People v. Garcia

• Decision Date: 29 April 1985
• Docket Number: No. 83SA261,83SA261
• Citation: 698 P.2d 801
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant and Cross-Appellee, v. Julie GARCIA, Defendant-Appellee and Cross-Appellant.
• Court: Colorado Supreme Court

Page 801

698 P.2d 801

63 A.L.R.4th 1051

The PEOPLE of the State of Colorado, Plaintiff-Appellant and Cross-Appellee, v. Julie GARCIA, Defendant-Appellee and Cross-Appellant.

No. 83SA261.

Supreme Court of Colorado,

En Banc.

April 29, 1985.

Dennis E. Faulk, Dist. Atty., Eleventh Judicial Dist., Canon City, Douglas A. Weddell, Special Prosecutor for the Eleventh Judicial Dist., Colorado Springs, Duane Woodard, Atty. Gen., Charles B. Howe Deputy Atty. Gen., Richard H. Forman, Solicitor Gen., Robert M. Petrusak, Asst. Atty. Gen., Denver, for plaintiff-appellant and cross-appellee.

William Gobin Fox, Canon City, for defendant-appellee and cross-appellant.

ERICKSON, Chief Justice.

In this consolidated appeal, ¹ both the prosecution and the defendant, Julie Garcia, appeal from rulings entered by the Fremont County District Court. The prosecution asserts that the district court abused its discretion in disqualifying the Fremont County District Attorney and his staff because a deputy district attorney was endorsed as a witness. In addition, the prosecution claims that the trial judge refused to impose a sentence in excess of the statutorily prescribed presumptive range in accordance with the requirements of section 18-8-212(3), 8 C.R.S. (1984 Supp.). The defendant challenges the constitutionality of section 18-8-212, 8 C.R.S. (1984 Supp.), which imposes criminal liability for failing to appear for trial or other proceedings in a case in which a bail bond has been filed. The defendant also asserts that the prosecution failed to establish a prima facie case with respect to a culpable mental element required by the statute. We affirm in part, reverse in part, and remand with directions.

I.

The defendant was originally charged in December 1980 with introduction of contraband in the first degree. § 18-8-203, 8 C.R.S. (1984 Supp.). A bond was posted for the release of the defendant, and she was subsequently convicted of the offense. Following her conviction and while still on bond, the defendant appeared before the district court on February 26, 1982, and was ordered to again appear on April 16, 1982, for rulings on her motion for new trial, and for sentencing. The defendant failed to appear on April 16, and a bench warrant was issued for her arrest. She was later arrested on the warrant in Las Vegas, Nevada, and was returned to Colorado on October 25, 1982.

As the result of the defendant's failure to appear at the April 16 proceeding, an information was filed by the Fremont County District Attorney's Office, charging her with violating the conditions of her bond. § 18-8-212(1), 8 C.R.S. (1984 Supp.). Inasmuch as Jeffrey Manning, the deputy district attorney who prosecuted the introduction of contraband charges, was endorsed on the information as a witness for the prosecution in the bond violation charge, the defendant moved to dismiss the charge or, alternatively, to disqualify the entire staff of the Fremont County District Attorney's Office from prosecuting the case. ² The district court refused to dismiss the charge, but disqualified the Fremont County District Attorney's Office on the basis that the presence in a single trial of two deputy district attorneys from the same office, acting in the separate capacities of prosecutor and witness, created an appearance of impropriety.

A special prosecutor from the El Paso County District Attorney's Office was appointed by the district court to prosecute the case, and the defendant was subsequently convicted of violating section 18-8-212(1). The defendant was sentenced to a term of one year at the Colorado State Penitentiary, to be served consecutively to her sentence for the introduction of contraband conviction.

II.

Prior to trial, the defendant filed a motion to disqualify the entire staff of the Fremont County District Attorney's Office because Jeffrey Manning was endorsed as a witness for the prosecution. ³ The motion was granted by the district court because the appearance of a witness who was also a member of the district attorney's staff that was prosecuting the case created "an appearance of impropriety." A special prosecutor from the El Paso County District Attorney's Office was thereafter appointed by the district court, who prosecuted the case. The prosecution now requests this court to determine whether the disqualification order was required as a matter of law. See § 16-12-102, 8 C.R.S. (1978). The record does not establish an abuse of discretion by the trial judge in ordering the disqualification of the Fremont County District Attorney's Office.

