People v. Auld, 89CA0995

• Decision Date: 17 January 1991
• Docket Number: No. 89CA0995,89CA0995
• Citation: 815 P.2d 956
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Robin K. AULD, Defendant-Appellee. . III
• Court: Colorado Court of Appeals

Page 956

815 P.2d 956

59 USLW 2495

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Robin K. AULD, Defendant-Appellee.

No. 89CA0995.

Colorado Court of Appeals Div. III.

Jan. 17, 1991.

As Modified on Denial of Rehearing Feb. 14, 1991.

Certiorari Denied Aug. 26, 1991.

Keith Cross, Sp. Prosecutor, Glenwood Springs, for plaintiff-appellant.

Haddon, Morgan & Foreman, P.C., Harold A. Haddon, Rachel A. Bellis, Denver, for defendant-appellee.

Opinion by Judge NEY.

The People appeal the judgment of the district court dismissing a criminal information charging defendant, Robin K. Auld, with one count of theft by receiving and one count of possession of a dangerous weapon. We affirm.

In 1988, La Plata County law enforcement officials obtained a federal funding grant for the conduct of undercover activities aimed at drug trafficking, a project known by the acronym LEADS. The steering committee for LEADS included the sheriff of La Plata county, the district attorney for the Sixth Judicial District, and police chiefs of various police departments within the judicial district. Based on unsubstantiated information, the LEADS Committee initiated an undercover operation targeting the defendant, who was an attorney.

A fictitious complaint was filed against a "Colton Young" in the county court. "Colton Young" was in fact the alias of an undercover agent. The fictitious complaint was drafted by the district attorney, typed by his secretary, signed by a sheriff's officer, and notarized by the wife of the district attorney.

"Colton Young" was "charged" with carrying a concealed weapon and possessing marijuana. He was brought before a county judge, advised of his rights, and questioned by the court about general information relating to his identity, status, and bond. The undercover agent made several false statements to the judge, who was unaware of his true identity, and posted a surety bond, which was sworn to under oath in front of a deputy clerk for the county court. "Colton Young" then retained the defendant to represent him in his defense. The defendant telephoned the court to determine the status of the charges against "Colton Young."

After having paid the defendant his retainer in cash, the undercover agent asked if the remainder could be paid by giving something in trade. The defendant immediately replied that if cocaine was being suggested, he would not accept it; however, he stated that he might be interested in a gun at "a black market price."

Under the terms of the LEADS grant, the scope of its activities was limited to drug enforcement activities; therefore, the program could no longer be used to justify further action after the defendant rejected the opportunity to take drugs in exchange for legal services. Nevertheless, the LEADS committee, through the undercover agent, presented the defendant with weapons, first as collateral for his fee, and eventually in payment of his fee. His acceptance of an Uzi semiautomatic rifle led to the charges against the defendant.

After the defendant's arrest, the district attorney and law enforcement officers discussed with him the possibility that the charges would "go away" if he provided information about a number of people, including present or former clients. The defendant refused.

In response to a pretrial motion by defendant, the charge was dismissed, and this appeal was pursued by current counsel for the People.

I.

The People assert that the trial court's dismissal of the case against the defendant violates the doctrine of separation of powers. We disagree.

The United States Supreme Court has recognized the existence of the legal defense of outrageous governmental conduct and has found application of a court's supervisory powers in dismissing a criminal case may be proper if the government's conduct has violated fundamental fairness and is shocking to the universal sense of justice. United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973). Colorado recognized the due process claim of outrageous governmental conduct in Bailey v. People, 630 P.2d 1062 (Colo.1981).

In People in Interest of M.N., 761 P.2d 1124 (Colo.1988), this concept was again at issue. There, the court accepted its viability, but it determined that an undercover agent's encouragement of a minor to purchase drugs and commit crimes, as well as providing a minor with illegal drugs, was not so extreme and outrageous as to amount to a denial of due process. Accordingly, the trial court's dismissal of delinquency proceedings against the minor was reversed by the supreme court.

Relying on People in Interest of M.N., supra, the trial court here denied defendant's motions to dismiss that were grounded on governmental misconduct and outrageous governmental conduct which denied him due process, on targeting him without probable cause or reasonable suspicion, on failure to cease the operation when he refused drugs, and on infringement of the attorney-client relationship. However, the court granted defendant's motion to dismiss based on alleged outrageous governmental conduct that had implicated the court in law enforcement activities.

The People in effect admit that the district attorney here has perpetrated a fraud upon a court of this state by filing false documents, making false statements to a judge, and creating a counterfeit prosecution. They further concede that as a result of the district attorney's activities, the county court was duped into playing an active part in the prosecutorial function of the executive branch. It was therefore the executive branch which initially violated the doctrine of the separation of powers.

As the trial court correctly observed:

"How far can the Executive Branch involve the Judicial Branch, whether knowingly or unknowingly, as an accomplice to its undercover...