has made clear that its collateral order doctrine is not a matter of constitutional necessity and, in accord with principles of federalism, is not binding on the states. Johnson v. Fankell, 520 U.S. 911, 916-18, 117 S.Ct. 1800, 138 L.Ed.2d 108 (1997).

Except as expressly provided by statute or rule, appellate jurisdiction in Colorado is also generally limited to final judgments. See C.A.R. 1(a); see also § 13-4-102(1), C.R.S. (2004). For various reasons, the general assembly has designated certain classes of orders sufficiently final for purposes of appealability. See, e.g., § 16-12-102, C.R.S. (2004). In addition, this court has recognized that cases may be divided into separate charges or claims, the resolution of some of which may be sufficiently final to qualify for an immediate appeal. See, e.g., People v. Gallegos, 946 P.2d 946, 950 (Colo.1997)

; C.R.C.P. 54(b), C.R.S. (2004).

We have even adopted the federal collateral order exception under the limited circumstances in which a federal cause of action pursuant to 42 U.S.C.1983 is permitted in state court and an order denying qualified immunity in such an action would be immediately appealable if it were tried in federal court. Furlong v. Gardner, 956 P.2d 545 (Colo.1998). As we explained in Furlong, a public entity's or employee's motion for summary judgment based upon sovereign immunity is expressly permitted by statute. See Colorado Governmental Immunity Act, §§ 24-10-101 to -120, C.R.S. (2004). Although the federal collateral order doctrine does not apply to state court judgments, we reasoned that disparate treatment of the appealability of a motion to dismiss asserting qualified immunity in a section 1983 action would violate principles of neutrality and raise questions of federal preemption. Id. at 550-51 (explaining Lakewood v. Brace, 919 P.2d 231 (Colo.1996)).

We have never held, however, that the federal collateral order exception, interpreting the meaning of "final decisions," as that term appears in 28 U.S.C. section 1291, is equally applicable to the interpretation of "final judgments," as that term is used in C.A.R. 1(a); and we have particularly not held that the collateral order exception governs the appealability of orders denying pre-trial motions to dismiss on double jeopardy grounds.

In County Court v. Ruth, 194 Colo. 352, 575 P.2d 1 (1977), this court acknowledged that federal law treats an order denying a pre-trial motion to dismiss on double jeopardy grounds as an immediately appealable collateral order, and that the rationale for that decision would appear to apply as well to other pre-trial motions challenging the very jurisdiction of the court to proceed. The issue before this court in Ruth, however, was whether an exercise of the district court's original jurisdiction to grant or deny a writ of prohibition pursuant to 106(a)(4) was itself an appealable order; and if so, whether the district court's refusal to entertain the merits of a 106 complaint would also deprive a reviewing court of jurisdiction to address the merits. Id. Answering both questions in the affirmative, we declined to address the merits of the joinder issue considered by the court of appeals, and instead remanded with instructions for the district court to issue a citation to show cause to the trial court, as required by then existing C.R.C.P. 106(a)(4). Id. at 357, 575 P.2d at 4.

In addition, however, we noted that the actual issuance of a writ of prohibition by the district court on remand would be an appropriate remedy only if the trial court's refusal to dismiss was not an immediately appealable order, id. at 355-56, 575 P.2d at 3; and despite our remand to issue a citation pursuant to C.R.C.P. 106, we openly advised the district court that the federal rule in Abney raised questions about our prior presumption that pre-trial motions to dismiss were not immediately appealable. Id. at 356, 575 P.2d at 3. By our remand order, we made clear that we were not answering the question whether denial of the motion to dismiss was immediately appealable. Id. at 357, 575 P.2d at 4. By addressing the merits of the defendant's joinder motion in a C.R.C.P. 106 proceeding on remand, and actually issuing a writ of prohibition, the district court similarly did not find the order immediately appealable, and the issue was therefore not before this court upon recertification. See Ruth v. County Court in and for El Paso County, 198 Colo. 6, 595 P.2d 237 (1979)

.

The question suggested in Ruth has remained unanswered for nearly a quarter of a century, and the presumption that such orders are not immediately...