People v. District Court In and For Third Judicial Dist.

• Decision Date: 22 February 1977
• Docket Number: No. 27425,27425
• Citation: 192 Colo. 480,560 P.2d 463
• Parties: The PEOPLE of the State of Colorado, Petitioner, v. The DISTRICT COURT IN AND FOR the THIRD JUDICIAL DISTRICT, State of Colorado and the Honorable Francis W. Jamison, acting District Judge thereof, Respondents.
• Court: Colorado Supreme Court

Page 463

560 P.2d 463

192 Colo. 480

The PEOPLE of the State of Colorado, Petitioner, v. The DISTRICT COURT IN AND FOR the THIRD JUDICIAL DISTRICT State of Colorado and the Honorable Francis W Jamison, acting District Judge thereof Respondents.

No. 27425.

Supreme Court of Colorado, En Banc.

Feb. 22, 1977.

J. D. MacFarlane, Atty. Gen., Jean E. Dubofsky, Deputy Atty. Gen., Edward G. Donovan, Sol. Gen., J. Stephen Phillips, Chief, Crim. Appeals, Harold A. Haddon, Sp. Asst. Atty. Gen., Denver, for petitioner.

No appearance for respondents.

Martin P. Miller, Robert C. Leher, Littleton, for defendant Ernest U. Sandoval.

ERICKSON, Justice.

The People petitioned this court for relief in the nature of prohibition to prevent an acting district judge in the Third Judicial District from dismissing the prosecutor from a pending case. C.A.R. 21. We issued a rule to show cause and now make the rule absolute.

The prosecutor in question represented the People before a grand jury in 1976. In the course of investigations into activities of Ernest U. Sandoval, District Attorney for the City of Trinidad, the prosecutor asked certain questions of Sandoval. The responses to these questions formed the basis for a subsequent indictment of Sandoval for perjury. The grand jury prosecutor continued his role as prosecutor for the case at trial. ¹

The defendant 'moved to dismiss' the prosecutor, contending that the defendant intended to call the prosecutor as a witness to the alleged crime. The respondent trial court granted the motion. This was error.

Every prosecutor may potentially be a witness for the defense insofar as he has interviewed other witnesses and investigated the facts of the case. This alone cannot be a sufficient basis to prevent the execution of his office as prosecutor because it would allow prosecution only by unprepared counsel. See United States v. Maloney, 241 F.Supp. 49 (D.C.Pa.1965). On the other hand, the defendant has a right to call witnesses on his own behalf and to prevent the prosecutor from adding to the weight or credibility of the evidence by acting as both witness and officer of the court. See U.S. Const., Amend. VI; Colo.Const., Art. II, § 16; People v. Spencer, 182 Colo. 189, 512 P.2d 260 (1973); People v. Hauschel, Colo.App., 550 P.2d 876 (1975).

In People v. Spencer, supra, we used the test of whether the testimony of the witness was 'of sufficient consequence to have prevented a fair trial,' in order to balance these policy considerations. Accord, Johnston v. Emerson, 133 Colo. 343, 296 P.2d 229 (1956); People v. Hauschel, supra. In this case, there has been no showing that the role of the prosecutor as a witness would infringe upon the defendant's right to a fair trial.

The charge of perjury in the first degree involves the elements of making a materially false statement, in an official proceeding, under a legally-required oath, with the belief that the statement is untrue. See section 18--8--502, C.R.S.1973; Marrs v. People, 135 Colo. 458, 312 P.2d 505 (1957). The defendant contends that, insofar as his defense will be lack of criminal intent, the prosecutor 'is essentially a key witness since he propounded the questions,' the questions were 'vague, unclear and did not allow . . . a fair chance to respond,' and the prosecutor's testimony will be required in order to establish 'the meaning . . . language and contents' of the questions. Such evidence of the prosecutor's subjective meaning in propounding a question would be irrelevant. The basis of the charge is the Objective meaning of the question, together with defendant's response thereto and his state of mind at the time. As to the issue of the objective meaning of the questions, the record speaks for itself; the prosecutor's testimony would be unnecessary and without probative value. Because the defendant could not have known of...