People v. Fisher

• Decision Date: 05 July 1988
• Docket Number: No. 86SA495,86SA495
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Bettie FISHER, Defendant-Appellee.
• Court: Colorado Supreme Court

Page 33

759 P.2d 33

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Bettie FISHER, Defendant-Appellee.

No. 86SA495.

Supreme Court of Colorado,

En Banc.

July 5, 1988.

Norman S. Early, Jr., Dist. Atty., David Dansky, Deputy Dist. Atty., Denver, for plaintiff-appellant.

David F. Vela, Colorado State Public Defender, Janet Fullmer Youtz, Deputy State Public Defender, Denver, for defendant-appellee.

VOLLACK, Justice.

The prosecution filed this appeal from the district court's denial of its "Motion to File Information Directly in the District Court" pursuant to Crim.P. 7(c)(2). We reverse and remand with directions to the district court to grant the prosecution's motion to reinstate the original charges in the district court.

I.

This case arises from an incident that took place on September 21, 1986. Evidence at the preliminary hearing established that on the day in question, police officers were called to a Denver address on a report of a shooting. Officers arrived at the single family residence to find the body of Robert Vizina in the front room of the house. A bullet had entered Vizina's body through the right armpit, traveled through the body, and lodged in the left hip. At the scene, the police recovered a .38 special revolver with four live rounds inside and two spent shells; the hammer of the gun was in a cocked position. The investigating detective found a second bullet lodged in a ceiling joist in the same room where the body was found. A pathologist at Denver General Hospital conducted an autopsy of Vizina's body and determined that the cause of his death was a gunshot wound to the upper body which severed several major organs.

Detective Penington, who testified at the preliminary hearing, requested that a nitrate pattern test be performed to determine the distance from the muzzle of the weapon to the victim at the time the weapon was fired. The result of the test showed that the muzzle of the revolver "was further than three feet from the victim when it was fired" because there was no nitric pattern on either the victim or his clothing. Detective Penington also requested that a gunshot residue test be performed. This test detects the presence of barium, lead, and antimony content expended from a weapon at the time of discharge. This test was performed on both Fisher and on Vizina's body. As to Vizina's body, the results were negative. Although the results were inconclusive as to Fisher, the detective testified that gunshot residue was found on the back of her left hand.

Another officer at the scene interviewed the defendant's neighbor. The neighbor told the officer that he had seen Fisher go to the recreational vehicle parked outside her house about ten minutes before he heard sirens and saw emergency equipment arriving at Fisher's house.

Detective Penington testified that he took two statements from Fisher. Fisher was advised of her rights at 7:16 p.m. and gave her first statement to Penington at that time. This statement was not taped. Penington testified that Fisher said she had spent the morning canning and "had had a couple of ... 3.2 beers." Fisher told him that when Vizina returned to the house in an intoxicated condition, he lay down on the bed in the bedroom and she covered him with a quilt. When he got up at noon he brought out a bottle of bourbon and she "had a couple of drinks with him." While Vizina sat on the couch, the two "began discussing his failure to help payments with the house or with money around the house." Vizina asked Fisher to go into the recreational vehicle parked outside the house to get a gun for him. Fisher returned to the house with a gun and gave it to Vizina. According to her statements, Vizina handed the gun back to her and said "Shoot me, I'm no good. Shoot me and I won't hurt you anymore" and "Do it." Penington testified that Fisher said "the next thing she knew was the gun--she heard a loud boom. I asked her where the gun was after she heard this loud noise, and she said she didn't know, that she saw [Vizina] laying on the floor." Fisher realized that Vizina was bleeding and called for emergency services.

Two paramedics who arrived at the scene before the detective described Fisher as "quite hysterical" and "agitated." Detective Penington arrived a half hour to an hour after the arrival of the paramedics and the fire department. Fisher's second statement was taken later in the evening and was videotaped. The videotape was entered into evidence at the preliminary hearing, and viewed by the judge during the hearing. When asked to describe Fisher's condition, Detective Penington responded: "Her condition was shook up; she seemed somewhat intoxicated; she was scared; she was uncertain of what had happened and what was happening; in the condition of Mr. Vizina, she was uncertain what the situation w[a]s there."

