People v. District Court In and For City and County of Denver, No. 88SA121

Docket NºNo. 88SA121
Citation767 P.2d 239
Case DateJanuary 17, 1989
CourtSupreme Court of Colorado

Page 239

767 P.2d 239
The PEOPLE of the State of Colorado, Petitioner,
v.
The DISTRICT COURT In and For the CITY AND COUNTY OF DENVER,
State of Colorado, and the Honorable Warren O.
Martin, one of the Judges Thereof, Respondents,
and
Calvin Preston, Intervenor.
No. 88SA121.
Supreme Court of Colorado,
En Banc.
Jan. 17, 1989.

Norman S. Early, Jr., Dist. Atty., Nathan B. Coats, Chief Deputy Dist. Atty., Denver, for petitioner.

David F. Vela, State Public Defender, John C. Ventura, Deputy State Public Defender, Denver, for respondents.

ERICKSON, Justice, delivered the Opinion of the Court.

A petition for a writ of prohibition was filed pursuant to C.A.R. 21 after the trial judge declared a mistrial, disqualified the deputy district attorney prosecuting the multi-count felony charges, and directed an assistant to proceed with the prosecution and retrial of the case. We issued a rule to show cause and now make the rule absolute.

The defendant, Calvin E. Preston, was charged in a multi-count information with two counts of first-degree kidnapping, two counts of second-degree kidnapping, first-degree sexual assault, conspiracy to commit kidnapping and sexual assault, three counts of extortion, menacing, third-degree

Page 240

assault, and committing a crime of violence.

Prior to trial, defense counsel filed a motion in limine to prevent the deputy district attorney from presenting evidence that the defendant was a co-conspirator with Phil Toomer, a suspected drug dealer and distributor and a member of an alleged outlaw motorcycle gang. Defense counsel also sought to prevent any references to the defendant's involvement in uncharged homicides or burglaries or his participation in the preparation of a "hit list" of individuals suspected of snitching on Phil Toomer. At the in limine hearing the deputy district attorney advised the court that S.M., the prosecution's main witness, was present when the "hit list" was being discussed and that she believed she was on the list. She told her sister G.M. about the list and the intent of the defendant and Phil Toomer to "get" the individuals on the list. G.M. later went to her sister's apartment, and saw her sister S.M. run out of her apartment covered with blood. At the same time, G.M. was threatened with a pistol. The deputy district attorney told the court that after G.M. went to S.M.'s apartment, a long investigation culminated with the filing of charges. He also advised the court that he would not offer hearsay testimony regarding the "hit list." Testimony relating to the defendant's participation in uncharged homicides or burglaries, drug dealings, and the outlaw motorcycle gang was barred by the trial judge at the in limine hearing. 1

When trial commenced, S.M. was the first prosecution witness, and was questioned about the "hit list." She responded that the defendant and Phil Toomer discussed committing a murder and that she had found out she was on the "hit list." Defense counsel moved for a mistrial and the motion was granted. 2

Thereafter, defense counsel moved both to disqualify the district attorney's office and to have a special prosecutor appointed. Defense counsel also moved to dismiss the case.

The trial judge denied the motion to dismiss and disqualified the deputy district attorney for violation of the in limine court order. The trial judge then directed the deputy's assistant to retry the case as soon as a jury could be obtained.

Disqualification of the District Attorney

The district attorney is part of the executive branch of government, and has broad discretion in selecting the deputies that will appear on his behalf. People v. Wright, 742 P.2d 316 (Colo.1987); see §§ 20-1-102, -201, 8B C.R.S. (1983).

The charges to be filed and the selection and presentation of evidence lie within the discretion of the prosecution and the prosecutor is entitled to wide...

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6 practice notes
  • Harris v. People, No. 93SC155
    • United States
    • Colorado Supreme Court of Colorado
    • January 17, 1995
    ...issue not involved in the case into jury deliberations). Cf. People v. District Court In and For the City and County of Denver, 767 P.2d 239, 241 (Colo.1989) (affirming trial court's order granting a mistrial because prosecutor introduced evidence that was inadmissible and highly prejudicia......
  • People v. Fortson, Court of Appeals No. 15CA0413
    • United States
    • Colorado Court of Appeals of Colorado
    • April 5, 2018
    ...inadmissible and highly prejudicial evidence, such conduct will not be condoned, and a new trial may be granted. People v. Dist. Court , 767 P.2d 239, 241 (Colo. 1989).2. Admission of Other Sexual Acts Evidence¶ 16 In order to introduce evidence of a defendant’s other sexual acts, a prosecu......
  • State v. Johnson, No. 25047.
    • United States
    • United States State Supreme Court of South Carolina
    • January 10, 2000
    ...defense have wide discretion in the conduct of the trial and the presentation of evidence."); People v. District Court In & For Denver, 767 P.2d 239 (Col.1989). We therefore conclude that the trial court did not abuse its discretion by admitting the prosecution's photograph into 2. Testimon......
  • Smith v. People, No. 92SC282
    • United States
    • Colorado Supreme Court of Colorado
    • May 10, 1993
    ...In recognition of the well-settled principle of prosecutorial discretion however, we decline to do this. See People v. District Court, 767 P.2d 239 (Colo.1989) (charges to be filed lie within the discretion of the The People next assert that the second degree assault statute is constitution......
  • Request a trial to view additional results
6 cases
  • Harris v. People, No. 93SC155
    • United States
    • Colorado Supreme Court of Colorado
    • January 17, 1995
    ...issue not involved in the case into jury deliberations). Cf. People v. District Court In and For the City and County of Denver, 767 P.2d 239, 241 (Colo.1989) (affirming trial court's order granting a mistrial because prosecutor introduced evidence that was inadmissible and highly prejudicia......
  • People v. Fortson, Court of Appeals No. 15CA0413
    • United States
    • Colorado Court of Appeals of Colorado
    • April 5, 2018
    ...inadmissible and highly prejudicial evidence, such conduct will not be condoned, and a new trial may be granted. People v. Dist. Court , 767 P.2d 239, 241 (Colo. 1989).2. Admission of Other Sexual Acts Evidence¶ 16 In order to introduce evidence of a defendant’s other sexual acts, a prosecu......
  • State v. Johnson, No. 25047.
    • United States
    • United States State Supreme Court of South Carolina
    • January 10, 2000
    ...defense have wide discretion in the conduct of the trial and the presentation of evidence."); People v. District Court In & For Denver, 767 P.2d 239 (Col.1989). We therefore conclude that the trial court did not abuse its discretion by admitting the prosecution's photograph into 2. Testimon......
  • Smith v. People, No. 92SC282
    • United States
    • Colorado Supreme Court of Colorado
    • May 10, 1993
    ...In recognition of the well-settled principle of prosecutorial discretion however, we decline to do this. See People v. District Court, 767 P.2d 239 (Colo.1989) (charges to be filed lie within the discretion of the The People next assert that the second degree assault statute is constitution......
  • Request a trial to view additional results

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