People v. District Court, City and County of Denver

• Decision Date: 08 April 1991
• Docket Number: No. 90SA491,90SA491
• Citation: 808 P.2d 831
• Parties: The PEOPLE of the State of Colorado, Petitioner, v. DISTRICT COURT, CITY AND COUNTY OF DENVER, and one of the Judges thereof, J. Stephen Phillips, Respondents.
• Court: Colorado Supreme Court

Page 831

808 P.2d 831

The PEOPLE of the State of Colorado, Petitioner, v. DISTRICT COURT, CITY AND COUNTY OF DENVER, and one of the Judges thereof, J. Stephen Phillips, Respondents.

No. 90SA491.

Supreme Court of Colorado En Banc.

April 8, 1991.

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

Coghill & Goodspeed, P.C., Patrick L. Ridley, David J. Richman, Denver, Tone T. Schauer, Boulder, for respondents.

H. Patrick Furman, Boulder, John M. Richilano, Denver, for amicus curiae The Colo. Crim. Defense Bar, Inc.

Justice LOHR delivered the Opinion of the Court.

The People of the State of Colorado brought this original proceeding under C.A.R. 21, seeking relief in the nature of prohibition or mandamus from an order of the Denver District Court requiring payment of $19,131 to the defendant's attorneys in a criminal proceeding as a sanction for violation of discovery rules. The sum represented that part of the defendant's attorney's fees characterized by the court as "unnecessary fees generated by the discovery failure." The order provided in the alternative that if the payment were not made by a specified time the case would be dismissed. We issued a rule to show cause why the order should not be vacated, and now make the rule absolute.

I.

Davis Vick was charged with first degree sexual assault. See § 18-3-402, 8B C.R.S. (1986). Vick admitted to having sex with the alleged victim, J.J., but defended on the ground that she consented. Vick and J.J. were the only witnesses to the incident. Conflicting testimony was adduced at trial.

J.J. testified to the following version of the events. On the night of the incident, she had gone out with a friend, Susie Anderson, and some of Anderson's friends. They had gone first to Anderson's house, then to Caldonia's, then briefly to Rick's Cafe, and finally to the Tijuana Yacht Club at the Tivoli. J.J. had four alcoholic drinks at Caldonia's, left there around 9:30, and had no more alcoholic beverages that evening. She saw Vick at the Tijuana Yacht Club. J.J. knew him because he had formerly been engaged to her sister, but she had not seen him for two or three years. J.J. and Vick talked, danced two dances, then argued about J.J.'s sister. J.J. left Vick to search for Anderson, but was unable to find her. J.J. ran into Vick again and he helped her with the search, which proved unsuccessful. Vick asked J.J. how she had arrived at the Tivoli. She replied that she had been a passenger in her own car. A friend had driven the car but had been unable to obtain admission to the bar. Vick suggested that J.J. had a little too much to drink and offered her a ride home. She accepted. Vick took J.J. to his truck, pinned her down inside, pulled a gun on her, loaded it, then raped her. The sexual assault occurred around midnight. Vick then drove J.J. home, pushed her out of the truck and drove away.

Vick testified to a very different version of what transpired that evening. He saw J.J. at the Tijuana Yacht Club. They talked briefly. Vick danced with someone else, then J.J. pulled him onto the dance floor. J.J. danced suggestively. J.J. approached Vick later and asked him to buy her a drink. J.J. ordered an alcoholic beverage which she quickly drank. J.J. challenged Vick to have sex with her and led him out of the bar. J.J. began to undress when they reached his truck. The two then had consensual sex. J.J. became upset when Vick ejaculated in her, and requested that he take her home. Vick complied.

The trial in this case began on October 15, 1990. After the jury reported that it was unable to reach a verdict, the court declared a mistrial and set a new trial for November 26, 1990. Six days prior to retrial the defense filed a motion to dismiss alleging that the prosecution had failed to disclose exculpatory information. In support of this motion the defense attached a Supplemental List of Witnesses filed by the prosecution on August 13, 1990. The list incorrectly designated witness Andrew Hamrick as Andrew Hamnick, with "Address Unknown." The defense alleged that the prosecution discovered the error and met with Hamrick on September 14, 1990, prior to the trial. At that meeting Hamrick disclosed what the defense characterized as potentially exculpatory evidence. The prosecution did not inform the defense of this information.

