People v. Holloway

• Decision Date: 03 August 1982
• Docket Number: No. 81SA131,81SA131
• Citation: 649 P.2d 318
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Tony Ray HOLLOWAY, Defendant-Appellee.
• Court: Colorado Supreme Court

Page 318

649 P.2d 318

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Tony Ray HOLLOWAY, Defendant-Appellee.

No. 81SA131.

Supreme Court of Colorado, En Banc.

Aug. 3, 1982.

Robert L. Russel, Dist. Atty., Keith Cross, Deputy Dist. Atty., Colorado Springs, for plaintiff-appellant.

J. Gregory Walta, Colorado State Public Defender, Barbara S. Blackman, Deputy State Public Defender, Denver, for defendant-appellee.

HODGES, Chief Justice.

The People appeal the district court's dismissal of second-degree burglary ¹ and criminal mischief ² charges filed against the defendant, Tony Ray Holloway. The court's dismissal was based on the prosecution's inadvertent destruction of police dispatch tapes. These tapes were deemed crucial to the defendant's misidentification defense. While we agree that the defendant's due process rights were violated by the destruction of the tape, we find the district court's dismissal of the charges is too severe a sanction under the circumstances. Accordingly, we reverse and order that the charges be reinstated.

Deputy Charles Revel of the El Paso County Sheriff's Office testified at the preliminary hearing that on the night in question, he responded to a police dispatch relaying a citizen complaint of a burglary in progress. He arrived at the residence, walked into the backyard, and heard the sliding glass door open on the second level. Shining his flashlight toward the door, he saw someone looking back at him. He yelled, "Police. Freeze." The individual ducked back into the house, and then fled out a downstair's door, heading in a southwesterly direction. Deputy Revel testified that he then broadcast the incident over the radio, describing the suspect as being a black male, approximately 20 years old, 5'4 tall, with an afro-type haircut, and wearing black pants and a dark-colored shirt. On cross-examination, Deputy Revel acknowledged that he had known the defendant for six years prior to this incident, and that in his broadcast description he did not provide the defendant's name, although at the time he felt he "knew who the person was."

Deputy William Gay testified that he drove to the area to provide back-up support. He described Deputy Revel's broadcast as hurriedly given, presenting the suspect as a black male, of short build, and wearing dark clothing. As he arrived in the area, Deputy Gay observed the defendant walking along a street approximately one block east of the burglarized home. Deputy Gay confronted the defendant, who claimed he was en route home from a friend's house. He described the defendant as being out of breath and perspiring heavily. He also testified that upon seeing the defendant, Deputy Revel had exclaimed, "That's him."

Subsequent to the defendant's arrest, the police dispatch tapes were erased and reused. It was revealed that due to the limited number of tapes, each tape was reused every 30-35 days, unless otherwise preserved. This erasure was brought to the defense counsel's attention after the preliminary hearing. A motion to dismiss was filed asserting that the defendant's due process rights had been violated. Following a hearing, the court dismissed the case.

In People v. Morgan, 199 Colo. 237, 606 P.2d 1296 (1980), we provided the guidelines for determining whether a defendant's due process rights have been violated when evidence has been lost or destroyed. Quoting from earlier cases, we noted that the three-prong test is:

"(1) Whether the evidence was suppressed or destroyed by the prosecution; (2) whether the evidence is exculpatory; and (3) whether the evidence is material to the defendant's case."

If it is determined that the defendant's due process rights have been violated, we will then review whether the trial court has fashioned an appropriate remedy, recognizing that the trial court has broad discretion in this regard. People v. Morgan, supra. See also People v. Poole, 192 Colo. 56, 555 P.2d 980 (1976).

Applying these guidelines to the facts of this case, there is no question but that the dispatch tapes were destroyed by the prosecution, albeit inadvertently, thus, the first test is met. Second, having shown that the tapes were "not merely incidental" to his theory of defense, the defendant has satisfied the next test. People v. Morgan, supra. In other words, having presented evidence that identification was clearly at issue and that the dispatch tape bore on this issue by containing the citizen complaint and Deputy Revel's broadcast, the defendant established "the reasonable possibility that the evidence could have been of assistance to the defense." People v. Morgan, supra. Third, since the tape was relevant to...