People v. Martinez, 25797
| Decision Date | 10 June 1974 |
| Docket Number | No. 25797,25797 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Moses I. MARTINEZ, Defendant-Appellant. |
| Court | Colorado Supreme Court |
John P. Moore, Atty. Gen., John E. Bush, Deputy Atty. Gen., Patricia W. Robb, Asst. Atty. Gen., Denver, for plaintiff-appellee.
Rollie R. Rogers, Colorado State Public Defender, James F. Dumas, Jr., Chief Deputy State Public Defender, Thomas M. Van Cleave, III, Deputy State Public Defender, Denver, for defendant-appellant.
This is an appeal from convictions of one count of burglary and two counts of theft. The appellant presents several issues, all related to one serious procedural error which requires remand to the trial court for a new suppression hearing. No errors are assigned which will not be resolved by the subsequent proceedings.
The defendant contends he was denied a meaningful impartial hearing on two motions to suppress because the trial judge could not be objective in his resolution of the motions.
The relevant facts which antedate the motion to suppress require but brief discussion. Martinez and one Maestas were charged with the burglary of, and theft from, a liquor store and theft from an automobile. They were arrested the day following the alleged incidents and placed in jail. While in custody, they gave an incriminatory statement to authorities, in which they admitted the commission of the crimes. The statement was recorded, transcribed and later admitted at trial.
At the hearing prior to trial on motion to suppress the statement, the district attorney failed to appear. Despite his absence, the court did not continue the matter but ordered the hearing to proceed. Following defense counsel's challenge of the voluntariness of the statement, the trial judge assumed the role of the district attorney. The court not only moved Sua sponte for the admission of the transcript of the preliminary hearing into evidence, but called witnesses for the People, examined them and cross-examined defense witnesses. He made Sua sponte objections to defense counsel's questions and ruled on objections made to his own questions--many leading ones.
In our view, this assumption of the role of advocate for the prosecution is inconsistent with the proper function of the judiciary and constitutes reversible error. The judiciary of this state is but one of the three branches of government, Colo.Const. Art. III, independent of the other two. The role of the judiciary, if its integrity is to be maintained, is one of impartiality. Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927); Canon 1, Colorado Code of Judicial Ethics (1973). The duty to be impartial cannot be fulfilled where, by his active role in the presentation of the prosecution's case, a trial judge calls witnesses, presents evidence and cross-examines defense...
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