People v. Arledge, 96SC131

• Decision Date: 19 May 1997
• Docket Number: No. 96SC131,96SC131
• Citation: 938 P.2d 160
• Parties: 21 Colorado Journal 713 The PEOPLE of the State of Colorado, Petitioner, v. David ARLEDGE, Respondent.
• Court: Colorado Supreme Court

Page 160

938 P.2d 160

21 Colorado Journal 713

The PEOPLE of the State of Colorado, Petitioner, v. David ARLEDGE, Respondent.

No. 96SC131.

Supreme Court of Colorado,

En Banc.

May 19, 1997.

Robert S. Grant, District Attorney, Seventeenth Judicial District, Michael J. Milne, Senior Deputy District Attorney, Brighton, for Petitioner.

Barbara S. Blackman, Denver, for Respondent.

Justice HOBBS delivered the Opinion of the Court.

We granted certiorari ¹ to review the judgment of the court of appeals which affirmed the district court's dismissal of the charge against the defendant David Arledge (Arledge) pursuant to the speedy trial provisions of section 18-1-405, 8B C.R.S. (1986 & 1996 Supp.). ² Five weeks prior to trial, the court denied Arledge's recusal motion. Then, one business day before trial, the court granted the recusal motion and requested and obtained from Arledge a speedy trial waiver. Thirty-three days still remained in the speedy trial period, and Arledge was not brought to trial within that time.

After the original speedy trial period had run, defense counsel filed a motion with the reassigned judge to dismiss the case because his client had not been brought to trial within six months of his not guilty plea. The reassigned judge agreed and entered a dismissal order which was upheld by the court of appeals. We affirm the judgment of dismissal.

I.

Arledge was charged by information with accessory to first degree murder, a class four felony, see § 18-8-105(1) & (2), 8B C.R.S. (1986), ³ for allegedly assisting James Richard Bastin in transporting and burning the body of Mayra Lopez after Bastin had murdered her. Bastin and Arledge were scheduled to be tried separately but with the same trial judge presiding. On May 3, 1994, Arledge entered a plea of not guilty. Pretrial conference was set for September 30, 1994, and a jury trial for October 3, 1994.

On August 25, 1994, defense counsel learned of an April 1994 television broadcast that aired an interview with the trial judge during jury deliberations in the Mayra Lopez murder trial. On August 26, 1994, at a previously scheduled motions hearing, the defense filed a "Motion to Disqualify Judge," supported by two affidavits executed by attorneys representing Arledge, stating their opinions that the judge's television comment created "an appearance that the defendant will not receive a fair trial." Arguing the motion, counsel for Arledge said, "I have to stress that the issue is not whether [bias or prejudice is] actual. The issue is whether there's an appearance and that's it." ⁴ The alleged appearance of bias was based on the combination of the April 21, 1994 broadcast and two previous broadcasts that occurred in October 1993 and earlier in April of 1994, which alluded to defendant's knowledge of the murder. The two previous broadcasts did not involve any comment by the trial judge.

In denying the recusal motion, the trial judge stated:

I suppose [I] would have to have a verbatim transcript of what was stated, but I don't believe that this Court made any comments regarding Mr. Arledge. Nor do I believe that the statements made by this Court, or allegedly made by this Court, express any opinion as to the guilt or innocence of Mr. Arledge as it relates to the charge of being an accessory to the crime of murder....

I don't believe that there is anything in the motion to recuse which indicates that I have expressed any opinion as to Mr. Arledge regarding any of those issues. And because of that, at this point in time, I'm going to deny the motion to recuse because I believe on the four corners of the motion fails. [sic] Certainly, if and when you obtain a hard copy of [the total interview] and if the comments seem to indicate otherwise, this Court would be more than happy to revisit that issue.

[DEFENSE COUNSEL]: Judge, with that ruling, I have been informed by [the news station] that they can have a copy of the interview to us by Monday. And what I would ask the court for [is] a continuance until Monday to supplement this motion. And in the alternative, for a stay to perhaps file a Rule 21.

THE COURT: Well, you mean to continue all motions hearing?

[DEFENSE COUNSEL]: Yes.

THE COURT: No, I can't do that and won't do that. I'm denying the motion at this point in time. I recognize your right to refile this or to supplement this Monday.... [W]e simply don't have the time to do that....

The trial court, in denying the recusal motion, provided for Arledge to refile or supplement the motion with additional materials by the following Monday, if he desired reconsideration. However, Arledge took no action to comply with the deadline set by the court for reconsideration.

