People v. Hampton

• Decision Date: 25 February 1985
• Docket Number: No. 82SA575,82SA575
• Citation: 696 P.2d 765
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Charles HAMPTON, Defendant-Appellant.
• Court: Colorado Supreme Court

Page 765

696 P.2d 765

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Charles HAMPTON, Defendant-Appellant.

No. 82SA575.

Supreme Court of Colorado En Banc.

Feb. 25, 1985.

Rehearing Denied March 25, 1985.

L. Duane Woodard, Atty. Gen., Charles B. Howe, Deputy Atty. Gen., Joel W. Cantrick, Sol. Gen., Nathan B. Coats, Chief, Crim. Appeals Asst. Atty. Gen., Denver, for plaintiff-appellee.

David Vela, Colorado State Public Defender, James England, Deputy State Public Defender, Denver, for defendant-appellant.

QUINN, Justice.

Charles Hampton, the defendant, appeals his convictions for aggravated robbery, conspiracy to commit aggravated robbery, and the commission of a crime of violence. He claims he was denied his statutory right to a speedy trial and that reversible error occurred when the trial court precluded him from eliciting testimony from two alibi witnesses because of his failure to comply with Crim.P. 12.1, which requires timely notification to the prosecuting attorney of the alibi defense and the names and addresses of alibi witnesses. We conclude that the defendant was not denied his statutory right to a speedy trial, but that the trial court failed to determine in accordance with appropriate standards whether there was good cause to admit the alibi evidence in spite of the defendant's noncompliance with the notification requirements. We therefore vacate the defendant's convictions and remand the case for further proceedings. ¹

I.

The defendant was charged in the District Court of El Paso County with aggravated robbery, ² conspiracy to commit aggravated robbery, ³ and the commission of a crime of violence involving the use of a deadly weapon. ⁴ The charges arose out of the robbery of an employee of Furr's Cafeteria in Colorado Springs on August 14, 1977, by three masked gunmen. The defendant was arraigned on September 26, 1977, and entered a plea of not guilty. ⁵ Three days later, on September 29, 1977, the prosecuting attorney, pursuant to Crim.P. 12.1, served on the defendant a written notice specifying the time of the offenses as Sunday, August 14, 1977, between 9:00 p.m. and 10:00 p.m., and the place of the crime as Furr's Cafeteria, 2206 E. Pikes Peak Avenue, Colorado Springs, Colorado. The notice made demand on the defendant to serve on the prosecuting attorney a written statement designating the place where the defendant claimed to have been when the crimes were committed and the names and addresses of any alibi witnesses. The defendant did not respond to the prosecuting attorney's request, but instead filed a motion to suppress evidence.

On January 27, 1978, the trial court granted the defendant's motion to suppress certain evidence obtained from a search of an automobile. Five days later, on February 1, 1978, the People simultaneously filed with the clerk of the trial court a motion for rehearing and a notice of interlocutory appeal. On March 3, 1978, the trial court denied the petition for rehearing, whereupon the People filed an amended notice of interlocutory appeal with the clerk of the district court.

This court reversed the trial court's suppression order on September 25, 1978, and the same day a mandate was issued to the trial court. The defendant, however, requested that this court reconsider its opinion because of an alleged factual mistake. The mandate was recalled on October 23, 1978, and approximately three weeks later, on November 13, 1978, a new opinion was announced, again reversing the suppression order, People v. Hampton, 196 Colo. 466, 587 P.2d 275 (1978), and a mandate was issued returning jurisdiction to the trial court.

On October 16, 1978, after the first mandate had issued but before it had been withdrawn, the trial court, acting on the prosecution's request, scheduled the defendant's trial for November 27, 1978. Although the trial court and the prosecuting attorney had apparently calculated this date to be within the statutory speedy trial period, defense counsel had not determined as of that date how much time, if any, remained on the statutory speedy trial term. Defense counsel, offering to waive the defendant's right to a speedy trial, requested the court to set the trial in January 1979, because he needed more time to prepare a defense. When the court refused the request for a later trial date, defense counsel expressly stated that his previous offer should not be construed as a waiver of the defendant's right to a speedy trial. Subsequent to the trial setting, the defendant filed a motion to dismiss on grounds that his statutory right to a speedy trial had been denied. This motion was heard and denied by the trial court on November 27, 1978, prior to the commencement of jury selection.

