People v. Freeman

• Decision Date: 28 August 1978
• Docket Number: No. 27687,27687
• Citation: 583 P.2d 921,196 Colo. 238
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Tom FREEMAN, Defendant-Appellee.
• Court: Colorado Supreme Court

Page 921

583 P.2d 921

196 Colo. 238

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Tom FREEMAN, Defendant-Appellee.

No. 27687.

Supreme Court of Colorado, En Banc.

Aug. 28, 1978.

Robert L. Russel, Dist. Atty., David H. Zook, Deputy Dist. Atty., Colorado Springs, for plaintiff-appellant.

Carvell & Mullens, Steven U. Mullens, Colorado Springs, for defendant-appellee.

ERICKSON, Justice.

This is an appeal from an order by the El Paso County District Court which dismissed a felony menacing charge against the defendant, Tom Freeman. We reverse the order of dismissal.

On April 29, 1976, an information was filed in El Paso County District Court charging the defendant, in two counts, with second-degree assault, section 18-3-203, C.R.S.1973, and felony menacing, section 18-3-206, C.R.S.1973. The charges stemmed from a "barroom brawl" which took place on April 22, 1976, in Widefield, Colorado. At the preliminary hearing on May 10, 1976, evidence was produced which indicated that during the same criminal episode the defendant had also menaced another person, Joe Sochovka. At the close of the preliminary hearing, the case was bound over the trial. Several days later, the district attorney filed a motion to amend the information to add a third count of felony menacing as to the victim, Joe Sochovka. The motion was denied by the trial court under its discretionary powers. Trial was set for May 17, 1977.

On March 4, 1977, the district attorney filed a new information in the El Paso County District Court charging the defendant with one count of felony menacing as to the victim, Joe Sochovka. The actions were joined for trial on March 17, 1977. The defendant filed a motion to dismiss, inter alia, the new felony menacing charge on the ground that it was a violation of Crim.P. 8(a), which provides:

"If several offenses are known to the prosecuting attorney at the time of commencing the prosecution and were committed within his judicial district, all such offenses upon which the prosecuting attorney elects to proceed must be prosecuted by separate counts in a single prosecution if they are based on the same act or series of acts arising from the same criminal episode. Any such offense not thus joined by separate count cannot thereafter be the basis of a subsequent prosecution."

The trial court granted the motion and dismissed the third count, finding that the district attorney had "constructive knowledge" of the offense at the time the original charges were filed.

Most of the arguments in the trial court and on appeal were directed to the question of whether the prosecutor is required to have actual or constructive knowledge of the other offenses before the proscription of Crim.P. 8(a) becomes effective. We do not reach this point, since this case must be resolved on other grounds.

In their last term, the United States Supreme Court held that jeopardy attaches at the time the jury is sworn, Crist, Warden, Montana State Penitentiary, et al. v. Bretz, et al., --- U.S. ----, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978), or when the case is dismissed on grounds relating to criminal liability, United States v. Scott, --- U.S. ----, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978). These rules are applicable to the states under Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969).

Underpinning Crim.P. 8(a) and its statutory counterpart, section 18-1-408(2), C.R.S.1973, are concepts tied to double jeopardy. People v. District Court, 183 Colo. 101, 515 P.2d 101 (1973). The rule is designed to prevent the state from bringing successive prosecutions for the same criminal conduct and from filing duplicitous charges. People v. Cooke, 186 Colo. 44, 525 P.2d 426 (1974). Neither the rule nor the statute requires the prosecution to set forth all offenses which ...