People of City of Aurora, by and on Behalf of State v. Allen
| Decision Date | 20 June 1994 |
| Docket Number | No. 93SC132,93SC132 |
| Citation | 885 P.2d 207 |
| Parties | The PEOPLE OF the CITY OF AURORA, By and on Behalf of the STATE of Colorado, Petitioner, v. Robert W. ALLEN, Respondent. |
| Court | Colorado Supreme Court |
Charles H. Richardson, Stephen R. Ruddick, Robert Davis Beard, Aurora, for petitioner.
The Law Firm of Leonard M. Chesler, Rodney Allison, Laird Blue, Denver, for respondent.
Gale A. Norton, Atty. Gen., Stephen K. ErkenBrack, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., John Daniel Dailey, Deputy Atty. Gen., Robert Mark Russel, First Asst. Atty. Gen., Laurie A. Booras, Asst. Atty. Gen., Crim. Enforcement Section, Denver, for amicus curiae State.
Schoenwald & Lewis, P.C., Forrest W. Lewis, Denver, for amicus curiae CO Crim. Defense Bar.
Haddon, Morgan & Foreman, P.C., Ty Gee, Denver, for amicus curiae Aurora Mun. Court Public Defender's Office.
The defendant, Robert W. Allen (Allen), was arrested, charged, and later convicted of soliciting oral sex from an undercover Aurora police officer posing as a prostitute. The solicitation was monitored by other police officers and recorded on audio tape. The tape was reused in the course of subsequent transactions, and was not preserved as evidence.
Because the tape was not available, the trial court sanctioned the prosecution by suppressing the testimony of the police officer and dismissed the case. The People appealed to the district court, which reversed the trial court and reinstated the case for trial. At trial, Allen was convicted. He appealed his conviction to the district court, which reversed the conviction, ruling that Allen's right to a speedy trial had been violated and that the testimony of the police officer should have been suppressed.
We granted certiorari to decide whether suppression of an undercover police officer's testimony is required where the police did not act in bad faith in failing to preserve evidence, whether Allen's right to a speedy trial was violated, and whether a ruling by an appellate court on a question of law becomes the law of the case to be followed in successive stages of the same litigation. We reverse and remand to the district court with directions to reinstate the judgment of conviction and sentence.
On July 20, 1990, the Aurora Police Department conducted an undercover operation in which female police officers posed as prostitutes to target men who were soliciting women for prostitution on East Colfax Avenue. At approximately 11:30 p.m., Allen drove his car into a parking lot and Officer Roberta Coleman approached him. She testified that she asked Allen, "What's up?" He replied, "I'm looking for a date." 1 She told him she was working out of Room 7 at the motel across the street, and he responded, "Okay, fine." She then asked him what he was interested in, and he responded, "Head." She testified that she told Allen the cost would be $20, and he showed her a $20 bill. Allen then drove to Room 7, where he met Officer Coleman at the door. When they entered the room, he was arrested by uniformed officers waiting inside.
The transaction was monitored by other police officers and recorded on a reel-to-reel tape. Officer Coleman testified that the purpose of the monitoring and recording was to ensure the safety of the female officers and to assist the officers in remembering details of conversations when they wrote their police reports. However, she testified that she did not listen to the tape of her conversation with Allen. After the arrest, according to normal procedures, the tape was rewound and used to monitor other transactions that night.
Trial in the Aurora Municipal Court was originally set for November 15, 1990, eighty-four days after Allen's arraignment. On the morning of trial, Allen made a motion to suppress the testimony of Officer Coleman because of the unavailability of the tape. The trial court did not rule on the motion, but rather, pursuant to C.M.C.R. 248(b), granted the People a continuance to respond to the motion, and extended the time limit for speedy trial an additional thirty days, until December 21, 1990. 2 Trial was rescheduled for December 11, 1990. By its written order of December 5, 1990, however, the trial court vacated the December 11 trial date. On December 13, via telephone conference, the court found that, although the actions of the police in erasing the tape were not taken in bad faith, because the erasure was intentional and not accidental, the testimony had to be suppressed. The court granted Allen's motions to suppress the evidence and dismiss the case. At no time did either side raise a speedy-trial objection.