The results of fingerprint analysis performed on the revolver were negative; no fingerprints were recovered from the weapon. However, it was established that both bullets had been fired from the weapon found in the front room. Based on the location of the bullet in the ceiling, it appeared that the shot had been fired from the vicinity of the front door.

On cross-examination, the detective explained that gunshot residue was found on the back of Fisher's left hand, and that "[a] person would have to hold that gun in their hand at the time of firing it to have any residue on the back of their hand." However, the results of the test were considered to be inconclusive.

Fisher was charged by information with second degree murder, in violation of section 18-3-103(1)(a), ¹ and crime of violence, in violation of section 16-11-309. ² A preliminary hearing was held in Denver County Court in October 1986. At the conclusion of the preliminary hearing, the county court ruled that probable cause was not established on the charge of second degree murder and dismissed Count I. Count II, the crime of violence charge, was also dismissed. In a sua sponte ruling, the county court held that probable cause had been established to support a charge of reckless manslaughter. ³ The case was bound over to the Denver District Court on that charge. ⁴

The prosecution filed a Motion to File Information Directly in the District Court, pursuant to Crim.P. 7(c)(2), 7B C.R.S. (1984). ⁵ The prosecution argued that the county court "erred as a matter of law in concluding that probable cause was not established as to Count I." After conducting a hearing, the district court agreed with the county court "that there is not probable cause to believe that the defendant's actions--that she was aware that her actions were practically certain to cause the result that it [sic] did, and, therefore, the motion to file the charge directly in district court is denied." The defendant was arraigned on the reckless manslaughter charge and she entered a plea of not guilty.

The prosecution filed a notice of appeal in this court, asking us to reverse the orders entered below and remand the case for reinstatement of the original charges.

II.

The issue before us is whether the district court abused its discretion in denying the prosecution's motion to file a direct information. Holmes v. District Court, 668 P.2d 11, 14 (Colo.1983); People v. Freiman, 657 P.2d 452, 453 (Colo.1983). This ruling was based on the court's conclusion that the county court correctly ruled that there was insufficient evidence to find probable cause on the charge of second degree murder.

The purpose of a preliminary hearing is "to determine if there is probable cause to believe that an offense has been committed and that the person charged committed it." § 16-1-104(14), 8A C.R.S. (1986). Probable cause must be established as to each element of the crime charged. People v. Moyer, 670 P.2d 785, 791 (Colo.1983). If the county court dismisses a charge after the preliminary hearing for lack of probable cause, the only remedy available to the prosecutor is to request leave to file a direct information in the district court. If the district court denies that request, its decision may be appealed. People v. Freiman, 657 P.2d 452, 454 (Colo.1983). "This court generally discourages appeals involving sufficiency of the evidence determinations. However, where ... the evidence is sufficient as a matter of law to establish probable cause, and a reversal of the trial court's dismissal is required, we will entertain the appeal." People v. Holder, 658 P.2d 870, 871 (Colo.1983); People v. Hrapski, 658 P.2d 1367, 1368 (Colo.1983), on appeal after remand, 718 P.2d 1050 (Colo.1986).

At a preliminary hearing the prosecution must provide sufficient evidence "to induce a person of ordinary prudence and caution to a reasonable belief that the defendant committed the crimes charged." People v. Williams, 628 P.2d 1011, 1014 (Colo.1981). The prosecution is not required to present evidence "sufficient to support a conviction." Id. The judge presiding at a preliminary hearing is required to apply the law to the prosecution's case. People v. Cisneros, 193 Colo. 380, 383, 566 P.2d 703, 705 (1977). "[I]t is not for the trial judge at a preliminary hearing to accept the defendant's version of the facts over the legitimate inferences which can be drawn from the People's evidence." Holder, 658 P.2d at 872. Hearsay and other incompetent evidence may properly comprise the bulk of the evidence at a preliminary hearing. Blevins v. Tihonovich, 728 P.2d 732, 734 (Colo.1986).

The test is whether the prosecution's evidence, taken alone and in a light most favorable to the prosecution, is sufficient to induce a reasonable belief that the defendant committed the crime with which she has been charged. Holder, 658 P.2d at 871. The following standards for determining probable cause at a preliminary hearing apply:

(1) Probable cause is established when the evidence is sufficient to induce a person of ordinary prudence and caution to a reasonable belief that ...