People v. Glaser, 08CA0411.

• Decision Date: 21 January 2010
• Docket Number: No. 08CA0411.,08CA0411.
• Parties: The PEOPLE of the State of Colorado, Plaintiff–Appellant,v.Douglas Alan GLASER, Defendant–Appellee.
• Court: Colorado Court of Appeals

250 P.3d 632

The PEOPLE of the State of Colorado, Plaintiff–Appellant,

v.Douglas Alan GLASER, Defendant–Appellee.

No. 08CA0411.

Colorado Court of Appeals, Div. III.

Jan. 21, 2010.

Mitchell R. Morrissey, District Attorney, Robert J. Whitley, Chief Appellate Deputy District Attorney, Ilene P. Buchalter, Deputy District Attorney, Denver, Colorado, for Plaintiff–Appellant Thomas J. Hammond, P.C., Thomas J. Hammond, Denver, Colorado; Michael J. Heher, Corvallis, Oregon, for Defendant–AppelleeOpinion by Judge MILLER.

The prosecution appeals the trial court's order dismissing forty-two felony charges filed against defendant, Douglas Alan Glaser. The court determined that defendant's federal and state constitutional rights to a speedy trial had been violated. We reverse and remand for reinstatement of the charges.

As the trial court aptly observed, the procedural history of this case is extraordinarily “tortured and star-crossed.” Among other things, eight rescheduled trial dates, two mistrials, three replacements of defense counsel (including one because of a suicide and another because of a mental breakdown mid-trial), one interlocutory appeal by the prosecution, and two petitions to the supreme court by defendant preceded entry of the dismissal order. Approximately one year later, the United States Supreme Court issued an opinion changing the landscape of constitutional speedy trial challenges in a manner material to this case.

We begin by summarizing the relevant principles of law that must be kept in mind when navigating that procedural history (set forth below in section II).

I. Applicable Law

A. Constitutional Speedy Trial Rights

Both the Sixth Amendment and article II, section 16 of the Colorado Constitution guarantee an accused the right to a speedy trial. People v. Small, 631 P.2d 148, 154 (Colo.1981). Under both provisions, the right to a speedy trial attaches with the filing of a formal charge or with a defendant's arrest. United States v. Marion, 404 U.S. 307, 320, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971); People v. Chavez, 779 P.2d 375, 376 (Colo.1989); People v. Melanson, 937 P.2d 826, 831 (Colo.App.1996). “[T]he defendant has the burden of proving that his constitutional speedy trial right has been denied.” Small, 631 P.2d at 154.

The determination of such a claim is measured by an ad hoc balancing of four factors: the length of the delay, the reasons for the delay, the defendant's assertion or demand for a speedy trial, and prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); Small, 631 P.2d at 154; see also Chavez, 779 P.2d at 376 (the Barker test also governs the determination of a speedy trial claim made under article II, section 16 of the Colorado Constitution). “None of those four factors is indispensable to a finding that speedy trial has been denied. Nor is any one of them [i]pso facto sufficient to require such a finding. Rather all are interrelated and must be considered together with any other relevant circumstances.” Gelfand v. People, 196 Colo. 487, 489–90, 586 P.2d 1331, 1332 (1978).

Although these factors must be considered in combination, the length of the delay must be at least presumptively prejudicial before further inquiry into the other factors is warranted. Moody v. Corsentino, 843 P.2d 1355, 1363–64 (Colo.1993). There is no established time period that automatically constitutes undue delay. Id. at 1364. But in Doggett v. United States, 505 U.S. 647, 652 n. 1, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992), the Supreme Court noted that, depending on the nature of the charges, generally lower courts have found post-accusation delay to be “presumptively prejudicial” as it approaches one year.

Here, the trial court issued a thoughtful thirty-four-page decision applying the foregoing principles without the benefit of the United States Supreme Court's subsequent decision in Vermont v. Brillon, –––U.S. ––––, 129 S.Ct. 1283, 1291, 173 L.Ed.2d 231 (2009). In Brillon, the Court held that, for purposes of constitutional speedy trial analysis, delay caused by a defendant's counsel is attributable to the defendant under the second Barker factor, irrespective of whether counsel is publicly assigned. See also Lopez v. People, 113 P.3d 713, 716 (Colo.2005) (a decision of the United States Supreme Court is to be applied in cases that are pending on direct appeal when the opinion is announced). This development is important because, as detailed below in section II, much of the delay in this case occurred when defendant's first two court-appointed attorneys became unavailable due to death and serious mental illness, respectively, and, in its order of dismissal, the trial court attributed these periods of delay to the state because both attorneys were paid for by the state.

