People v. Castro, 81SA103

Citation657 P.2d 932
Decision Date24 January 1983
Docket NumberNo. 81SA103,81SA103
PartiesThe PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Bernard C. CASTRO, Sr., Defendant-Appellant.
CourtSupreme Court of Colorado

Page 932

657 P.2d 932
The PEOPLE of the State of Colorado, Plaintiff-Appellee,
Bernard C. CASTRO, Sr., Defendant-Appellant.
No. 81SA103.
Supreme Court of Colorado,
En Banc.
Jan. 24, 1983.
Rehearing Denied Feb. 14, 1983.

Page 934

J.D. MacFarlane, Atty. Gen., Richard F. Hennessey, Deputy Atty. Gen., Mary J. Mullarkey, Sol. Gen., Clement P. Engle, Asst. Atty. Gen., Denver, for plaintiff-appellee.

J. Gregory Walta, Colorado State Public Defender, Harvey M. Palefsky, Deputy State Public Defender, Denver, for defendant-appellant.

QUINN, Justice.

The defendant, Bernard C. Castro Sr., appeals his conviction of criminal attempt to commit extreme indifference murder. Sections 18-2-101 and 18-3-102(1)(d), C.R.S.1973. 1 He questions whether attempted extreme indifference murder is a cognizable crime under the Colorado Criminal Code and alternatively challenges the statutory

Page 935

definition of this offense as unconstitutionally vague and violative of equal protection of the laws. He also claims that the evidence was legally insufficient to support his conviction. In addition, the defendant asserts that the constitutional prohibition against double jeopardy was violated when he was subjected to a retrial after a mistrial declaration due to the victim's sudden illness and consequent unavailability to testify as a prosecutorial witness. Finally the defendant contends that a conflict of interest on the part of his trial counsel deprived him of his constitutional right to effective assistance of counsel. We conclude that the defendant was denied effective assistance of counsel during the trial of this case and, while we reject his other claims, we reverse his conviction and remand for a new trial.


The defendant was charged in the Pueblo District Court with attempted extreme indifference murder. The charging document was filed by J.E. Losavio, Jr., the District Attorney for the Tenth Judicial District, but all court proceedings were handled by his assistants or deputies. The charge arose out of the shooting of Alfred Mares on May 31, 1977, in the parking lot of the Heritage House, a bar in Pueblo. On July 13, 1977, the county court appointed an attorney in private practice to represent the defendant due to his financial inability to retain his own attorney. The case ultimately was bound over to the district court for trial.

On October 31, 1978, trial was commenced and a jury was selected and sworn on that day. 2 On the following morning, Wednesday, before opening statements, the prosecutor advised the court that he was unable to proceed because Alfred Mares, the victim, had been admitted to the hospital the previous evening with an acute urinary tract infection and was not available to testify in the case. The treating physician, according to the prosecutor, was unable to determine how long Mr. Mares would be hospitalized but was certain that he would remain in the hospital through Friday of that week. The prosecutor also advised the court that while Mares might be able to testify in a few days, the treating physician cautioned that he would be under sedation during his testimony and his testimony could not exceed two hours. Defense counsel urged the court to proceed with the trial, arguing that the prosecution had other witnesses to support its case. The court ruled that Mr. Mares was an essential witness to the prosecution's case and, due to his unavailability, declared a mistrial.

Trial commenced again on January 16, 1979, and resulted in a guilty verdict. The evidence at this last trial centered on the shooting incident of May 31, 1977. During the afternoon of that day Alfred Mares went to the Heritage House Bar for a beer with his uncle, Clovis Velasquez. While inside the bar he spoke to another uncle, John Velasquez, and John's wife. During this conversation a man whom he knew at the time as "Barney," later identified as the defendant, approached him with a young boy at his side and engaged him briefly in conversation. Later an argument developed between the defendant and one Dennis Gonzales over a pool game. The argument became heated and the two men left the bar in an agitated state.

