People By and Through VanMeveren v. District Court In and For Larimer County

Decision Date03 February 1975
Docket NumberNos. 26590,26644,s. 26590
Citation187 Colo. 333,531 P.2d 626
PartiesThe PEOPLE of the State of Colorado, By and Through their duly elected and appointed representatives, Stuart A. VanMEVEREN, District Attorney, and Loren B. Schall, Assistant District Attorney, Eighth Judicial District, State of Colorado, Petitioners, v. The DISTRICT COURT IN AND FOR the COUNTY OF LARIMER, State of Colorado, and the Honorable Conrad L. Ball, one of the judges thereof, Respondents. Frank Otto BELLMANN, Petitioner, v. The DISTRICT COURT IN AND FOR the COUNTY OF ARAPAHOE IN the EIGHTEENTH JUDICIAL DISTRICT and the Honorable Richard D. Greene, Judge thereof, Respondents.
CourtColorado Supreme Court

Richard D. Greene, Judge thereof, Respondents.

Nos. 26590, 26644.

Supreme Court of Colorado, En Banc.

Feb. 3, 1975.

Stuart A. VanMeveren, Dist. Atty., Loren B. Schall, Asst. Dist. Atty., Fort Collins, for petitioners, in No. 26590.

Rollie R. Rogers, Colorado State Public Defender, Denver, James F. Dumas, Jr., Chief Deputy State Public Defender, Edwin L. Felter, Jr., Douglas D. Piersel, Deputy State Public Defenders, Fort Collians, for respondents in No. 26590.

Tague, Goss, Schilken & Beem, P.C., P. Arthur Tague, Littleton, for petitioner in No. 26644.

Robert R. Gallagher, Jr., Dist. Atty., James F. Macrum, Jr., Chief Deputy Dist. Atty., Ethan D. Feldman, Deputy Dist. Atty., Littleton, for respondents in No. 26644.

ERICKSON, Justice.

These original proceedings require that we determine whether Crim.P. 16 II(b) and (c), which provide the prosecution with discovery rights in a criminal case, can withstand constitutional attack. The issue is framed in two separate cases which reflect different interpretations and rulings on the constitutionality of our rule. We have consolidated the cases for the purpose of this opinion. Subject to the constitutional limitations which are set forth in this opinion, we hold that Crim.P. 16 II(b) and (c) provide a constitutional means for the prosecution to obtain discovery from a defendant or his counsel in a criminal case. We make the rule absolute in both cases. Our remand contains full directions for the respective trial courts.

In Bellmann v. District Court, the defendant petitioned this court for relief in the nature of prohibition. He was charged in an information with manslaughter (1971 Perm.Supp., C.R.S.1963, 40--3--104), vehicular homicide (1971 Perm.Supp., C.R.S.1963, 40--3--106), three counts of vehicular assault (1971 Perm.Supp., C.R.S.1963, 40--3--205), driving under the influence of intoxicating beverages (1971 Perm.Supp., C.R.S.1963, 13--5--30), and two counts of third-degree assault (1971 Perm.Supp., C.R.S.1963, 40--3--204). Pursuant to Crim.P. 16, the district attorney filed a motion for discovery and endeavored to determine the nature of the defense which the defendant intended to offer at the time of trial, the names and addresses of witnesses which the defendant intended to call in support of his defense, and the reports of the defendant's expert witnesses. The prosecution also sought an order which would impose a continuing duty to disclose information which might be acquired at a later time and would fall within the scope of the original request. The trial court granted the district attorney's motion without a hearing. The defendant then petitioned this court for a writ of prohibition to prevent the trial court from enforcing the discovery order. We issued a rule to show cause and now make the rule absolute.

In People v. District Court, the defendant Bush was charged in an information with second-degree kidnapping (1971 Perm.Supp., C.R.S.1963, 40--3--302) and harassment (1971 Perm.Supp., C.R.S.1963, 40--9--111). Following a finding of probable cause at a preliminary hearing, the trial court heard the district attorney's motion for discovery. The district attorney sought discovery of reports made by the defendant's expert witnesses, the nature of the defense which was going to be offered at the time of trial, together with the names and addresses of all defense witnesses, and copies of the witnesses' written statements. The trial judge denied the motion on the ground that Crim.P. 16 II(b) and (c) were unconstitutional invasions of the defendant's right to remain silent. The district attorney petitioned for a writ of mandamus to compel the trial judge to order discovery in compliance with the Colorado rule. We issued a rule to show cause and now make the rule absolute.

