People v. McCormick, 92SC334
| Decision Date | 04 October 1993 |
| Docket Number | No. 92SC334,92SC334 |
| Citation | 859 P.2d 846 |
| Parties | The PEOPLE of the State of Colorado, Petitioner, v. Michael R. McCORMICK, Respondent. |
| Court | Colorado Supreme Court |
Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., John Daniel Dailey, Deputy Atty. Gen., Robert Mark Russel, First Asst. Atty. Gen., Clement P. Engle, Senior Asst. Atty. Gen., Denver, for petitioner.
Miller, Hale & Harrison, Daniel C. Hale, Boulder, for respondent.
In People v. McCormick, 839 P.2d 474 (Colo.App.1992), the court of appeals reversed the judgments of conviction and sentences imposed on Michael R. McCormick for murder and kidnapping, finding that the compulsory joinder provisions of section 18-1-408(2), 8B C.R.S. (1986), precluded the subsequent prosecution of the murder and kidnapping charges. It also remanded the case for further proceedings based on its determination that an incorrect standard of review was applied in evaluating whether Michael McCormick could enforce a plea agreement. We reverse the judgment of the court of appeals and remand the case to the court of appeals with directions to reinstate the judgments of conviction and sentences imposed for murder and kidnapping, and for review and determination of the issues raised by McCormick but not addressed by the court of appeals, and for further proceedings consistent with this opinion.
This case arises from the appeals of two separate trials, both held in the Jefferson County District Court. In the first trial, the trial court found Michael McCormick guilty of eleven felony counts related to theft and fraud (the "theft case"). In the second trial, a jury found Michael McCormick guilty of two counts of first-degree murder and one count of second-degree kidnapping (the "murder case"). The court of appeals consolidated the appeals from the two cases, but in deciding the consolidated appeal did not address several issues raised by Michael McCormick. We granted certiorari to determine whether the court of appeals erred in finding that the subsequent prosecution of the murder cases was barred by the compulsory joinder provisions of section 18-1-408(2) and to determine the appropriate standard to be applied in evaluating whether a defendant has breached a plea agreement.
On August 30, 1983, Bert Donoho did not appear at a truck stop in Wheat Ridge, Colorado where he had agreed to meet a fellow truck driver. The same day, Donoho failed to call his wife as he had promised her. The Wheat Ridge Police Department and the Federal Bureau of Investigation were notified of these events and began an investigation into the disappearance of Donoho and his Kenworth truck and trailer.
In July 1984, the missing truck was located in Oregon. The investigation by law enforcement officials revealed that the truck was purchased at an auction in Arizona on consignment from Michael McCormick. The law enforcement officials, however, had no leads on Donoho and no firm evidence to connect Michael McCormick with his disappearance.
In January 1985, a statewide grand jury was convened in Denver at the direction of the Attorney General of the State of Colorado to investigate various complex criminal schemes that extended beyond the borders of a single county. Beginning in March 1985, Francis Oldham, an assistant Attorney General for the State of Colorado, presented evidence to the grand jury concerning various plans of Michael McCormick that involved the theft and sale of motor vehicles for financial gain.
In June 1985, the statewide grand jury returned a fourteen-count indictment against Michael McCormick. 1 Five of the fourteen counts either arose out of, or were related to, the theft of Donoho's truck and trailer. While the investigation of the theft and fraud charges produced evidence that was sufficient to indict Michael McCormick for the fourteen charges returned by the statewide grand jury, there was no evidence that would establish that Michael McCormick was involved in the disappearance and suspected murder of Donoho.
Venue for the theft case was designated in Jefferson County. Oldham was appointed pursuant to section 20-1-201(1)(c), 8B C.R.S. (1986), as a Special Deputy District Attorney for the First Judicial District to prosecute the fourteen-count indictment, and the trial in the theft case was set for April 1986, before Judge Polidori.
