People v. Clark
Decision Date | 18 April 1985 |
Docket Number | No. 83CA0993,83CA0993 |
Citation | 705 P.2d 1017 |
Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Donald Angelo CLARK, Defendant-Appellant. . II |
Court | Colorado Court of Appeals |
Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Peter Stapp, Asst. Atty. Gen., Denver, for plaintiff-appellee.
David Vela, Colorado State Public Defender, Richard Hostetler, Special Deputy Public Defender, Denver, for defendant-appellant.
Defendant, Donald Angelo Clark, appeals from a judgment of conviction entered on a jury verdict of guilty of second degree burglary, robbery of the elderly, and theft over $200. We affirm.
The first trial of this case ended in a mistrial declared on the court's own motion when problems arose concerning fingerprint evidence. Also, as a sanction against the prosecution for violating the court's discovery order, the court ordered that no fingerprint evidence could be introduced at the retrial.
The prosecution filed an original proceeding in our supreme court, asking it to vacate the trial court's order excluding the fingerprint evidence. Holding that there was no showing of an abuse of discretion in the exclusionary order, the court discharged the rule to show cause. People v. District Court, 664 P.2d 247 (Colo.1983).
Before the retrial, the trial court modified its sanction and ruled that the prosecution could use the fingerprint evidence for impeachment purposes if defendant testified. Defendant did not testify, so this evidence was not offered or used.
Defendant first contends that the trial court erred in denying his motion to bar retrial based on the double jeopardy provisions of the U.S. and Colorado constitutions. We do not agree.
Defendant did not formally object at the first trial to the court's declaration of mistrial. However, it appears that defendant would have objected except for his reliance on the trial court's announcement of the sanctions he would impose on the prosecution at the second trial. Therefore, we will proceed on the basis that defendant did not waive any objection.
Accordingly, the standard of review is whether there was, as found by the trial court, "manifest necessity" to support the declaration of a mistrial. See People v. Castro, 657 P.2d 932 (Colo.1983); People v. Baca, 193 Colo. 9, 562 P.2d 411 (1977). If the mistrial was substantially justified by manifest necessity, any objection by the defendant is irrelevant and double jeopardy would not attach to bar retrial. See People v. Baca, supra; People v. Moore, 701 P.2d 1249 (Colo.App.1985).
This standard was originally declared in United States v. Perez, 9 Wheat. (22 U.S.) 579, 6 L.Ed. 165 (1824), in which the court stated that As stated in People v. Castro, supra: "Manifest necessity encompasses those situations, substantial and real, that interfere with or retard 'the administration of honest, fair, even-handed justice to either, both, or any, of the parties to the proceeding.' "
The record supports the propriety of the trial court's mistrial declaration. As described in People v. District Court, supra, through opening statements of both counsel and testimony of numerous witnesses, the jury had been fully advised that a fingerprint found in the victim's home was that of the defendant. Then, because of lack of foundation, the key fingerprint evidence could not be admitted.
Confronted with these circumstances, the trial court, in determining the appropriate remedy, stated:
Similarly, we reject defendant's claim that bad faith and overreaching on the part of the...
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