I. The Basis for Discovery in a Criminal Case

Trial by ambush, or the old fox-and-hounds approach to litigation, does not promote accuracy or efficiency in the search for truth. See Dennis v. United States, 384 U.S. 855, 86 S.Ct. 1840, 16 L.Ed.2d 973 (1966); Robles v. People, 178 Colo. 181, 496 P.2d 1003 (1972); Parlapiano v. District Court, 176 Colo. 521, 491 P.2d 965 (1971); State v. Peterson, Iowa, 219 N.W.2d 665 (1974); State ex rel. Keller v. Criminal Court, Ind., 317 N.E.2d 433 (1974); 1 Cipes, Criminal Defense Techniques, chs. 10 & 11 (Matthew Bender & Co. 1973); Louisell, Criminal Discovery: Dilemma Real or Apparent?, 49 Calif.L.Rev. 56 (1961); Strayhorn, Full Criminal Discovery in Illinois, 56 Judicature 279 (1973).

In 1966, the Federal Rules of Criminal Procedure were amended to grant broad discovery rights to the defendant and reciprocal rights of discovery to the prosecution. Fed.R.Crim.P. 16. See generally Erickson, Discovery in Criminal Cases, in How to Defend a Criminal Case from Arrest to Verdict 131 (Lawyer & George eds. 1967).

In Dennis v. United States, 384 U.S. 855, 86 S.Ct. 1840, 16 L.Ed.2d 973 (1966), Justice Brennan recognized that persuasive arguments existed to cause discovery in a criminal case to be akin to that afforded to the parties in a civil action. The Proposed New Amendments to the Federal Rules of Criminal Procedure tend to equate discovery in a criminal case to the discovery rights granted in a civil action, but recognize that constitutional prohibitions protect the defendant's right to remain silent. See 42 U.S.L.W. 45, 53--56.

Colorado, in adopting liberal discovery procedures, followed the procedures recommended by the American Bar Association in the ABA Standards Relating to Discovery and Procedure Before Trial. See also National Advisory Commission Standards, Courts 4.9 Pretrial Discovery; Note, Criminal Discovery--Comparison of Federal Discovery and the ABA Standards with the New Statutory Provisions in Wisconsin, 1971 Wis.L.Rev. 614. The cloak of secrecy has been removed from the criminal justice proces by the adoption of Crim.P. 16. Crim.P. 16 II(b) and (c) provide:

'(b) Medical and Scientific Reports.

'Subject to constitutional limitations, the trial court may require that the prosecuting attorney be informed of and permitted to inspect and copy or photogaph any reports or statements of experts, made in connection with the particular case, including results of physical or mental examinations and of scientific tests, experiments or comparisons.

'(c) National of Defense.

'Subject to constitutional limitations, the trial court may require that the prosecuting attorney be informed of the nature of any defense which defense counsel intends to use at trial and the names and addresses of persons whom defense counsel intends to call as witnesses in support thereof. Upon receipt of the information required by this subsection (c), the prosecuting attorney shall notify defense counsel of any additional witnesses which he intends to call to rebut such defense within a reasonable time before trial after their identity becomes known.'

II. Self-Incrimination

If Crim.P. 16 is to pass constitutional muster on the self-incrimination issue, each section of the rule must satisfy the test enunciated by the Supreme Court of the United States in Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970). In Williams, the Florida notice-of-alibi statute was upheld and found not to be an infringement upon the defendant's right to remain silent, because the discovery which was ordered was limited to those matters which would eventually be revealed at trial. Since only the time of disclosure was in issue in the Williams case, the defendant could not raise a successful constitutional argument. Thus, the Supreme Court upheld the constitutionality of a Florida statute which required the defendant not only to give notice of his intention to rely on the alibi defense at trial, but also to divulge the witnesses which the defendant intended to call at the time of trial to support his alibi defense. In reaching the constitutional issue, the Court said:

'Nothing in the Fifth Amendment privilege entitles a defendant as a matter of constitutional right to await the end of the State's case before announcing the nature of his defense, any more than it entitles him to await the jury's verdict on the State's case-in-chief before deciding whether or not to take the stand himself.'

The nature of our advesary system of justice is such that in the course of trial, a defendant voluntarily divulges the information sought at the time of trial, and for that reason alone, it is proper and reasonable to allow the district attorney to have advance access to it. See Jones v. Superior Court, 58 Cal.2d 56, 22 Cal.Rptr. 879, 372 P.2d 919 (1962); People v. Pike, 71 Cal.2d 595, 78 Cal.Rptr. 672, 455 P.2d 776 (1969); Traynor, Ground Lost and Found in Criminal Discovery, 39 N.Y.U.L.Rev. 228 (1964).

The constitutional arguments center on the claim that a defendant who is forced by court order to comply with the rule will be compelled to furnish a link in the chain of evidence which incriminates him and which the prosecution must prove without his assistance. Hoffman v. United States, 341 U.S. 479, 71 S.Ct. 814, 95 L.Ed. 1118 (1951); Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886). The traditional view is that the privilege against self-incrimination extends only to testimonial or communicative utterances. United States v. Cohen, 388 F.2d 464 (9th Cir. 1967). The privilege does not...

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