People ex rel. Sandstrom v. District Court In and For County of Pueblo

• Decision Date: 15 November 1994
• Docket Number: No. 94SA235,94SA235
• Citation: 884 P.2d 707
• Parties: The PEOPLE of the State of Colorado ex rel. G.F. SANDSTROM, District Attorney, Tenth Judicial District, State of Colorado, Petitioner, v. The DISTRICT COURT In and For the COUNTY OF PUEBLO, State of Colorado, and the Honorable John R. Tracey, one of the Judges Thereof, Respondents.
• Court: Colorado Supreme Court

Page 707

884 P.2d 707

The PEOPLE of the State of Colorado ex rel. G.F. SANDSTROM,

District Attorney, Tenth Judicial District, State

of Colorado, Petitioner, v. The DISTRICT COURT In and For the COUNTY OF PUEBLO, State of

Colorado, and the Honorable John R. Tracey, one of

the Judges Thereof, Respondents.

No. 94SA235.

Supreme Court of Colorado,

En Banc.

Nov. 15, 1994.

Rehearing Denied Dec. 5, 1994.

G.F. Sandstrom, Dist. Atty., Tenth Judicial Dist., Karrick A. Burrows, Deputy Dist. Atty., Pueblo, for petitioner.

David F. Vela, Colorado State Public Defender, Douglas K. Wilson, Elizabeth A. Martinez, Deputy State Public Defenders, Pueblo, for defendant Paul Vince Maurello and on behalf of respondents.

Raymond T. Slaughter, Executive Director, Katherine M. Clark, Staff Atty., Colorado Dist. Attys. Council, Denver, Gale A. Norton, Colorado Atty. Gen., Stephen K. ErkenBrack, Chief Deputy Atty. Gen., Timothy

M. Tymkovich, Sol. Gen., John D. Dailey, Deputy Atty. Gen., Robert Mark Russel, First Asst. Atty. Gen., for amici curiae Colorado Dist. Attys. Council and Colorado Atty. General's Office.

Justice VOLLACK delivered the Opinion of the Court.

In this original proceeding pursuant to C.A.R. 21, ¹ we issued a rule directing the respondent district court (the district court) to show cause why it should not be prohibited from removing the petitioner, the District Attorney for the Tenth Judicial District, State of Colorado (the district attorney ²), from prosecution of a criminal case against Paul Vince Maurello (Maurello) on the ground that the district attorney had an interest in the outcome of the case since the district attorney was simultaneously prosecuting a civil forfeiture case. We now make the rule absolute.

I.

On November 12, 1993, Maurello was charged by information with possession of marijuana with intent to distribute, in violation of section 18-18-406(8)(b), 8B C.R.S. (1994 Supp.), and possession of eight ounces or more of marijuana, in violation of section 18-18-406(4)(b), 8B C.R.S. (1994 Supp.). ³ During its investigation of Maurello, the Pueblo Police Department (police department) searched Maurello's home and seized $4,912.00 in currency. Shortly thereafter, the police department sent a forfeiture request to the district attorney, asking the district attorney to initiate seizure and forfeiture proceedings against the $4,912.00. On December 14, 1993, the district attorney filed a civil forfeiture action against the $4,912.00 pursuant to the Abatement of Public Nuisance Act, § 16-13-301 to -316, 8A C.R.S. (1986 & 1994 Supp.). ⁴ The complaint alleged that Maurello used the $4,912.00 to "conduct, maintain, aid, abet or facilitate" a public nuisance act through his possession of marijuana with intent to distribute and his possession of more than eight ounces of marijuana. The complaint designated the police department and the district attorney as the seizing agencies, and requested the court to forfeit the currency to those agencies "for their lawful activities." The currency was subsequently turned over to the district attorney, and placed in an interest-bearing account, according to agency procedure. ⁵

After a preliminary hearing, the district court found that there was probable cause for the charges against Maurello, and ordered the case set for trial. On March 21 1994, Maurello filed a motion to dismiss the information and, in the alternative, to appoint a special prosecutor. Maurello argued that the district attorney had a financial interest in the outcome of the criminal case because the district attorney was designated as one of the agencies entitled to receive a portion of the forfeited currency if the forfeiture case was successful. Maurello also argued that the involvement of the district attorney in both the criminal and civil cases created an appearance of impropriety under the ethical rules.

