People v. District Court In and For City and County of Denver, 88SA121

• Decision Date: 17 January 1989
• Docket Number: No. 88SA121,88SA121
• Citation: 767 P.2d 239
• Parties: 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.
• Court: Colorado Supreme Court

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 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 latitude in presenting his case. See Wright, 742 P.2d at 319; see also Imbler v. Pachtman, 424 U.S. 409, 426, 96 S.Ct. 984, 993, 47 L.Ed.2d 128 (1976) ("Attaining the system's goal of accurately determining guilt or innocence requires that both the prosecution and the defense have wide discretion in the conduct of the trial and the presentation of evidence.") I ABA Standards For Criminal Justice, The Prosecution Function, 3-1.1 (2d ed. 1982). The trial court, however, also has broad discretion over the mode and presentation of evidence and is the final arbiter of the admissibility of evidence. See People v. Tippett, 733 P.2d 1183 (Colo.1987); People v. Cole, 654 P.2d 830 (Colo.1982); People v. Henry, 195 Colo. 309, 578 P.2d 1041 (1978).

When a prosecuting attorney purposefully exposes the jury to inadmissible and highly prejudicial evidence, his conduct will not be condoned, and a new trial will be granted. People v. Goldsberry, 181 Colo. 406, 509 P.2d 801 (1973). ³ The trial judge may impose a broad array of sanctions to prevent overzealous prosecution, but disqualification of the prosecuting attorney assigned to a particular case does not lie within the scope of the trial judge's discretion. See People v. Lee, 630 P.2d 583 (Colo.1981); Goldsberry, 181 Colo. 406, 509 P.2d 801; I ABA Standards For Criminal Justice, The Prosecution Function, Standard 3-5.6 (2d ed. 1980). ⁴

Here, the trial judge abused his discretion by usurping the district attorney's discretion to select and assign a deputy of his own choice to try the case. If the trial court intended to impose sanctions against the deputy district attorney beyond ordering a new trial, other penalties short of ordering the deputy's substitution were available. For example, the trial court could have reported the deputy district attorney's misconduct to his superior, the district attorney. Other remedies, such as the court's contempt power and the initiation of disciplinary proceedings for unprofessional conduct of a district attorney were available. C.J.C. Canon 3(B)(3) (Code of Judicial Conduct) (a judge should initiate appropriate disciplinary measures against a lawyer for unprofessional conduct of which the judge may become aware); I ABA Standards For Criminal Justice, The Prosecution Function, Standard 6-3.5 and Commentary (2d ed. 1982); see Nye v. United States, 313 U.S. 33, 61 S.Ct. 810, 85 L.Ed. 1172 (1941); Losavio v. District Court, 182 Colo. 180, 512 P.2d 266 (1973); see also People v. Rozatos, 699 P.2d 970 (Colo.1985).

However, the mistrial which resulted from the deputy district attorney's violation of the trial judge's in limine order did not provide the trial judge with grounds or...