People v. District Court of 2nd Judicial Dist., No. 83SA104

Docket NºNo. 83SA104
Citation664 P.2d 247
Case DateJune 06, 1983
CourtSupreme Court of Colorado

Page 247

664 P.2d 247
The PEOPLE of the State of Colorado, Petitioner,
v.
The DISTRICT COURT OF the 2ND JUDICIAL DISTRICT and Hon.
Paul A. Markson, one of the judges thereof, Respondents.
No. 83SA104.
Supreme Court of Colorado.
June 6, 1983.

Page 248

Norman S. Early, Jr., Dist. Atty., O. Otto Moore, Asst. Dist. Atty., Brooke Wunnicke, Chief Appellate Deputy Dist. Atty., Denver, for petitioner.

Richard I. Zuber, Denver, for respondents.

NEIGHBORS, Justice.

The People filed this original proceeding pursuant to C.A.R. 21 requesting that this court prohibit the respondent judge from enforcing his order excluding the People's fingerprint evidence at trial in a criminal case pending in the Denver District Court. We issued a rule to show cause. We now discharge the rule.

I.

Donald Angelo Clark (Clark) was charged in a complaint/information filed in the Denver County Court on June 2, 1982, with three felonies: second-degree burglary, 1 robbery of the elderly or handicapped, 2 and theft over $200. 3 The charges arise from the burglary of the residence of the 87-year-old female victim on May 26 or 27, 1982.

Clark was bound over to the district court for trial following a preliminary hearing held in the county court. On June 29, 1982, Clark appeared before the respondent judge and entered a plea of not guilty. Trial was set for August 9, 1982.

On July 27, 1982, the public defender's motion to withdraw as counsel for Clark was granted and the case was continued for the appointment of new counsel until August 5, 1982. On that date, the case was continued until August 6, 1982, because the attorney selected to represent Clark declined to accept the appointment. On August 6, 1982, present defense counsel was appointed. The court vacated the original trial date of August 9, 1982, and reset the case for trial beginning on September 20, 1982.

On September 20, 1982, Clark filed a motion to continue the jury trial and waived his right to a speedy trial. The district attorney did not object to the motion. The motion for a continuance was granted and the case was reset for a jury trial to commence on November 8, 1982.

The parties appeared for trial on November 8. The respondent judge was in trial on

Page 249

another case and no other judge was available to try Clark's case. Therefore, the respondent judge vacated the jury trial on his own motion and reset the trial for January 31, 1983.

The jury trial on the three charges began on January 31, 1983. In his opening statement, the district attorney told the jury that the defendant would be connected to the burglary of the victim's residence by fingerprint evidence. Defense counsel also discussed this fingerprint evidence during his opening statement. The evidence in dispute consists of a partial latent fingerprint found on a jewelry box in the victim's bedroom by officers from the Denver Police Department Crime Laboratory. The fingerprint was identified as that of Clark.

Ten witnesses were called to the witness stand and testified. A primary goal of the prosecution was to establish that the defendant had touched the jewelry box. The district attorney attempted to establish this fact by showing that the latent print found on the jewelry box was identical to the known inked prints of Clark.

Officers Kerber and McKinnies testified that they found the latent print in the victim's bedroom on May 27, 1982. Each identified Exhibit B as the latent print which had been recovered. Detective Vaughn Ballard testified and was qualified as an expert witness in the field of fingerprint identification. Ballard completed the chain of custody for Exhibit B when he testified that he used the exhibit in comparing it with the known inked prints of the defendant shown in Exhibit E and concluded that the prints were identical. Exhibit E is an enlargement or blowup of the latent prints and Clark's inked prints. It is unclear from the record whether the inked prints in the exhibit were taken from Clark's fingerprint card of an earlier arrest or from the card containing his prints obtained after his arrest on the present charges. The district attorney then offered the exhibit into evidence. Defense counsel conducted a voir dire examination of Ballard with regard to Exhibit E. On both direct and voir dire examinations, Ballard testified that he or Detective Arko, or both, took the inked prints of Clark when he was arrested. However, Ballard admitted that he did not know the precise date when he and/or Arko obtained the inked prints shown in Exhibit E which provided the basis for his opinion. The respondent judge sustained an objection to the admission of Exhibit E, but granted the district attorney's request to recall Ballard the next day to lay an adequate foundation for the admission of the exhibit. The court then recessed for the day.

The following morning, the district attorney informed the judge that neither Ballard nor Arko had rolled Clark's fingerprints and that the earlier testimony of Ballard was a "misstatement." The district attorney filed a motion for non-testimonial identification pursuant to Crim.P. 41.1 requesting a court order authorizing Ballard to obtain Clark's fingerprints during trial. The trial court denied the motion on the ground it was not timely filed. The respondent judge also pointed out that he had entered a discovery order on June 29, 1982, in which he granted the prosecution the right to obtain Clark's fingerprints at any time on written notice by letter to defense counsel. The trial court also found that Clark had been continuously in the custody of either the Denver County Sheriff or the Department of Corrections since his arrest. The district attorney did not make a formal motion to endorse additional witnesses. However, the district attorney informed the court that he assumed that a motion to endorse the witness who actually took Clark's fingerprints would not be granted.