Michael McCormick was arrested on the theft indictment in California in July 1985, and was extradited to Colorado. After making bail, he fled to Nebraska, where he was once again arrested and returned to Colorado. Michael McCormick subsequently professed to have knowledge regarding the disappearance and the suspected murder of Donoho. Oldham began negotiating with the public defender representing Michael McCormick regarding a plea agreement in the theft case in exchange for the information concerning Donoho. In January 1986, Michael McCormick and Oldham executed a written plea agreement. See Appendix A.
Under the terms of the plea agreement, Michael McCormick promised to (1) "truthfully, faithfully, and fully provide accurate and verifiable information" concerning the homicide of Donoho and any other homicide of which he had knowledge; (2) assist law enforcement officials in locating the body of Donoho; (3) "co-operate fully and freely with the State in its investigation;" and (4) take and pass a polygraph test that would unequivocally demonstrate that he was truthful in stating that he had not personally killed any of the victims on which he gave information and had truthfully identified the killer.
The plea agreement provided that Michael McCormick would serve a period of actual incarceration of approximately two years for any convictions arising from the pending indictment in the theft case if he fulfilled his obligations under the agreement. The prosecution also promised not to charge or prosecute Michael McCormick for any homicide on which he provided information, as long as he was not the one who perpetrated the murder.
The parties agreed, however, that the plea agreement would be null and void ab initio if evidence, other than that which was derivative from Michael McCormick's statements, established probable cause that Michael McCormick personally committed the homicide of Donoho, or any other verifiable homicide. In such a case, both parties would be released from all obligations under the plea agreement.
Following the execution of the plea agreement and a subsequent waiver of his Fifth Amendment privilege against self-incrimination, Michael McCormick made a series of detailed statements to investigators concerning the disappearance of Donoho. He identified his father, Thomas McCormick, as the person who murdered Donoho. He also led law enforcement officials to a grave site, where they recovered Donoho's skeletal remains. Michael McCormick later passed a polygraph examination.
Thomas McCormick was subsequently arrested for first-degree murder. In March 1986, Michael McCormick testified at his father's preliminary hearing. Several credible witnesses called by defense counsel for Thomas McCormick contradicted Michael McCormick on significant points in his testimony. Nonetheless, the trial court found that there was probable cause to proceed with a first-degree murder trial against Thomas McCormick.
Later statements of Michael McCormick to the District Attorney's Office for the First Judicial District and law enforcement officials during interviews conducted during April and May 1986, contained a number of blatant inconsistencies regarding critical events. These subsequent statements directly implicated his brother, John McCormick, and also suggested Michael McCormick's estranged wife, Kathy McCormick, was involved in the murder of Donoho. In the later statements, Michael McCormick also admitted that he withheld information in his earlier statements. Throughout this period during the investigation, the District Attorney's Office for the First Judicial District continued to believe that Thomas McCormick committed the murder of Donoho.
Because of its misgivings concerning whether Michael McCormick was telling the truth, however, the District Attorney's Office for the First Judicial District continued to investigate his story. Investigators reinterviewed witnesses in an attempt to corroborate Michael McCormick's subsequent statements, but their efforts often contradicted, rather than supported his statements. By late June 1986, it was clear that Michael McCormick had been lying about his involvement in the disappearance of Donoho from the beginning and that he had breached the plea agreement. All of the evidence and the irrefutable conflicts in the various stories pointed to Michael McCormick as the murderer of Donoho. It was also obvious that a murder case against Thomas McCormick could not be proved because Michael McCormick was not a credible witness.
As a result of these considerations, the District Attorney's Office for the First Judicial District elected to nolle prosequi as to Thomas McCormick and to pursue murder charges against Michael McCormick. The District Attorney's Office for the First Judicial District informed the public defender representing Michael McCormick by letter dated and delivered on June 30, 1986, that it considered the plea agreement null and void because of Michael McCormick's failure to fulfill his obligations. 2 On July 9, 1986, the District Attorney's Office for the First Judicial District dismissed the murder charges against Thomas McCormick and filed an information charging Michael McCormick with the kidnapping and murder of Donoho. See infra section II.B.
On July 17, 1986, defense counsel for Michael McCormick filed two motions in the theft case. One motion sought the appointment of a Special Prosecutor and the...
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