People v. Duncan

• Decision Date: 16 March 2000
• Docket Number: No. 98CA2305.,98CA2305.
• Citation: 12 P.3d 316
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. John DUNCAN, Defendant-Appellant.
• Court: Colorado Court of Appeals

12 P.3d 316

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. John DUNCAN, Defendant-Appellant.

No. 98CA2305.

Colorado Court of Appeals, Div. III.

March 16, 2000.

Rehearing Denied April 20, 2000.

Certiorari Granted October 30, 2000.

Ken Salazar, Attorney General, John D. Seidel, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

Jostad Associates, P.C., Lee E. Christian, Fort Collins, Colorado, for Defendant-Appellant.

Opinion by Judge NEY.

Defendant, John Duncan, appeals the judgment of conviction entered on a jury verdict finding him guilty of accessory to murder in the first degree. Because we conclude that defendant's statutory right to a speedy trial was violated, we reverse and remand with directions. In September 1997, police officers interviewed defendant's cellmate. The cellmate provided information related to numerous pending investigations. As relevant here, he stated that defendant had confessed to the murder at issue. Defendant was subsequently charged and, on October 23, 1997, entered a plea of not guilty. Trial was scheduled for March 30, 1998, approximately one month before defendant's statutory speedy trial time period expired. See Section 18-1-405, C.R.S.1999.

On December 3, 1997, police officers wrote to the district attorney in charge of the cellmate's case asking for sentence reconsideration in light of his services as an informant. The officers referenced the individual cases in which the cellmate had provided information, including defendant's case. Six days later, on December 9, 1997, defendant filed a specific discovery demand for all information related to consideration the cellmate received for his cooperation on defendant's case.

Not until March 27, 1998, the Friday before defendant's March 30 trial was scheduled to begin, did the prosecution produce any information indicating that the cellmate's sentence to the Department of Corrections would be vacated, and a Community Corrections sentence imposed, as consideration for his history of cooperation in numerous cases. At that time, defendant also received a copy of the December 3, 1997, letter sent to the deputy district attorney in charge of the cellmate's case. This information was produced on the eve of trial, approximately four months after the December 1997 letter was sent and after defendant's specific discovery request.

That afternoon, defendant asked the court to sanction the prosecution for failing previously to provide this exculpatory information under Crim. P. 16 and Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). See People v. District Court, 793 P.2d 163 (Colo.1990)

(exculpatory evidence includes evidence which bears on the credibility of the People's witnesses). The court denied defendant's request either to dismiss the case or to strike the cellmate as a witness.

In response to the court's ruling, defendant's counsel made a motion for continuance so that the defense could investigate the circumstances surrounding the consideration the cellmate received for his cooperation, as well as the facts underlying the late disclosure by the prosecution.

The court ruled that such a continuance "automatically extends the right to speedy trial for an additional six months from today's date," and then asked defendant personally if he understood. After conferring with counsel, defendant said that he understood, but he did not fully agree and felt he did not have a choice. The court indicated that:

I understand that you are not happy with that result, but nevertheless, that is the result. That being the case and the defense counsel having made the motion to continue, the Court will once again grant the motion to continue, order the trial be vacated for this coming Monday, and order that the matter be reset for trial....

Although there were still 27 days remaining in the original speedy trial period, the court reset the trial date beyond the original speedy trial date. Defense counsel stated that:

[W]e do object to the setting as being beyond the original speedy trial date, [defendant's] view of it all being, as I've indicated on the record, that this continuance should be charged to the Government.

In May and June of 1998, hearings were held on defendant's continuing motion for discovery sanctions, as well as his subsequent motion to dismiss based on a statutory speedy trial violation. Evidence was presented regarding the prosecution's late production of the information related to the cellmate's cooperation with police.

At the conclusion of the hearings, on June 30, 1998, the trial court found that the December 1997 letter should have been produced to the defense. However, because the evidence indicated that the letter was disclosed as soon as the specific district attorney prosecuting defendant's case found out about it, the court found no bad faith. The court also found that the defense had asked for a continuance to investigate the late discovery. Therefore, the court did not impose any discovery sanctions, such as striking the cellmate as a witness, nor did it dismiss the case.

Defendant's trial commenced on July 27, 1998. He was found guilty of a lesser non-included offense, accessory to murder. This appeal followed.