The respondent judge, finding manifest necessity in accordance with People v. Baca, 193 Colo. 9, 562 P.2d 411 (1977), declared a mistrial on his own motion for two stated reasons. First, evidence of Clark's prior criminality had been improperly placed before the jury during the testimony about the fingerprints. 4 Second, the fingerprint

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evidence referred to repeatedly by the district attorney and defense counsel in their opening statements would not be introduced at trial. The judge believed that a cautionary instruction would be inadequate under the circumstances. As a sanction, the respondent judge ordered that no fingerprint evidence could be introduced at a second trial. In response to the trial court's ruling, Clark's attorney stated:

"The Defendant, as long as the Court has in fact made that limitation that the District Attorney in a retrial of this matter cannot rely on the fingerprint evidence at all--"

At that point in the proceedings, defense counsel was interrupted by the district attorney with an argument that evidence of Clark's inked prints could be admitted by laying a proper foundation through the endorsed witnesses pursuant to the Colorado Rules of Evidence. The case was then continued until 1:30 p.m. when further arguments were made. At that time, the court rejected the fingerprint evidence under C.R.E. 406, 803(6) and 803(8). The...

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33 practice notes
  • People v. Taylor, Docket No. 79360
    • United States
    • Court of Appeal of Michigan (US)
    • July 21, 1987
    ...Ariz. 60, 691 P.2d 1088 (1984); Hunter v. State, 8 Ark.App. 283, 653 S.W.2d 159 (1983); People v. District Court of 2nd Judicial District, 664 P.2d 247 (Colo., 1983); Hickey v. State, 484 So.2d 1271 (Fla.App.1986); People v. Norks, 137 Ill.App.3d 1078, 92 Ill.Dec. 406, 484 N.E.2d 1261 (1985......
  • Ferrer v. Okbamicael, Supreme Court Case No. 15SA340
    • United States
    • Colorado Supreme Court of Colorado
    • February 27, 2017
    ...trial courts that "will place a party at a significant disadvantage in litigating the merits of the controversy." People v. Dist. Court , 664 P.2d 247, 251 (Colo. 1983) (quoting Sanchez v. Dist. Court , 624 P.2d 1314, 1316 (Colo. 1981) ). We also generally exercise original jurisdiction und......
  • Merritt v. People, No. 91SC597
    • United States
    • Colorado Supreme Court of Colorado
    • November 23, 1992
    ...trial court's ruling unless it constitutes a clear abuse of discretion." Thurman, 787 P.2d at 655 (relying on People v. District Court, 664 P.2d 247, 252 (Colo.1983)). "Unless the restriction of cross-examination is so severe as to constitute [a] denial of that right, the extent to which th......
  • People v. Luna-Solis, Supreme Court Case No. 12SA75
    • United States
    • Colorado Supreme Court of Colorado
    • April 8, 2013
    ...request for non-testimonial identification procedures once judicial proceedings have been initiated, seePeople v. District Court, 664 P.2d 247, 250 n.5 (Colo.1983), and cited with approval the decision in People v. Angel, 701 P.2d 149, 150–51 (Colo.App.1985), interpreting that statement to ......
  • Request a trial to view additional results
33 cases
  • People v. Taylor, Docket No. 79360
    • United States
    • Court of Appeal of Michigan (US)
    • July 21, 1987
    ...Ariz. 60, 691 P.2d 1088 (1984); Hunter v. State, 8 Ark.App. 283, 653 S.W.2d 159 (1983); People v. District Court of 2nd Judicial District, 664 P.2d 247 (Colo., 1983); Hickey v. State, 484 So.2d 1271 (Fla.App.1986); People v. Norks, 137 Ill.App.3d 1078, 92 Ill.Dec. 406, 484 N.E.2d 1261 (1985......
  • Ferrer v. Okbamicael, Supreme Court Case No. 15SA340
    • United States
    • Colorado Supreme Court of Colorado
    • February 27, 2017
    ...trial courts that "will place a party at a significant disadvantage in litigating the merits of the controversy." People v. Dist. Court , 664 P.2d 247, 251 (Colo. 1983) (quoting Sanchez v. Dist. Court , 624 P.2d 1314, 1316 (Colo. 1981) ). We also generally exercise original jurisdiction und......
  • Merritt v. People, No. 91SC597
    • United States
    • Colorado Supreme Court of Colorado
    • November 23, 1992
    ...trial court's ruling unless it constitutes a clear abuse of discretion." Thurman, 787 P.2d at 655 (relying on People v. District Court, 664 P.2d 247, 252 (Colo.1983)). "Unless the restriction of cross-examination is so severe as to constitute [a] denial of that right, the extent to which th......
  • People v. Luna-Solis, Supreme Court Case No. 12SA75
    • United States
    • Colorado Supreme Court of Colorado
    • April 8, 2013
    ...request for non-testimonial identification procedures once judicial proceedings have been initiated, seePeople v. District Court, 664 P.2d 247, 250 n.5 (Colo.1983), and cited with approval the decision in People v. Angel, 701 P.2d 149, 150–51 (Colo.App.1985), interpreting that statement to ......
  • Request a trial to view additional results

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