At a hearing on the motion to dismiss on November 26 and 27, 1990, the prosecuting attorney, Leslie Hansen, testified that she did not consider Hamrick's information material because his memory was vague and his information was cumulative to that provided by Susie Anderson and J.J. Hamrick testified that he had met with Hansen on September 14, 1990. During that meeting Hamrick told Hansen that he was with J.J., Susie Anderson, and others on the night of the alleged sexual assault; that they drank heavily beginning before they went to Caldonia's; that prior to arrival at the Tijuana Yacht Club the group was refused service at Rick's Cafe because J.J. was intoxicated and boisterous; that he had driven J.J.'s car to the Tijuana Yacht Club; that he saw J.J. with Vick at the Tijuana Yacht Club; and that he overheard J.J. tell Susie Anderson that she was leaving with Vick. ¹

The trial court found that Hamrick's testimony was material impeachment evidence, not made available to the defense in violation of Crim.P. 16 and the principles of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Specifically, the trial court found that Hamrick's testimony conflicted with that of J.J. on (1) her degree of intoxication, (2) her ability to locate members of her party prior to leaving the Tijuana Yacht Club with Vick, ² and (3) whether Hamrick, who drove J.J.'s car to the Tivoli, was present in the Tijuana Yacht Club. As a sanction the trial court ordered payment of attorney's fees to the defense attorneys covering the period from the eve of trial to the date of the order. The order required "the office of the District Attorney" to pay $19,131 to defense attorneys by December 7, 1990, at 11:30 a.m., and provided that if payment were not timely made "the case shall be dismissed." The court later clarified that order by stating that the award was against the People of the State of Colorado and not the office of the district attorney or any individual attorney.

The People moved for reconsideration. At a hearing on the motion, the trial court reiterated its earlier findings and specifically found that the violation by the prosecution was not willful. The trial court agreed, however, to hold a hearing on the amount of the sanction. The court ordered payment of $15,000 into an escrow account pending the hearing in order to avoid dismissal.

The People petitioned this court for relief under C.A.R. 21. We issued a rule to show cause why the order imposing the sanctions should not be vacated.

II.

The trial court ruled that the failure by the prosecution to disclose potentially exculpatory information violated both Crim.P. 16 and Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). That ruling is supported by the record.

Rule 16 of the Colorado Rules of Criminal Procedure provides in pertinent part that "[t]he prosecuting attorney shall disclose to defense counsel any material or information within his possession or control which tends to negate the guilt of the accused as to the offense charged or would tend to reduce the punishment therefor." Crim.P. 16(I)(a)(2), 7B C.R.S. (1990 Supp.). This requirement is based upon constitutional principles first enunciated in Brady. People v. District Court, 790 P.2d 332, 337 (Colo.1990).

The United States Supreme Court has held that failure to disclose to the defense evidence favorable to the accused upon request violates due process "where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady, 373 U.S. at 87, 83 S.Ct. at 1197. As Brady itself demonstrates, this principle is applicable to trials in state courts under the Fourteenth Amendment. Accord People v. Thatcher, 638 P.2d 760, 768 (Colo.1981). In United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), the Court expanded the rule of Brady to hold that a prosecutor has a duty to volunteer exculpatory material to a defendant even in the absence of a specific request. Agurs, 427 U.S. at 107-08, 96 S.Ct. at 2399. In United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985), the Court held that the following test is applicable to the determination of materiality without regard to whether the defense specifically requested the evidence that the prosecution failed to disclose:

The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A "reasonable probability" is a probability sufficient to undermine confidence in the outcome.

473 U.S. at 682. ³ In Bagley the United States Supreme Court applied the rule from Brady in circumstances involving failure to disclose material impeachment evidence. Bagley, 473 U.S. at 676, 105 S.Ct. at 3380 (1985); accord People v. District Court, 790 P.2d at 337 ("Impeachment evidence falls within the ambit of evidence favorable to the accused, and hence must be disclosed under Brady."); Thatcher, 638 P.2d at 768 ("The use of discovery material for impeachment purposes implicates the due process rights of the defendant.").

The evidence available from Hamrick was relevant to impeach certain of the testimony of J.J. The trial court found Hamrick's testimony to be material "in a constitutional sense," noting that "[w]hen you get a case of this nature and the credibility of a complainant is gauged against the credibility of the Defendant, pieces of information which support their story immediately before and immediately after the real...