B. Standard of Review

An appellate court will not disturb the factual findings underlying a trial court's constitutional speedy trial determination if the findings are supported by the record. Chavez, 779 P.2d at 378. However, a trial court's application of the four Barker factors is subject to de novo review. See, e.g., United States v. Molina–Solorio, 577 F.3d 300, 304 (5th Cir.2009) (the appropriate standard of review of the district court's application of the Barker factors is de novo, citing decisions from other circuits); People v. Slender Wrap, Inc., 36 Colo.App. 11, 19, 536 P.2d 850, 855 (1975) (implicitly utilizing de novo review to reverse a trial court's determination that the defendant's constitutional speedy trial rights had been violated); see also People v. Matheny, 46 P.3d 453, 462 (Colo.2002) (“the application of the controlling legal standard to the facts established by the evidence and found by the trial court is a matter for de novo appellate review, at least where constitutional rights are concerned”).

C. Statutory Speedy Trial Right

As noted above, the trial court based its order of dismissal exclusively on constitutional grounds. However, when conducting its Barker analysis and determining responsibility for a period of delay occasioned by the first substitution of counsel, the court made a finding that it had committed statutory speedy trial error by not determining whether new counsel might be located who could be prepared for trial before the existing speedy trial deadline expired (as explained in greater detail in section III). Further, many of the court's scheduling decisions were driven by its concern for the statutory speedy trial deadline. Therefore, reviewing the relevant statutory speedy trial provisions will establish a context for better understanding the procedural history.

As a general rule, a defendant must be brought to trial within six months after arraignment. § 18–1–405(1), C.R.S.2009. However, any period of delay “caused at the instance of the defendant” shall be excluded from the six-month speedy trial period. § 18–1–405(6)(f), C.R.S.2009. Further, if a substitution of defense counsel necessitates the rescheduling of a trial date, the statutory six-month period begins anew from the date that the continuance is granted. § 18–1–405(3), C.R.S.2009; see People v. Wilson, 972 P.2d 701, 705 (Colo.App.1998).

Of particular significance to the present controversy, the supreme court has explained that, when a period of delay is attributable to the substitution of a defendant's counsel, a special inquiry is required:

When a trial court is required to substitute defense counsel, the defendant's right to effective assistance of counsel may be jeopardized by the strict adherence to the statutory speedy trial right because the substitute counsel has inadequate time to prepare. Under such circumstances, we have held that charging a continuance of the trial date to the defendant is appropriate if continuing the trial date is necessary to allow new counsel to prepare for trial. In order to reach such a conclusion, however, the record must support the trial court's conclusion that the delay in derogation of the defendant's statutory right to a speedy trial was necessary to protect his constitutional right to effective assistance of counsel.

People ex rel. Gallagher v. Dist. Court, 933 P.2d 583, 588–89 (Colo.1997) (citations omitted).

II. Procedural History

Because of the highly fact-intensive nature of a constitutional speedy trial inquiry, we provide a detailed summary of the proceedings that led to the trial court's dismissal of the charges.

A. Initial Charges and Arrest

On February 20, 2005, defendant was driving a car when he was involved and injured in an accident. According to the investigating officer, defendant identified himself as “Michael Douglas Glaser” and presented a passport issued in that name, which the officer did not retain. After defendant left for the hospital by ambulance, the officer quickly learned defendant's real name, determined that his driver's license had been revoked, and obtained a warrant to search his home and car for evidence relating to the fraudulent passport. Although the search did not result in the recovery of the passport, the officers seized many other items, including two other passports (one issued in the name of Douglas Michael Glausen, and one issued in the name of Douglas Alan Glaser), two birth certificates with names corresponding to those on the two seized passports, a gun, several credit cards issued in the name of Douglas Glausen, and some prescription pharmaceutical containers with labels indicating that the prescriptions had been issued to Douglas Glausen.

Defendant was arrested on the same day as the accident and the search, February 20, 2005. The next day, he posted a $2,000 bond and was released from custody.

On February 24, 2005, police officers obtained a second warrant authorizing a search of defendant's office for evidence of securities fraud.

On March 2, 2005, the prosecution filed an eight-count complaint charging defendant with forgery, possession of a forged instrument, two counts of...