Eventually Mares left the bar and walked to a parking lot where he had previously parked his car. Without warning or apparent reason the defendant, whom Mares had observed just moments before speaking outside the bar with Dennis Gonzales, walked over to his truck and pulled out a shotgun. He aimed the weapon at Mares and started yelling at him. John Velasquez, who had left the bar, stepped between the defendant and Mares and told the defendant to put down the weapon. The defendant lowered the shotgun and walked back towards his truck. Shortly thereafter he fired a shot in the general direction of the bar where several people were still inside. When Mares

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turned around to see where the shot impacted, the defendant again fired the weapon and shot Mares in the abdomen. Clovis Velasquez wrestled the defendant for the gun but the defendant succeeded in grabbing it away. He reloaded and took aim at Clovis. At this point John Velasquez intervened and told the defendant not to shoot. The defendant's son said "Let's go dad," whereupon the defendant drove away.

Alfred Mares sustained serious injuries to the upper left quadrant of his abdomen, including damage to his kidney, spleen, pancreas, and small intestines. None of the prosecution witnesses was able to offer any reason for the defendant's conduct.

The defendant testified in his own behalf and offered the following version of the shooting. When he left the bar to fight Dennis Gonzales, several other persons followed. Gonzales pulled out a knife and asked the defendant to proceed to an area to the rear of a nearby liquor store. As the defendant moved slowly towards the liquor store, he observed his son being dragged by Alfred Mares and Clovis Velasquez, at which point he ran for his shotgun. After he fired a warning shot in the air, his son was released and ran to the passenger side of his vehicle. Mares, Clovis Velasquez and others approached the vehicle and, according to the defendant, someone jumped him from behind and grabbed him by the throat. In the ensuing struggle the shotgun discharged and struck Mares.

After the verdict was returned the defendant's attorney filed a motion for a new trial, based primarily on the alleged insufficiency of the evidence to sustain the jury verdict. While this motion was pending the defendant filed a pro se petition for an order requiring defense counsel to withdraw and a pro se motion for a new trial. The defendant's petition and motion were based upon a claim of ineffective assistance of counsel during the trial because, as asserted by the defendant, his defense counsel during the very same period in which this case was being prosecuted also represented Joseph E. Losavio, Jr., the District Attorney for the Tenth Judicial District. The trial court denied all motions without a hearing and thereafter on April 10, 1979, sentenced the defendant to a term of twelve to eighteen years for attempted extreme indifference murder.

After the filing of a notice of appeal the trial court appointed the Public Defender's Office on May 4, 1979, to represent the defendant on his appeal. While the appeal was still pending the court of appeals remanded the case to the trial court to allow the defendant to pursue his claim of ineffective assistance of counsel. The public defender filed a motion to vacate the defendant's conviction and sentence under Crim.P. 35(c) on the basis of ineffective assistance of counsel stemming from defense counsel's simultaneous representation of the defendant and District Attorney Losavio.

A hearing was held on the postconviction motion on September 26, 1980. The evidence established that during the period of defense counsel's representation of the defendant, from approximately July 8, 1977, through May 4, 1979, she also was serving as attorney for District Attorney Losavio in two legal matters. 3 One matter related to an electors' petition in 1977 for the recall of Mr. Losavio as district attorney. Mr. Losavio contested the recall petition by filing protests with the Secretary of State, and extensive litigation ensued. The other matter involved a 1977 indictment returned against Mr. Losavio for overspending his budget and was several years in litigation, finally terminating in an appeal to this court in which defense counsel successfully appeared on behalf of Mr. Losavio. 4 Defense counsel, during her representation of the defendant, at no time advised the court of any conflict of interest. She testified,

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however, that she did inform the defendant of her simultaneous representation of the district attorney on the recall petition and that the defendant stated to her that it made no difference to him. She also testified to having cautioned the defendant against expecting any favors from her representation of the district attorney. 5 The defendant denied receiving such information from defense counsel and claimed that he did not learn of the joint representation until the conclusion of the last trial. The trial court denied the defendant's claim of ineffective assistance of counsel, finding that "the allegations of the Defendant are without merit and do not warrant post-conviction relief." The case thereafter was certified to the court of appeals and ultimately was referred to this court due to the constitutional claims raised by the defendant. 6

We will first consider the defendant's claim that attempted extreme indifference murder is not a cognizable crime, next his due process and equal protection challenges to the statutory definition of this offense, and then the sufficiency of evidence to support his conviction. We will then address his contention that the constitutional prohibition against double jeopardy prevented his last retrial due to the absence of manifest necessity for the...

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