We have held that the determination of whether a district attorney should be disqualified in a criminal case when he or a member of his staff appears as a witness depends upon whether the testimony is of sufficient consequence to prevent a fair trial. Riboni v. District Court, 196 Colo. 272, 586 P.2d 9 (1978); People v. District Court, 192 Colo. 480, 560 P.2d 463 (1977); People v. Spencer, 182 Colo. 189, 512 P.2d 260 (1973). The Code of Professional Responsibility prescribes rules limiting the active appearance of a district attorney when he is also a necessary trial witness. See Code of Professional Responsibility DR 5-101(B) & DR 5-102, EC 5-9; Model Rules of Professional Conduct Rule 3.7 (Approved Draft 1983). ⁴ The basic reason for the limitation is to protect the integrity of the adversary process by separating the lawyer's role as an advocate from that of a witness. Advocacy is based on reason and is subject to objective evaluation, whereas testimony "is based on the witness' moral qualities and is evaluated in terms of individual credibility." Enker, The Rationale of the Rule that Forbids a Lawyer to be Advocate and Witness in the Same Case, Am.B.Found. Research J. 455, 463 (1977). The separation of the witness from the adversary process and from the advocacy function of the prosecutor is essential and forecloses a prosecutor from combining argument with fact or from impermissibly injecting his personal belief into arguments before the jury. See Code of Professional Responsibility, DR 7-106(C); Model Rules of Professional Conduct Rule 3.4(e).

At trial, Manning identified the defendant, described the conditions of her bail bond, and stated that the defendant was present at the hearing on February 26 when the order was entered for her to appear for further proceedings on April 16. ⁵ Manning stated that he observed the defendant when she was addressed by the court, and that she appeared to have no difficulty hearing or understanding the order. He also testified that although the defendant remained on bond, she did not appear at the April 16 hearing. Manning's testimony supported the prosecution's charge that the defendant was advised and understood the court's order directing her to appear for further proceedings. The testimony was relevant and necessary to prove the culpable mental state of "knowingly," which was an element of the offense charged. § 18-8-212, 8 C.R.S. (1984 Supp.). The disqualification of Manning was therefore proper. People v. Spencer, 182 Colo. 189, 512 P.2d 260 (1973).

The disqualification of the entire staff of the Fremont County District Attorney's Office was also, under the circumstances of this case, not an abuse of discretion. The Code of Professional Responsibility would require a private law firm to withdraw if an attorney associated with the firm was required to withdraw because of an ethical rule. See Code of Professional Responsibility DR 5-105(D). See, e.g., Armstrong v. McAlpin, 606 F.2d 28 (2d Cir.1979); Comden v. Superior Court, 20 Cal.3d 906, 145 Cal.Rptr. 9, 576 P.2d 971 (1978). The same rule of imputed disqualification may be considered in determining the ethical standards for disqualification of a public law firm, such as a district attorney.

However, under some circumstances, the interests protected by the ethical rules may not be endangered when a deputy district attorney appears as a witness and another attorney from the same office appears as an advocate. See Brown & Brown, Disqualification of the Testifying Advocate--A Firm Rule?, 57 N.C.L.Rev. 597 (1979); Enker, supra, at 465. We recognize that the prosecution of a criminal case by a district attorney in which a member of his staff appears as a prosecution witness may create an appearance of impropriety in the eyes of the public. But we are also mindful that "when we deal with what the public thinks, we must be careful not to accept the view of the most cynical as the true voice of the public, lest we accept a lack of faith in our institutions as a categorical basis for restricting otherwise quite ethical conduct." International Electronics Corp. v. Flanzer, 527 F.2d 1288, 1294 (2d Cir.1975) quoted in Greenebaum-Mountain Mortgage Company v. Pioneer Nat. Title Ins., 421 F.Supp. 1348, 1353 (D.Colo.1976).

In our view, the determination of whether a district attorney and his staff should be disqualified is a matter largely within the discretion of the district court. The trial court should consider whether disqualification appears reasonably necessary "to insure the integrity of the fact-finding process, the fairness or appearance of fairness of trial, the orderly or efficient administration of justice, or public trust or confidence in the criminal justice system." People ex rel. Younger v. Superior Court, 86 Cal.App.3d 180, 150 Cal.Rptr. 156, 158 (Cal.App.1978). The goal of the court should be to shape a remedy which will assure fairness to the parties and the integrity of the judicial process. Greenebaum 421 F.Supp. at 1353-54. Among the relevant factors to be considered by the court are the nature, relevance and necessity of the testimony, the size and degree of integration of the district attorney's staff, and the degree to which the testimony is contested.

In this case, the size of the prosecuting staff of which Manning was a member was relatively small. The testimony was relevant and necessary to...