People v. Gallagher, 27749

Citation194 Colo. 121,570 P.2d 236
Decision Date26 September 1977
Docket NumberNo. 27749,27749
PartiesThe PEOPLE of the State of Colorado, Petitioner, v. John F. GALLAGHER, District Court Judge, Fourth Judicial District, State of Colorado, Respondent.
CourtSupreme Court of Colorado

J. D. MacFarlane, Atty. Gen., Jean E. Dubofsky, Deputy Atty. Gen., Edward G. Donovan, Sol. Gen., Denver, Robert L. Russel, Dist. Atty., 4th Judicial District, Ronald T. Rowan, Asst. Dist. Atty., Colorado Springs, for petitioner.

Rollie R. Rogers, Colo. State Public Defender, James F. Dumas, Jr., Chief Deputy Public Defender, Denver, Kathleen A. Carlson, David L. Quicksall, Deputy State Public Defenders, Colorado Springs, for respondent.

CARRIGAN, Justice.

Pursuant to C.A.R. 21, the petitioner sought relief in the nature of prohibition. We issued a rule to show cause, and now discharge the rule.

Clyde William Haire was charged in the district court with seven counts of first-degree sexual assault (section 18-3-402, C.R.S. 1973), seven counts of first-degree kidnapping (section 18-3-301, C.R.S. 1973), various counts of aggravated robbery, attempt to commit aggravated robbery, and other crimes. The charges arose from incidents occurring on five dates, involving eight different victims. The respondent trial judge first ordered the counts severed, then rejoined the counts into three separate trials. The first two trials involved five of the victims; as to those counts, the defendant was tried, convicted, and sentenced. Those cases are not involved here.

This original proceeding arose from the third trial, which involved three of the victims and incidents on two separate days. The defendant moved to sever the counts before the trial began, but the trial court denied the motion. At the close of the prosecution's case, the defendant moved for a judgment of acquittal, again relying on the court's refusal to sever. The motion was denied. He renewed this motion at the close of all the evidence; it was again denied.

After the jury found the defendant guilty, he moved for a new trial, again asserting the court's refusal to sever. This time, the trial court granted the motion, stating in part:

"This whole thing, the whole question, has troubled me a good deal from the outset of this case, and I don't think until I actually tried the case did it really come home to me what the problem of trying two unrelated but similar incidents together in one trial is . . . .

"As I say, having actually gone through a trial now, doing it this way I am conscious of the prejudice of the Defendant, and it seems to me that prejudice clearly outweighs the benefits of saving time and money, which we gained by having only one trial."

The People seek relief in the nature of prohibition, arguing that the trial court abused its discretion in granting the new trial motion and thus forcing the People to try the defendant in two separate new trials. We hold that such extraordinary relief is not warranted.

Relief in the nature of prohibition is a proper remedy only in cases where the trial court is proceeding without jurisdiction or in excess of its jurisdiction, or has grossly abused its discretion. C.A.R. 21(a); City of Colorado Springs v. District Court, 184 Colo. 177, 519 P.2d 325 (1974). "When the action, threatened action or refusal to act is within the discretion of the district court, prohibition or mandamus shall not be a remedy". C.A.R. 21(d) (emphasis added). In this case, although it is unfortunate that the expense and delay of new trials is the ultimate result, the trial court's ruling was clearly within its broad discretion, and we cannot disturb that ruling.

The rule of criminal procedure relating to joinder and severance of multiple counts provides as follows:

"If it appears that a defendant or the prosecution is prejudiced by a joinder of offenses . . . or by such joinder for trial together, the court may order an election or separate trials of counts . . . or provide whatever other relief justice requires. However, upon motion any defendant shall be granted a separate trial as of right if the court finds that the prosecution...

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14 cases
  • State v. Lewis
    • United States
    • West Virginia Supreme Court
    • July 6, 1992
    ... ... Hyder v. Superior Court, 128 Ariz. 216, 624 P.2d 1264 (1981) (petition for special action); People v. Gallagher, 194 Colo. 121, 570 P.2d 236 (1977) (writ of prohibition); Wilson v. State, 520 So.2d 566 (Fla.1988) (petition for certiorari); In re ... ...
  • People v. Whitman
    • United States
    • Colorado Court of Appeals
    • November 29, 2007
    ... ... We disagree ...         The decision of a trial court to grant or deny a new trial is a matter entrusted to the court's discretion and will not be disturbed on review absent an abuse of that discretion. People v. Gallagher, 194 Colo. 121, 124, 570 P.2d 236, 238 (1977); People v. Wadle, 77 P.3d 764, 766, 769 (Colo.App.2003), aff'd, 97 P.3d 932 (Colo.2004). In ruling on motions for new trial, however, trial courts are regularly called upon to resolve questions of fact and apply standards of law. Where there is a ... ...
  • People v. Poindexter
    • United States
    • Colorado Court of Appeals
    • June 20, 2013
    ... ... D. The Trial Court Did Not Err by Denying Defendant's Motion for New Trial Based on Newly Discovered Evidence 44 We review a trial court's denial of a motion for new trial for an abuse of discretion. People v. Gallagher, 194 Colo. 121, 124, 570 P.2d 236, 238 (1977). Motions for new trial based on newly discovered evidence are regarded with disfavor. Digiallonardo v. People, 175 Colo. 560, 568, 488 P.2d 1109, 1114 (1971). Even where a witness recants his or her testimony, which is not the case here, such ... ...
  • People v. Poindexter
    • United States
    • Colorado Court of Appeals
    • June 20, 2013
    ... ... D. The Trial Court Did Not Err by Denying Defendant's Motion for New Trial Based on Newly Discovered Evidence ...          ¶ 44 We review a trial court's denial of a motion for new trial for an abuse of discretion. People v. Gallagher, 194 Colo. 121, 124, 570 P.2d 236, 238 (1977). Motions for new trial based on newly discovered evidence are regarded with disfavor. Digiallonardo v. People, 175 Colo. 560, 568, 488 P.2d 1109, 1114 (1971). Even where a witness recants his or her testimony, which is not the case here, such ... ...
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