Approximately twelve days prior to trial, defense counsel learned, apparently for the first time, of three potential alibi witnesses. Because the defense investigator had difficulty in contacting and interviewing these witnesses, it was not until November 24, 1978, that defense counsel orally notified the district attorney that he might present an alibi defense at trial. On November 28, while jury selection was still in progress, ⁶ defense counsel served on the prosecuting attorney and filed with the court a written notice of alibi. The notice stated that the defendant was at 5173 Sherman Street and 2909 Ivanhoe Street, Denver, Colorado, during the period of time designated in the prosecution's specification of time and listed the names and addresses of two alibi witnesses whom the defendant intended to call at trial. Three days later, during the prosecution's case, defense counsel disclosed the name and address of a third alibi witness who had apparently been interviewed by the defense investigator on the preceding day.

At the close of the People's case, the prosecuting attorney requested the court to exclude the defendant's alibi evidence on the ground that defense counsel had failed to inform the prosecuting attorney, as required by Crim.P. 12.1, of the names and addresses of alibi witnesses within a reasonable time after service on the defendant of the prosecution's specification of the time when and the place where the defendant committed the crimes charged. It was defense counsel's position that his notification to the prosecuting attorney upon making the decision to present the alibi defense satisfied the requirements of Crim.P. 12.1. In considering the prosecution's motion, the trial court received testimony, outside the presence of the jury, from the defense investigator concerning the difficulty he experienced in contacting the alibi witnesses. The prosecuting attorney, upon questioning by the trial judge, acknowledged that his investigator had recently conducted an interview of all three alibi witnesses. At the conclusion of the hearing, the trial court summarily granted the prosecution's motion to exclude the defendant's alibi evidence, but gave no reasons for its ruling and did not state of record what factors, if any, it considered in applying the exclusion sanction.

The defendant presented no evidence in his defense and was convicted of aggravated robbery, conspiracy to commit aggravated robbery, and a crime of violence. He was sentenced to a term of ten to fifteen years for aggravated robbery and a concurrent indeterminate term not to exceed ten years for conspiracy to commit aggravated robbery. ⁷ This appeal followed.

II.

We first address the defendant's speedy trial claim. He essentially argues that, excluding from the six month statutory period any legitimate period of delay caused by the prosecution's interlocutory appeal, the commencement of the trial on November 27, 1978, was in violation of his statutory right to a speedy trial, with the result that any judgment of conviction entered in this case must be reversed. We reject the defendant's argument.

Section 18-1-405(1), 8 C.R.S. (1973), states that, except as otherwise provided in that section, the defendant must be tried within six months after the entry of a not guilty plea or the pending charges must be dismissed with prejudice. Subsection (6)(b), which is critical to the issue raised here, expressly excludes from the six month speedy trial term "[t]he period of delay caused by an interlocutory appeal whether commenced by the defendant or by the prosecution." Since the defendant in this case was arraigned on September 26, 1977, the statutory six month period would have expired on March 27, 1978, in the absence of any delay caused by the prosecution's interlocutory appeal. ⁸ There is no dispute in this case that the interlocutory appeal filed by the prosecution did toll the running of the statutory six month period. The questions raised by the defendant center on the precise date on which the tolled period commenced and the time properly includable within the tolled period.

The defendant's argument, as we perceive it, proceeds as follows: (1) the prosecution's filing of a motion for rehearing with the trial court on February 1, 1978, suspended the effect of the interlocutory appeal until March 3, 1978, when the trial court denied the petition for rehearing and the prosecution filed its amended notice of appeal, with the result that there were only twenty-four days then remaining on the statutory speedy trial term upon final resolution of the interlocutory appeal; (2) in addition to the tolled period from March 3 to September 25, 1978, when this court issued its initial mandate after reversal of the trial court's suppression order, the only other period of delay properly includable within the tolled period is the period from October 23 to November 13, 1978, when this court had under advisement the defendant's motion to reconsider the judgment reversing the trial court's order of suppression; and (3) because there were only twenty-four days remaining on the speedy trial period when the People's amended notice of interlocutory appeal was filed on March 3, 1978, the statutory six...