People v. District Court for Second Judicial Dist., 79SA177

• Decision Date: 13 November 1979
• Docket Number: No. 79SA177,79SA177
• Citation: 603 P.2d 127
• Parties: The PEOPLE of the State of Colorado, Petitioner, v. The DISTRICT COURT FOR the SECOND JUDICIAL DISTRICT, State of Colorado, and the Honorable Karen S. Metzger, as one of the Judges thereof, Respondents.
• Court: Colorado Supreme Court

Page 127

603 P.2d 127

198 Colo. 501

The PEOPLE of the State of Colorado, Petitioner, v. The DISTRICT COURT FOR the SECOND JUDICIAL DISTRICT, State of Colorado, and the Honorable Karen S. Metzger as one of the Judges thereof, Respondents.

No. 79SA177.

Supreme Court of Colorado, En Banc.

Nov. 13, 1979.

As Modified On Denial of Rehearing Dec. 3, 1979.

Dale Tooley, Dist. Atty., O. Otto Moore, Asst. Dist. Atty., Brooke Wunnicke, Chief Appellate Deputy Dist. Atty., Denver, for petitioner.

Myers, Woodford & Hoppin, P. C., Frederick J. Myers, Denver, Holm & Dill, Jon L. Holm, DiManna, Eklund, Ciancio & Jackson, Michael F. DiManna, Stanley J. Walter, Denver, for respondents.

ERICKSON, Justice.

In this original proceeding, the prosecution seeks a writ of mandamus to compel the district court to vacate an order granting the defendants a bill of particulars. We issued a rule to show cause and now discharge that rule.

The defendants were charged with theft and conspiracy to commit theft in an indictment that named Property Management Consultants, Inc., d/b/a United Locators, Will Tieman, Dennis Gooch, Terry Peterson, Rick Safford, and Lee Mynett as defendants. The gravamen of the indictment was that between March 15 and September 15, 1978, some or all of the defendants participated in a scheme to defraud and obtain money by false advertising and by misrepresenting the availability of apartments for rent. The scheme was allegedly carried out by the sale of a spurious list of rental properties.

After a motion to dismiss the two-count indictment was denied, the defendants individually filed motions for bills of particulars as to acts charged in the indictment. The bills requested Inter alia that the prosecution specify which properties were involved in the alleged scheme, approximately when the misrepresentations were made, and what overt acts took place in furtherance of the conspiracy. The trial judge granted the motions but limited her order requiring only that the prosecution answer the bill as nearly as possible "based on the fact that the allegation is in fact a course of conduct rather than one incident. . . ." The prosecution was not required to indicate specific days or hours that the alleged acts were committed.

I. Theft

An order for a bill of particulars normally rests within the sound discretion of the trial judge. Crim.P. 7(g). See Balltrip v. People, 157 Colo. 108, 401 P.2d 259 (1965). Where the crime of theft is charged in the words of the statute, however, such an order is mandatory upon the defendant's request. Section 18-4-401(b)(6), C.R.S.1973 (now in 1978 Repl.Vol. 8) provides:

"In every indictment or information charging a violation of this section, it shall be sufficient to allege that, on or about a day certain, the defendant committed the crime of theft by unlawfully taking a thing or things of value of a person or persons named in the indictment or information. The prosecuting attorney shall at the request of the defendant provide a bill of particulars." (Emphasis supplied.)

The statute recognizes that under our consolidated theft law the charges contained in an indictment or information may not be sufficiently definite to enable the defendant to prepare a defense. See People v. Ingersoll, 181 Colo. 1, 506 P.2d 364 (1973).

The question remains whether the scope of the bill of particulars was so broad as to constitute an abuse of the trial judge's discretion. After a review of the record, we find no such abuse.

The purpose of a bill of particulars is to enable the defendant to properly prepare his defense in cases where the indictment, although sufficient to advise the defendant of the charges raised against him, is nonetheless so indefinite in its statement of a particular charge that it does not afford the defendant a fair opportunity to procure witnesses and prepare for trial. King v. United States, 402 F.2d 289 (10th Cir. 1968); Cefalu v. United States, 234 F.2d 522 (10th Cir. 1956). See also, Right of an Accused to a Bill of Particulars, 5 A.L.R.2d 444 and the cases cited therein. When addressing such motions, the trial judge should consider whether the requested information is necessary for the defendant to prepare his defense and to avoid prejudicial surprise. Wong Tai v. United States, 273 U.S. 77, 47 S.Ct. 300, 71 L.Ed. 545 (1927); United States v. Roya, 574 F.2d 386 (7th Cir. 1978); Balltrip v. People, supra.

The bill does not require a detailed disclosure of the evidence upon which the prosecution expects to rely. Balltrip v. People, supra. Rather, it calls for an exposition of the facts that the prosecution intends to prove and limits the proof at trial to those areas described in the...