Five weeks later, on September 30, 1994, the pretrial hearing convened one business day before the scheduled October 3, 1994 trial. At the pretrial hearing, defense counsel requested permission to deposit the videotapes of the television news interview with the court. However, counsel told the court that the tapes contained no new evidence. The court then engaged Arledge and his counsel in the following colloquy, reopening the recusal motion which had been denied:

[DEFENSE COUNSEL]: First of all I had promised the Court on the last court date that I would deposit with the Court the videotapes from [the news station], and I'd like to mark them and give them to the Court. I've talked to the district attorney.

I apologize for not giving these to the Court earlier, but it doesn't say anything. We didn't think it was going [to] say anything, I mean, that we talked about in court, and so I just wanted to deposit these because these are the actual videotapes as opposed to the transcripts of the tape that we had last time.

THE COURT: Okay. Well, this dealt with the issue of disqualification of this judge and I don't know if you're still requesting that that happen or not.

[DEFENSE COUNSEL]: Well, yes, Judge, we are continuing with our request [to disqualify the judge] and I had talked to the district attorney about it and told him. I didn't make copies of this, but that he could--

THE COURT: If you're still making that request, then as far as I'm concerned, I don't have any particular desire to hear this case.

[DEFENSE COUNSEL]: Okay. Judge, I would just like to make it for the record, that's all.

THE COURT: You understand of course that, Mr. Arledge, if you do ask this Court to disqualify itself, it is going to require a delay in these proceedings because we will not be able to have a judge hear this matter next Monday, and therefore, if in fact this Court does disqualify itself, you would be giving up, at least to some extent, your right to a speedy trial, and any delays that may occur between now and the date of the trial, the new trial date, would be attributable to you and would be excluded from the speedy trial calculations.

MR. ARLEDGE: (Defendant nods head up and down.)

[DEFENSE COUNSEL]: Judge, can I discuss this with him?

THE COURT: Yes, you may. And I say that because the last time we were in here you indicated to me that you were not proceeding on that. You're kind of catching me by surprise and I wish this had happened earlier. We'll pass on this matter so you can discuss it with your client as to what he wishes to do.

I wish I would have known this yesterday because I spent until about midnight last night working on questionnaires and such and I'm a bit peeved, but I don't care if I disqualify myself from this case. I have a lot of other things I prefer to do.

[DEFENSE COUNSEL]: Judge, I never withdrew.

THE COURT: That's okay. Back there.

(Whereupon, court recessed at 9:36 a.m. and reconvened at 9:55 a.m. in open court with all parties present.)

....

[DEFENSE COUNSEL]: ... [I]t's our position that neither 18-1-405 or Rule 21, which talks about the substitution of judges, construes a substitution of judges as a waiver of speedy trial.

I don't believe that it's an appropriate choice for my client to make between his right to a speedy trial and his right to request a substitution of judge, but since we're left with that choice, he is willing to waive speedy trial in order to maintain his request for a substitution of judge.

... I'd like to mark the two videotapes to support the record.

THE COURT: I don't even think it's necessary since I'm granting the motion. You can argue, if you want. I'm granting the motion.

Okay. Mr. Arledge, you understand that by waiving your right to a speedy trial, normally you would have a right to be brought to trial within six months of your arraignment date, six months of any continuance that you would request. In fact, if you waive your right to a speedy trial, then you would not have to be brought to trial within six months of today's date, do you understand that?

MR. ARLEDGE: Yes, sir.

THE COURT: Okay. Is that what you wish to do?

MR. ARLEDGE: Yes, sir.

THE COURT: All right. If you'll have him execute the written waiver of speedy trial. What we'll do is simply refer the case to the chief judge for reassignment....

(Emphasis added.) Defendant then executed the requested speedy trial waiver.

On October 5, 1994, the chief judge reassigned the case. On October 7, 1994, a proceeding was held before another judge to reset the trial date for the reassigned judge. At the conclusion of the resetting proceeding, defense counsel objected to the trial being calendared beyond the speedy trial period.

The original speedy trial period expired on November 3, 1994. On November 21, 1994, defense counsel filed a "Motion to Dismiss: Violation of Speedy Trial," to be heard by the judge to whom the case had been reassigned. The motion to dismiss alleged that the original trial judge had "forced the waiver by making the defendant choose between an unbiased judge and a speedy trial," and that "[o]nce the trial court acceded that sufficient grounds existed to recuse itself the court was without the authority or jurisdiction to require the...