Defendant claims, among other things, that the trial court erred in denying his motion to dismiss because his constitutional and statutory rights to a speedy trial were violated. We agree that defendant's statutory right to a speedy trial was violated.

When a defendant is not brought to trial within six months from the date of the entry of a plea of not guilty, the pending charges must be dismissed. Section 18-1-405; Crim. P. 48(b)(1); Colo. Const. art. II, § 16. The Colorado speedy trial statute is intended to implement the constitutional right to speedy trial, Tongish v. Arapahoe County Court, 775 P.2d 63 (Colo.App.1989), and prevent unnecessary delays caused by the prosecution or the court. People v. Arledge, 938 P.2d 160 (Colo.1997); People v. Runningbear, 753 P.2d 764 (Colo.1988).

In computing the speedy trial time period, the period of delay caused at the instance of the defendant is excluded. Section 18-1-405(6)(f), C.R.S.1999. Therefore, whether the prosecution, the trial court, or the defendant caused the circumstances resulting in the need for a continuance, and is chargeable for the delay, is a relevant question. Williamsen v. People, 735 P.2d 176 (Colo.1987); People v. Rocha, 872 P.2d 1285 (Colo.App.1993). The question of which party is properly charged with a trial delay is an ad hoc inquiry. People v. Scales, 763 P.2d 1045 (Colo.1988).

The cases are distinguishable depending on which party was deemed to have caused the delay. There are numerous cases in which the circumstances necessitating the delay were caused by the defendant. In those cases, the delay was, therefore, properly chargeable to the defendant. See, e.g., People v. Fleming, 900 P.2d 19 (Colo.1995)

; People v. Scales, supra (late substitution of counsel was caused by the defendant); People v. Runningbear, supra (defendant's last minute request for severance caused delay); Williamsen v. People, supra (defendant's oral motion to dismiss on morning of trial was chargeable to defendant).

For a continuance to be chargeable to a defendant, it "must have been caused by an affirmative act of the defendant, or by the defendant's express consent to the continuance, or by other affirmative action evincing consent by the defendant." People v. Scales, supra, 763 P.2d at 1047-48. As a result, if the defendant assented to the continuance beyond the speedy trial date, then he or she is charged with the continuance. See People v. Jefferson, 981 P.2d 613 (Colo.App.1998)

(although the circumstances forcing the delay were not caused by the defendant, the trial court found that he subsequently and specifically waived his right to a speedy trial).

In contrast, if the delay was attributable to the prosecution, the period of the delay cannot be charged to the defendant. See, e.g., People v. Murphy, 183 Colo. 106, 515 P.2d 107 (1973)

(delay between interlocutory appeal decision and the defendant's next court appearance could not be charged to defendant); People v. Rosidivito, 940 P.2d 1038 (Colo.App.1996). Cf. People v. Loggins, 981 P.2d 630 (Colo.App.1998)(prosecution's failure to provide timely non-exculpatory discovery did not result in a speedy trial violation).

In People v. Steele, 193 Colo. 87, 563 P.2d 6 (1977), the supreme court ruled that, although the prosecution caused the delay by the late endorsement of a witness on the day of trial, the court found no bad faith and, therefore, the continuance could be charged to the defendant as a "tactical decision". See also Hampton v. District Court, 199 Colo. 104, 605 P.2d 54 (1980)

. However, in Steele there is no indication that the defendant made any objection to a continuance beyond the speedy trial date. People v. Steele, supra.

In this case, although defense counsel was forced to request a continuance to respond to the untimely discovery, the defense explicitly objected to any setting beyond the speedy trial date. At that time, 27 days were still available to reset the trial within the speedy trial period. Neither the trial court nor the prosecution considered nor made any attempt to reset within the period. If neither the prosecution nor the defendant caused the delay, the courts analyze and assess the individual circumstances. See, e.g., People v. Bell, 669 P.2d 1381 (Colo. 1983)

(since the defendant did not cause the delay, the court's decision to continue the hearing on the defendant's Alford plea did not represent a delay chargeable to the defendant); People v. Marez, 916 P.2d 543 (Colo.App.1995)(neither the prosecution nor defendant caused delay, but the delay was chargeable to defendant because he benefited from delay); People v. Cerrone, 867 P.2d 143 (Colo.App.1993)

aff'd,

900 P.2d 45 (Colo.1995)(delay caused by defense...