People v. District Court of El Paso County

• Decision Date: 07 March 1994
• Docket Number: No. 93SA340,93SA340
• Citation: 869 P.2d 1281
• Parties: The PEOPLE of the State of Colorado, Petitioner, v. The DISTRICT COURT OF EL PASO COUNTY, Colorado; the Honorable Matt M. Railey, District Judge, Respondents.
• Court: Colorado Supreme Court

Page 1281

869 P.2d 1281

The PEOPLE of the State of Colorado, Petitioner, v. The DISTRICT COURT OF EL PASO COUNTY, Colorado; the

Honorable Matt M. Railey, District Judge, Respondents.

No. 93SA340.

Supreme Court of Colorado,

En Banc.

March 7, 1994.

John Suthers, Dist. Atty., Fourth Judicial Dist., Robert B. Harward, Deputy Dist. Atty., Colorado Springs, for petitioner.

Dennis W. Hartley, P.C., Dennis W. Hartley, Rick B. Levinson, Colorado Springs, for defendant James Andrew Carroll.

Justice VOLLACK delivered the Opinion of the Court.

In this original proceeding under C.A.R. 21, we issued a rule directing the respondent, El Paso County District Court, ¹ to show cause why it should not be prohibited from excluding the prosecution's witness' testimony under the provisions of Colorado Rule of Evidence 403 ² and the Confrontation Clause of the Sixth Amendment and the Colorado Constitution. ³ The trial court entered its ruling to exclude the witness' testimony in a pretrial hearing on the motion in limine of the defendant, James Andrew Carroll. We now make the rule absolute and remand to the respondent court for further proceedings consistent with this opinion.

I.

The defendant, James Andrew Carroll (Carroll), was charged in El Paso County District Court with the crimes of first degree murder, ⁴ aggravated robbery, ⁵ second degree burglary, ⁶ and crime of violence ⁷ based on an incident that occurred on November 7, 1989, in which the defendant, accompanied by his co-defendants, allegedly shot and killed a man during the commission of a robbery and burglary.

Carroll was initially brought to trial on April 5, 1993, and was tried separately from his co-defendants. The district court ordered a mistrial due to juror misconduct during deliberations.

Prior to the trial, the defense filed a motion in limine to preclude the petitioner, the People of the State of Colorado (the People), from introducing the testimony of one of its witnesses, Starlet Arrington (Arrington), the defendant's cousin, under CRE 403 and the Confrontation Clause of the Sixth Amendment of the United States Constitution and Article II, Section 16, of the Colorado Constitution. In particular, the motion asserted that the defense "[could not] explore the biases and prejudices" of the witness without introducing the fact that Carroll was convicted of manslaughter and sentenced to eight to fifteen years in the death of the witness' father in 1990.

In March 1993, a pretrial hearing was held on the motion. The district court deferred ruling on whether the witness' testimony could be admitted until the prosecution had presented its case. The court, however, ordered both sides to refrain from referring to the witness' expected testimony during opening statements.

At the close of the prosecution's case, the prosecution asked to call Arrington as a witness. An in-camera hearing was held, and the witness testified that Carroll was her first cousin on her father's side; that she was at an apartment party with the defendant shortly before the murder occurred; that, after the murder, Carroll unexpectedly never returned to his mother's house in Colorado where the witness was also staying; and that a week later, she called her father, who lived in Michigan, and first learned that Carroll was temporarily staying with him. She further testified that, in February 1989, three months after the burglary, she visited her father and had a conversation with Carroll in which she asked him why he left Colorado if he were innocent. During this conversation, Carroll admitted committing the murder.

Arrington stated that she lacked present memory of his statements, but that she reported the statements Carroll made in Michigan truthfully to a military investigator at Fort Dix, New Jersey, when she was serving in the Army. At the time she made the statements to the military, she additionally stated that she was feeling upset about her father's recent death. Arrington said that the investigator recorded her statement in writing and that she reviewed the investigator's written report at the time, initialed it, and verified its accuracy.

The military investigator testified that he is the person who received and recorded Arrington's statement. The military investigator's report indicates, in pertinent part, that Carroll admitted to Arrington that he "had killed the guy in Colorado Springs," "everyone knows I killed that guy in Colorado Springs," and that he "had gotten the gun that was used in the murder ... from a Mexican guy named Daniel."