The trial court held a hearing on the motion on May 6, 1994. Several witnesses testified at the hearing, including Detective Lewis C. Andrew, Deputy District Attorney Patrick Avalos, and District Attorney Gus F. Sandstrom. ⁶ Detective Andrew, an officer with the Narcotics Unit of the police department, testified that he arrested Maurello and was present when the currency was seized from Maurello's home. Detective Andrew said that, based on his involvement in plea negotiations involving defendants with pending criminal and civil forfeiture cases, he was under the impression "that the two are not to be combined." He also testified that there is no separate civil forfeiture unit, and that District Attorney Sandstrom typically handles forfeiture cases.

District Attorney Sandstrom confirmed that he personally handles the forfeiture cases, including the forfeiture involved in this case. He said that, when his office prevails on a civil forfeiture case under the Abatement of Public Nuisance Act, the forfeited currency is divided between the district attorney and the police department. He explained that the two agencies have an agreement whereby the district attorney generally receives one-third of the seized currency, and the police department receives two-thirds. District Attorney Sandstrom testified that there is a separate fund for forfeited currency, and that the fund is controlled by a Board of Directors, of which he is a member. He explained that the funds are used "for the use and benefit of prosecution," including buying books and computer supplies, paying for audits, and providing funds for drug purchases by undercover officers.

District Attorney Sandstrom further testified that it is office policy to keep civil forfeiture cases and criminal cases completely separate. To that end, he said that the police are required to make forfeiture requests independently from the requests on criminal cases, and that each case must receive a copy of all discovery documents. District Attorney Sandstrom testified that criminal plea negotiations are also handled separately from forfeiture plea negotiations, except in rare cases when joint negotiations are initiated by a defense attorney. He said that his office does not stand to benefit, nor suffer disadvantage, from the outcome of a criminal case. Finally, District Attorney Sandstrom explained that forfeiture cases are stayed pending the resolution of the criminal case. He acknowledged that a conviction in the criminal case could be important in proving the subsequent forfeiture case, with its civil burden of proof by a preponderance of the evidence.

Deputy District Attorney Patrick Avalos (Avalos) told the court that he is a supervising attorney, and that he was recently elected to a seat on the Pueblo City Council. Avalos further testified that, as one of seven city council members, he must vote to approve or disapprove a budget for the City of Pueblo. Avalos said that he does not have the power to hire or fire anyone at the police department. He explained that the city manager is responsible for hiring and firing department heads such as the Chief of Police, and that the city manager, in turn, is retained by the city council. Lastly, he testified that he had never used his position as a city council member to influence a criminal case, and that he was not involved in the present case.

At the conclusion of the hearing, the district judge took the motion under advisement. On May 12, 1994, the district court issued its order. The court first found that Avalos' dual roles as Deputy District Attorney and Pueblo City Council member did not create an appearance of impropriety. The court found that Avalos may have more influence over the police department than other deputy district attorneys. However, the court held that the integrity of the criminal justice system was not compromised, because the public's perception would reasonably be that the district attorney and the police department "are in the same camp anyway."

The district court nevertheless appointed a special prosecutor to handle the criminal case against Maurello because the court found that the district attorney was "interested" in the criminal case, under section 20-1-107, 8B C.R.S. (1986). ⁷ The court reasoned that a conviction in the criminal case, although not dispositive, would support the district attorney's allegation in the forfeiture case that the currency was used to " 'conduct, maintain, aid, abet or facilitate a Class One Public Nuisance [possession of marihuana, and possession of marihuana with intent to distribute].' " The court concluded that since the district attorney would receive some of the forfeited funds if the forfeiture case was successful, the district attorney was "interested" in the outcome of the criminal case. The court therefore appointed a special prosecutor.

The People then filed this original proceeding, arguing that the district court erred in appointing a special prosecutor.

II.

The People argue that the district court abused its discretion when it found, pursuant to section 20-1-107, 8B C.R.S. (1986), that the district attorney was "interested" in the criminal case against Maurello. We agree. We find that the district attorney's involvement in the criminal case as it relates to the pending forfeiture case is too attenuated to create a conflict of interest.

Under section 20-1-107, the district court has discretion to disqualify the district attorney from a case and appoint a special prosecutor if the district attorney is "interested" in the outcome of the case. Section 20-1-107 provides, in relevant part, as follows:

If the district attorney is interested or has been employed as counsel in any case which it is his duty to prosecute or defend, the court having criminal jurisdiction may appoint a special prosecutor to prosecute or defend the cause.

Although the statute does not define the word "interested," we have held that the district attorney's disqualification is proper when the district attorney has some involvement in the defendant's case which...