People v. District Court In and For First Judicial Dist., Jefferson County

• Decision Date: 17 January 1989
• Docket Number: A-T,No. 88SA287,88SA287
• Citation: 767 P.2d 1208
• Parties: The PEOPLE of the State of Colorado, Petitioner, v. DISTRICT COURT In and For the FIRST JUDICIAL DISTRICT, JEFFERSON COUNTY, Colorado, and the Honorable Winston W. Wolvington, One of the Judges Thereof, Respondents, and Milton L. Born-With-ooth, Defendant-Intervenor.
• Court: Colorado Supreme Court

Page 1208

767 P.2d 1208

The PEOPLE of the State of Colorado, Petitioner, v. DISTRICT COURT In and For the FIRST JUDICIAL DISTRICT, JEFFERSON COUNTY, Colorado, and the Honorable

Winston W. Wolvington, One of the Judges

Thereof, Respondents,

and

Milton L. Born-With-A-Tooth, Defendant-Intervenor.

No. 88SA287.

Supreme Court of Colorado,

En Banc.

Jan. 17, 1989.

Donald E. Mielke, Dist. Atty., Donna Skinner Reed, Sr. Deputy Dist. Atty., Golden, for petitioner.

No appearance for respondents.

David F. Vela, Colorado State Public Defender, Victoria J. Koury, Deputy State Public Defender, Golden, for defendant-intervenor.

VOLLACK, Justice.

The People filed this petition pursuant to C.A.R. 21, seeking relief in the nature of mandamus and a writ of prohibition against the respondent, Jefferson County District Court. The judge ordered the prosecution to reveal the identity of the confidential informant and ruled that if the prosecution failed to do so, the criminal charges against the defendant would be dismissed. The charges of second degree murder and felony child abuse resulting in death filed against the defendant, Milton Born-With-a-Tooth, arise from the alleged suffocation murder of his three and one-half year old son in a motel room in Lakewood, Colorado. When the prosecution failed to obtain the identity of the confidential informant from Canadian law enforcement authorities and disclose the informant's identity to the defendant, the court ruled that it was going to dismiss the criminal charges if the prosecution did not discover and reveal the identity and whereabouts of the confidential informant within seven days. The People filed this petition the next day. We issued a rule to show cause why the court should not be prohibited from dismissing the criminal charges and why the order compelling disclosure of the informant should not be vacated. We now make the rule absolute.

I.

On October 14, 1984, Lakewood Police Detective Steve Evans received a call for assistance concerning the death of a three and one-half year old child. Detective Evans responded to the King's Rest Motel on West Colfax Avenue where he found a child named Shining Eagle Yellowhorn. Shining Eagle was transported to Saint Anthony's Hospital where he was pronounced dead. Detective Evans interviewed the child's mother, Leslie Yellowhorn (the mother) and the child's father, Milton Born-With-a-Tooth (Born or the father). ¹ The mother, father and child had traveled to the United States from Canada and were living in a motel room. The mother told the detective that she and the father were sleeping in the motel room when their son accidentally suffocated after pulling a plastic bag over his head. She told Detective Evans that she awoke to hear the father attempting to resuscitate the child and saying "something was wrong." The mother also told the detective that she was not aware of any abuse of the child by his father. The father gave the same version of the child's death when questioned by Detective Evans.

Detective Evans attended the autopsy performed on the child's body. The autopsy report concluded that the child died as a result of suffocation. The report also stated that the doctor believed that the child's "bruises on the lower extremities [were] compatible with the child's age," rather than the result of abuse. After receipt of the autopsy report, investigation of the case was concluded.

Almost two years later, in September 1986, Detective Evans was contacted by Sergeant Welke of the Royal Canadian Mounted Police (RCMP). ² Welke worked in the area of Alberta, Canada, where the Blackfoot Indian Reservation is located. Based on his interviews with Born and Leslie Yellowhorn in 1984, Detective Evans knew that Born and Yellowhorn belonged to the Blackfoot tribe and that they considered the Blackfoot Reservation to be their home. Sergeant Welke was contacting Evans because Welke had recently received information from a confidential informant that Shining Eagle's death was the result of foul play. Welke called Evans on two separate occasions and said he would mail a report to Evans when he obtained more information.