The People appealed the suppression and dismissal orders on December 28, 1990. 3 On June 26, 1991, Chief Judge Joyce Steinhardt of the district court, holding that there was no due process violation unless Allen could show bad faith by the police in erasing the tape, reversed the trial court and reinstated the case for trial. Allen did not appeal Judge Steinhardt's decision to this court. Judge Steinhardt's order was received by the city attorney on July 2, 1991, and trial was set for September 24, 1991.
At a pretrial hearing on the day of trial, Allen made a motion to dismiss, claiming that after the case had been returned to the municipal court after appeal, the city had failed to bring him to trial within the speedy-trial period. The court denied his motion because Allen's attorney had not objected to the setting of the trial date and had first raised the issue on the day of trial. 4 The trial court heard the case and found Allen guilty. Allen received a suspended sentence of fifteen days and a fine of $150.
Allen appealed his conviction to the district court. Acting District Judge Ethan Feldman heard the appeal and held that, because trial had not been held on December 11, 1990, when it was originally scheduled, the time allowed for a speedy trial had expired and Allen was entitled to a dismissal. The court reasoned that the statutory exceptions to the speedy-trial requirement, e.g., section 18-1-405(6), 8B C.R.S. (1986), and Crim.P. 48, did not apply to violations of municipal ordinances. Judge Feldman also reviewed Judge Steinhardt's order of June 26, 1991, which reversed the trial court's suppression of the officer's testimony, and found that the testimony should have been suppressed. He found that Judge Steinhardt had misinterpreted the case law and erroneously required a showing of bad faith before she would suppress the testimony. Instead, Judge Feldman ruled, the destruction of a tape recording was not subject to a bad-faith analysis. Alternatively, he held that the intentional--as opposed to accidental--destruction of the tape amounted to bad faith per se.
We first address Judge Feldman's ruling on whether Allen's right to a speedy trial was violated. Judge Feldman held that, because the Municipal Court Rules were silent on the running of speedy trial during periods of appeal, speedy trial continued to run and was not tolled by the exceptions listed in section 18-1-405(6), 8B C.R.S. (1986), or Crim.P. 48. We disagree with his conclusion.
Pursuant to Colorado Municipal Court Rule 248, a defendant must generally be brought to trial within ninety days of the date of his entry of a plea of not guilty to the charges in the complaint. Under the same rule, a court may extend the period an additional thirty days. The computation of the speedy-trial period begins from the entry of the last not-guilty plea. Amon v. People, 198 Colo. 172, 597 P.2d 569 (1979). If the charges brought against the defendant are dismissed without prejudice, they become a nullity. People v. Small, 631 P.2d 148 (Colo.1981); People v. Dunhill, 40 Colo.App. 137, 570 P.2d 1097 (1977), cert. denied (Jan. 9, 1978). Dismissal of all the charges is a final judgment on the case. If and when the defendant is arraigned under a subsequent information, the speedy-trial period begins anew, even if the charges are identical. 5 People v. Small, 631 P.2d at 155; People v. Kraemer, 795 P.2d 1371, 1374 (Colo.App.), cert. denied (Sept. 4, 1990).
Speedy trial is tolled while an appeal is pending. People v. Jamerson, 198 Colo. 92, 596 P.2d 764 (1979).
On December 13, 1990, the first trial judge suppressed the police officer's testimony and dismissed the only charge against Allen. At this point, the charge became a nullity, and Allen was no longer affected by speedy-trial concerns. No charges were pending against him. The prosecution then appealed the suppression and dismissal orders to the district court. 6 Even if the case had not been dismissed, speedy trial would not continue to run during the appeal. On appeal, Judge Steinhardt reinstated the case against Allen. When the case was remanded to the municipal court, the speedy-trial period began running anew, beginning with the first day of the ninety-day period allotted under the Municipal Rules. Allen's trial took place on September 24, 1991, the eighty-fourth day of the speedy-trial period. We find no violation of Allen's right to a speedy trial. 7
We turn next to the issue of whether a showing of bad faith is required before a defendant can claim that destruction of evidence violated his due process rights. The prosecution appeals the district court's order dismissing the case and contends that the destruction of the tape recording by the police did not violate Allen's due process rights. This issue is not properly before this court, and we decline to rule on it.
On November 15, 1990, the day this case was first set for trial in the municipal court, Allen made a motion to suppress the testimony of the undercover police officer because the tape the police used to monitor the conversation was unavailable. He also made a motion to dismiss the case. Four weeks later, the municipal court granted both of Allen's motions, finding that, although the actions of the police in...
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