On cross-examination, Arrington testified that, although she was upset that Carroll had killed her father, she still loved her cousin. Upon further inquiry by the judge, she emphatically denied the defense's implication that she made these statements to the investigator only to seek revenge. Arrington finally testified that she never discussed her statements to the military investigator with her grandmother since her grandmother was disturbed with her coming forward with information and was not interested in knowing what Arrington had said.

The defense introduced evidence to impeach Arrington's credibility. Troy Zook (Zook), a legal investigator appointed to this case, testified that he had met with Arrington prior to the trial and at that time she stated that she was unable to recall the exact statement she had made to the military investigator. Zook further stated that Arrington indicated that Carroll's statement that everyone "knows I killed the guy" could have been that they "think I killed the guy."

Zook testified that he had also interviewed Arrington's grandmother who stated that she had spoken with Arrington about her statements to the military investigator. Zook additionally stated that the grandmother claimed that Arrington had told her about her conversation with Carroll in Michigan and that Carroll's statement was: "They think I killed the guy in Colorado." Zook finally stated that the grandmother contended that she had a recent conversation with Arrington and sensed that Arrington was and still is vindictive, bitter, and angry toward Carroll for killing her father.

Based upon the testimony and the prosecution and defense counsel's arguments, the district court granted the motion to exclude all of Arrington's testimony on April 28, 1993, on the grounds that under CRE 403 the probative value of the testimony was outweighed by the danger of unfair prejudice to the defendant. Even in the absence of CRE 403, the court concluded that the same ruling would be required because permitting Arrington to testify would violate the defendant's right to confront the witness against him. The district court specifically stated:

... I would characterize her as on the face of her testimony a credible witness, seems fairly believable and fairly honest to the Court at least....

....

... She also is the only one that has any, essentially any, incriminating statements from the Defendant that are of much weight. So there is certainly no question that this evidence is probative.

... The unfair prejudice I think is obvious.... [Defense counsel] would have to essentially not cross-examine this witness ... as to her motivation for her statements....

....

... [T]he prejudice is not only that they may find him guilty of first degree murder based upon [his criminal conviction in the killing of her father]. [The jury] might even impose the death penalty based upon that when it's not admissible in the death penalty phase. So the prejudice is very great.

The district court characterized the resulting prejudice as "immense" and did not believe that it could be cured by any limiting instruction.

After submitting the case to the jury on May 5, 1993, the district court ordered a mistrial due to juror misconduct during deliberations. The case has been set for retrial on July 18, 1994, and in November 1993, the People filed a new motion asking the district court to reconsider its decision to exclude the testimony. The district court denied the motion without a hearing, finding that the arguments made in the People's motion to reconsider did not merit changing its initial ruling. The People then petitioned this court for relief under C.A.R. 21.

II.

We first address the threshold question of the authority of this court to review the evidentiary ruling by the trial court pursuant to an original proceeding. An original proceeding under C.A.R. 21 is an appropriate remedy "where the district court is proceeding without or in excess of its jurisdiction," C.A.R. 21, and "where the trial court has abused its discretion and where an appellate remedy would not be adequate." People v. District Court, 868 P.2d 400 (Colo.1994); Halaby, McCrea & Cross v. Hoffman, 831 P.2d 902, 905 (Colo.1992). The granting of the remedy is entirely within the discretionary authority of this court. People v. District Court, 868 P.2d 400 (Colo.1994).

If this case is retried without an appellate determination as to the correctness of the district court's motion in limine ruling, then appellate review upon final judgment would not afford adequate relief since jeopardy will have attached and the defendant cannot be retried. ⁸ We conclude that the exercise of original jurisdiction is appropriate to address the correctness of the district court's ruling on the motion in limine. See People v. District Court, 664 P.2d 247 (Colo.1983) (holding that an original proceeding is available to the prosecution to review whether the trial court abused its discretion in excluding fingerprint evidence in view of the fact that the prosecution's ability to litigate would be impaired by the trial court's order and because the defendant could not be retried if acquitted).

III.

To determine whether the rule to show cause should be made absolute as to the proffered evidence, we must first consider the district court's motion in limine ruling to exclude the witness from testifying because the probative...