People ex rel. Gallagher, In and For Eighteenth Judicial Dist. v. District Court In and For Arapahoe County

• Decision Date: 27 June 1983
• Docket Number: No. 83SA1,83SA1
• Citation: 666 P.2d 550
• Parties: The PEOPLE of the State of Colorado ex rel. Robert R. GALLAGHER, Jr., District Attorney In and For the EIGHTEENTH JUDICIAL DISTRICT, Petitioner, v. The DISTRICT COURT In and For the COUNTY OF ARAPAHOE, State of Colorado, and the Honorable John P. Gately, one of the Judges Thereof, Respondents.
• Court: Colorado Supreme Court

Page 550

666 P.2d 550

The PEOPLE of the State of Colorado ex rel. Robert R GALLAGHER, Jr., District Attorney In and For the EIGHTEENTH JUDICIAL DISTRICT, Petitioner, v. The DISTRICT COURT In and For the COUNTY OF ARAPAHOE, State of Colorado, and the Honorable John P. Gately, one of the Judges Thereof, Respondents.

No. 83SA1.

Supreme Court of Colorado En Banc.

June 27, 1983.

Robert R. Gallagher, Jr., Dist. Atty., James C. Sell, Chief Deputy Dist. Atty., Littleton, for petitioner.

Davis & Fritsche, William J. Fritsche, Aurora, for respondents.

ROVIRA, Justice.

This is an original proceeding brought by the People (petitioner), pursuant to C.A.R. 21, for a writ to prohibit the respondent trial court from enforcing its order granting the defendant Brewer's motion to suppress the identification testimony of Murray Dugger. ¹ We issued a rule to show cause and now discharge the rule.

I.

Ronald Ray Brewer (Brewer) and Sheila Anderson (Anderson) were charged with aggravated robbery, conspiracy to commit aggravated robbery, theft, and felony menacing in connection with armed robberies of the Buckingham Broker restaurant and an Albertson's store in September 1981. At their combined preliminary hearing, Albertson's store manager, Murray Dugger, identified Brewer as the man who robbed the store. He testified that he was face-to-face with Brewer for five to ten seconds at the initial confrontation and subsequently "got another look" for a couple of seconds when he was instructed to turn around and walk to the back of the store. ² Based in part on Dugger's testimony, the respondent found probable cause to believe that Brewer and Anderson committed both robberies but did not make a separate ruling as to the admissibility of Dugger's testimony. The court subsequently granted defendant's motion for severance as to both the defendants and the counts, which necessitated four separate trials.

At Brewer's June 1982 trial for the Buckingham Broker robbery, the prosecution presented Dugger as a witness for the purpose of establishing the defendant's identity for the similar transaction at the Albertson's store. At an in camera hearing, Dugger testified that a person approached him from the rear while he was standing by the store safe and, when he turned, a man with a gun ordered him to turn around. He stated that he was approximately two feet from the robber, the lighting was excellent, and he had four or five seconds to observe the person. He further testified that after the money was taken he was ordered to walk to the back of the store and as he turned he had another four or five seconds to see the man with the gun. Following the in camera hearing, the respondent ruled that Dugger's identification was based upon his independent observations of Brewer during the Albertson's robbery and was not tainted. ³ Nevertheless, the respondent refused to admit the testimony for purposes of establishing a similar modus operandi. ⁴

In September 1982, Dugger testified as to the identity of Brewer in the trial of Anderson for the Albertson's robbery. ⁵ After an in camera suppression hearing, the trial court ruled that Dugger's identification was based upon his observations of Brewer during the Albertson's robbery and that his identification of Brewer's photograph was based upon independent recollection. The court also ruled that there was no undue suggestion in the manner in which the photographic lineup had been conducted and Dugger's identification of Brewer's photograph was without taint.

On December 13, 1982, during an in camera suppression hearing preceding Brewer's trial on the Albertson's robbery charge, Dugger testified for yet a fourth time and identified Brewer as the man who robbed him. He testified that just after 7:30 a.m. on August 6, 1981, as he was preparing to return the cash receipts from the previous day to the safe, he was aware of a person standing behind him. He turned to ask the person if he needed help and was able to observe the man for approximately two seconds. ⁶ The man waved a blue, small-caliber handgun at him and told him to face the safe and be quiet, whereupon a young, slender black woman came forward and put the money into a large, powder-blue purse. After she walked out of the store, the man told the manager to walk to the back of the store. As he turned, Dugger started to shut the safe door, which prompted the robber to command him to stop, giving him another brief opportunity to observe the robber. The manager described the robber as close to six-feet tall, thin, black, with a high forehead, and muttonchops. No distinct scars or facial characteristics otherwise distinguished his unshaven face. He wore blue jeans or dark slacks and a purple shirt. The manager could not recall the style of the shirt.