After these telephone conversations, Evans traveled to Canada in March 1987 and met with Leslie Yellowhorn. After returning to Colorado, Evans received the RCMP's written reports. The reports stated that the RCMP had a confidential informant in the case, and included a copy of the informant's statement. The report indicated that Leslie Yellowhorn had spoken with the confidential informant and told the informant that Born had killed Shining Eagle. The confidential informant then contacted Constable Potts, a constable on the Blackfoot Reservation. The statement from the confidential informant was the first information provided to official sources indicating that Shining Eagle's death was the result of foul play.

After the confidential informant spoke to the Canadian authorities, Leslie Yellowhorn came forward; from the time of her conversation with the informant, she has given four versions of the events of October 14. ³ All four versions differ somewhat in the details. The first version of Shining Eagle's death, given to authorities by the confidential informant, was that Yellowhorn told the confidential informant that as part of an ongoing and escalating pattern of abuse, Born "took a plastic bag and put it over the boy's head til[l] the boy suffocated." ⁴

In her signed statement for the RCMP, Yellowhorn gave the second version, which stated: Milton Born "wrapped Shining Eagle in a sheet binding his arms and legs from the neck down. Shining Eagle was crying. Milton was watching football. He put Shining Eagle on the floor by the bed face down and put a pack sack by his legs and arms so he couldn't move. Shining Eagle kept crying. Milton took a piece of rag and gagged Shining Eagle." ⁵

As a result of this information, Born was arrested in Canada and extradition proceedings followed. At the extradition hearing in Lethbridge, Alberta, Canada, Leslie Yellowhorn testified to a third version of Shining Eagle's death, stating that Born became angry because Shining Eagle was crying and placed the boy "on the floor with the pack sacks on him and he was under, halfway under the bed with them resting on him." She testified: "Milton couldn't hear the football [game on the television] because my little boy was crying more and he got mad and he bent over and he got a rag and he took it, he took the pack sacks off, he tied it around my son and covered his mouth so he wouldn't cry so loud and then he put the pack sacks back." She testified that the rag was a piece of shirt material tied around Shining Eagle's mouth, but not inside his mouth and possibly not covering the child's nose. Leslie Yellowhorn testified that after she fell asleep, the child fell asleep crying and died.

It took over one year for Born to be extradited to Colorado. Charges of second degree murder and felony child abuse resulting in death were filed against him in Jefferson County District Court. Born's counsel filed a Motion for Disclosure of Confidential Informant and the district court conducted a hearing. At the hearing on the motion to disclose in Jefferson County District Court in July 1988 Leslie Yellowhorn gave this testimony, the fourth version of Shining Eagle's death. On October 14 Born became angry because Shining Eagle was drinking water, ⁶ struck him, and caused his nose to bleed. Next, Born wrapped the child in a sheet, placed him face down on the bed, and ordered him to stay in that position without moving. When Shining Eagle loosened himself from the sheet, Born "wrapped him up again and put him on the floor beside the bed and put two pack sacks beside him to hold him down with his face down...." After rewrapping the child in the sheet, Born "tied a rag around his mouth," securing it with a knot. The mother testified that she was unable to intervene and fell asleep crying, and that the next thing she remembered was Born awakening her. Born untied and unwrapped the child; his attempts to revive Shining Eagle were unsuccessful. Born called the police.

During cross-examination at the motions hearing, a transcript of Yellowhorn's testimony from the extradition proceeding was introduced into evidence and used by defense counsel to impeach portions of her testimony.

During the hearing on the motion to disclose, the prosecutor introduced into the record the portion of Sergeant Welke's report in which Constable Potts explained that the confidential source felt unable or unwilling to come forward due to "the lingering fear by the confidential source of the reprisal or retaliation." The confidential informant was thought to be an "individual who lived on the Reserve." Prior to this hearing the prosecution contacted the RCMP and the constable there refused to reveal the identity or whereabouts of the informant.

On the motion to disclose the confidential informant, the district court entered this written order:

CONCLUSIONS OF LAW: The cases indicate that in determining whether or not to Order disclosure of the name of the confidential informant the Court must consider the following:

1. Was the informant an eye or ear witness to the crime?

2. Is the informant available?

3. Are there any other witnesses to the transaction?

4. Is there a likelihood that the testimony will vary from that of other witnesses?

5. Does the Defendant know the identity of the confidential informant?

6. The Court must balance the needs of law enforcement against the rights of the Defendant[.]

In this case unless Leslie Yellowhorn is herself the informant, the informant was not an eye or ear witness to the crime. There is a question as to whether the informant is available because the identity of the informant has not been revealed. There were no witnesses to the alleged crime other than Leslie Yellowhorn and the Defendant. There is a strong likelihood that the testimony of...