People v. Estep, 86CA0951
| Citation | 799 P.2d 405 |
| Decision Date | 29 March 1990 |
| Docket Number | No. 86CA0951,86CA0951 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Park Journee ESTEP, Defendant-Appellant. . V |
| Court | Court of Appeals of Colorado |
Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Clement P. Engle, Asst. Atty. Gen., Denver, for plaintiff-appellee.
Sears & Mika, P.C., Mary G. Allen, Colorado Springs, George M. Allen, Honolulu, Hawaii, and Law Offices of Richard L. Tegtmeier, Richard L. Tegtmeier, Colorado Springs, for defendant-appellant.
Opinion by Judge NEY.
The defendant, Park Journey Estep, appeals the denial of his Crim.P. 35(c) motion for post-conviction relief in which he sought either unconditional discharge or a new trial based on the confession of another to the crime of which he had been convicted. We reverse and remand.
An El Paso County jury found the defendant guilty of first degree murder, first degree assault, first degree arson, and aggravated robbery as charged in 1974. There have been various appeals related to these convictions. People v. Estep, 39 Colo.App. 132, 566 P.2d 706, rev'd, 196 Colo. 340, 583 P.2d 927 (1978), cert. denied, 440 U.S. 983, 99 S.Ct. 1796, 60 L.Ed.2d 245, (1979); Estep v. Hardeman, 705 P.2d 523 (Colo.1985). Also, this court recently vacated the trial court's granting of motions by defendant under Crim.P. 35(a) and 35(b) for sentencing relief. People v. Estep, (Colo.App. No. 89CA0236 February 1, 1990) (not selected for official publication.)
In August of 1984, investigators for defendant's then defense counsel obtained statements of Florida death row inmate, Otis Toole, who confessed to the crime for which the defendant stands convicted. The defendant filed his Crim.P. 35(c) motion based upon Toole's confession. Subsequently, investigators for both the defense and prosecution conducted independent interviews with Toole.
Although both Colorado and Florida have enacted uniform legislation to compel the attendance of interstate witnesses, the Florida courts refused to honor the subpoena issued by the Colorado court to compel Toole to attend the Crim.P. 35(c) hearing.
When it became apparent that Toole would not be available to testify in Colorado Springs, both the district attorney and counsel for the defendant asked that the court travel to Florida to preside over Toole's testimony. The court declined to do so and, thus, was unable personally to evaluate Toole's credibility. Instead, the court reviewed video tapes of interviews of Toole conducted by the defense and prosecution investigators independently. Toole, therefore, never testified under oath, was not questioned by attorneys for either party governed by any rules of evidence, and was not subjected to cross-examination.
The People introduced evidence of an "alibi" for Toole to show that he had been in Florida on the same day as the crimes for which defendant stands convicted. Evidence of interviews conducted by investigators for the prosecution in which Toole recanted his confession was also admitted.
The trial court found, with evidentiary support, that Toole's confession which exculpated the defendant was discovered after the trial and that both parties exercised diligence in trying to discover all possible evidence material to the case and favorable to the defendant before and during the trial. It also concluded that Toole's confession was material and not merely cumulative or impeaching. However, the court denied defendant's motion on the basis that Toole was not credible.
In arriving at its ruling, the court stated that it was "unfortunate that Otis Toole was not made subject to the test of direct and cross-examination," explaining that "there is no better way in my judgment to evaluate, determine credibility of a witness." However, since all that was available to the trial court were video tapes produced by the prosecution and defense investigators of interviews prepared independently, the court made a determination of Toole's credibility based on its...
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People v. Rodriguez
...an acquittal." Id. at 559 (quoting People v. Scheidt, 187 Colo. 20, 22, 528 P.2d 232, 233 (1974)). Rodriguez relies on People v. Estep, 799 P.2d 405 (Colo.App.1990), cert. denied, No. 90SC367 (Colo. Nov. 13, 1990), and argues that the district court relied completely on its own evaluations ......
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People v. Schneider
...being attacked by defendant. The division held defendant was entitled to file a motion for post-conviction relief. In People v. Estep, 799 P.2d 405 (Colo.App. 1990), defendant appealed the denial of his Crim. P. 35(c) motion seeking a new trial based on the confession of another to the crim......
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People v. Schneider
...to that set forth by Judge Briggs's dissent in the court of appeals in People v. Schneider, 991 P.2d at 299-304. 5. In People v. Estep, 799 P.2d 405, 408 (Colo. App.1990), the court of appeals reversed a trial court's denial of a motion for new trial, because the court applied the standard ......
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State v. Schneider
...to that set forth by Judge Briggs's dissent in the court of appeals in People v. Schneider, 991 P.2d at 299-304. 5 In People v. Estep, 799 P.2d 405, 408 (Colo. App. 1990), the court of appeals reversed a trial court's denial of a motion for new trial, because the court applied the standard ......