Although the manager's testimony at the December 13th suppression hearing was substantially identical to his prior testimony, the trial court suppressed it. The basis for its ruling was that the state had failed to show by clear and convincing evidence that the manager's opportunity for observation provided an independent basis for his identification. The court found that Dugger had been only 70 to 75 percent certain before the preliminary hearing that the man in the photograph that he had selected was the Albertson's robber, and that he became 100 percent certain in his identification only after seeing Brewer in the courtroom. The court further found that Dugger's identification of Brewer at the preliminary hearing had been tainted because he had seen Brewer dressed in an orange prisoner's jumpsuit in the courtroom. The court concluded that Dugger did not have an independent basis for his increased certainty and ruled that Dugger was seeking confirmation of his identification of Brewer by his inquiry of Patrick Boese at the preliminary hearing when he asked, "Does he look familiar?" ⁷

The petitioner claims support for a writ of prohibition on three grounds: (1) law of the case, (2) collateral estoppel, and (3) abuse of discretion.

II.

Petitioner contends that the respondent's prior rulings admitting Dugger's testimony in the Anderson trial and finding his testimony in the Buckingham Broker suppression hearing competent and free of taint became the law of the case. Consequently, he argues, the law of the case doctrine precluded the trial court from granting Brewer's motion to suppress in the Albertson's trial.

Although a trial court is not inexorably bound by its own precedents, prior relevant rulings made in the same case are generally to be followed. The law of the case doctrine is applied unless it results in error or is no longer sound due to changed conditions. Vol. 1B Moore's Federal Practice p 0.404 (2nd ed. 1982). Law of the case, as applied to prior court rulings, "merely expresses the practice of courts generally to refuse to reopen what has been decided." Messenger v. Anderson, 225 U.S. 436, 444, 32 S.Ct. 739, 740, 56 L.Ed. 1152 (1912), and has been described as a "discretionary rule of practice," United States v. United States Smelting, Refining and Mining Co., 339 U.S. 186, 70 S.Ct. 537, 94 L.Ed. 750 (1950), when applied to a court's power to reconsider its own prior rulings. ⁸

Petitioner contends that Brewer and Anderson are identical parties because they were initially charged in a single information and therefore the doctrine applies to the ruling in Anderson's Albertson's trial. This contention is without merit, as the severance order and separate trials mandate the conclusion that the parties were not identical. ⁹ Accordingly, since Anderson and Brewer are not identical parties, the law of the case doctrine did not bar the respondent from ruling the Dugger identification testimony inadmissible in Brewer's trial for the Albertson's offense even though it admitted the same testimony in Anderson's trial for the Albertson's robbery.

Petitioner further argues that respondent's ruling in Brewer's Buckingham Broker trial, finding Dugger's testimony both competent and untainted, became binding law of the case in the suppression hearing before the Albertson's trial. Respondent's competence findings in the Buckingham Broker case were dicta, however, since Dugger's testimony was ultimately ruled inadmissible on relevancy grounds. Dictum does not become the law of the case. Barney v. Winona & St. Peter R.R., 117 U.S. 228, 231, 68 S.Ct. 654, 655-656, 29 L.Ed. 858 (1886); see Note, Law of the Case, 40 Colum.L.Rev. 268 (1940).

We conclude that since respondent ruled Dugger's testimony inadmissible on relevance grounds, and consequently inadmissible in the Buckingham Broker trial, his comments on the competence of Dugger's testimony were not binding. Thus, the doctrine of law of the case did not prevent respondent from granting Brewer's motion to suppress in the Albertson's trial.

III.

Petitioner also argues that the doctrine of collateral estoppel prevented respondent from granting Brewer's motion to suppress, because in prior proceedings it found Dugger's identification of Brewer both competent and untainted. Collateral estoppel bars relitigation between the same parties of issues actually determined at a previous trial. People v. Lewis, 659 P.2d 676 (Colo.1983); People v. Horvat, 186 Colo. 202, 527 P.2d 47 (1974); see DiBella v. United States, 369 U.S. 121, 82 S.Ct. 654, 7 L.Ed.2d 614 (1961).

Four elements must be established in order to invoke the doctrine of collateral estoppel. People v. Hearty, 644 P.2d 302 (Colo.1982); Pomeroy v. Waitkus, 183 Colo. 344, 517 P.2d 396 (1973). First, the issue must be identical to an issue that was actually and necessarily decided at a prior proceeding. Second, there must have been a final judgment on the merits at the first proceeding. ¹⁰ Third, there must be identity of parties, or privity between parties, against whom the doctrine is asserted. Fourth, the party against whom the doctrine is asserted must have had a full and fair opportunity to...