People v. Milton

• Decision Date: 23 February 1987
• Docket Number: No. 85SA26,85SA26
• Citation: 732 P.2d 1199
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Kenneth Eugene MILTON and One 1973 Chevrolet Suburban Automobile, Blue and White Color, Vin. # CCQ63F168646, Defendants-Appellants.
• Court: Colorado Supreme Court

Page 1199

732 P.2d 1199

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Kenneth Eugene MILTON and One 1973 Chevrolet Suburban

Automobile, Blue and White Color, Vin. #

CCQ63F168646, Defendants-Appellants.

No. 85SA26.

Supreme Court of Colorado,

En Banc.

Feb. 23, 1987.

Duane Woodard, Atty. Gen. Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Dolores Atencio, Asst. Atty. Gen., Denver, for plaintiff-appellee.

Jeffrey K. Holmes, Denver, for defendants-appellants.

QUINN, Chief Justice.

Kenneth Eugene Milton, the defendant in the trial court, appeals from a judgment ordering the forfeiture of a station wagon which Milton owned and used in the commission of a robbery. He challenges the judgment on several grounds: that the Colorado Abatement of Public Nuisance Statute (Public Nuisance Statute), §§ 16-13-301 to -316, 8A C.R.S. (1986), pursuant to which his vehicle was forfeited, is unconstitutional; that the trial court erred in construing the Public Nuisance Statute to allow the forfeiture of the entire vehicle rather than its contents only; that because the People failed to file a trial data certificate, the trial court should not have allowed the People's witnesses to testify at trial; and that the People's evidence was insufficient to support the judgment. ¹ Finding his claims to be without merit, we affirm the judgment.

I.

Section 16-13-303(1)(i) of the Public Nuisance Statute defines a class 1 public nuisance to include a vehicle used in the commission of a felony. Section 16-13-303(2) states that a vehicle which is determined to be a public nuisance is "subject to seizure, confiscation, and forfeiture ... unless the possession of said property is not unlawful and the owner of said property was not a party to the creation of the nuisance and would suffer undue hardship by sale, confiscation, or destruction of the property." If the court determines that a seized vehicle is to be forfeited, the vehicle must be disposed of in accordance with the provisions of section 16-13-311(3), which, as pertinent here, require the forfeited vehicle either to be sold, with the sale proceeds applied as set forth in that section, ² or delivered to the seizing agency if the court finds that the agency can make use of the vehicle.

On November 19, 1981, the People filed a complaint in the Adams County District Court, alleging that Kenneth Eugene Milton and Paul Robert Campbell were co-owners of a 1973 Chevrolet Suburban motor vehicle and used the vehicle to commit an aggravated robbery in Adams County on September 17, 1981. ³ The People sought to have the vehicle adjudged a class 1 public nuisance and forfeited to the state of Colorado. Milton by answer admitted an ownership interest in the vehicle, denied having used the vehicle in the commission of aggravated robbery, and alleged that the forfeiture provisions of the Public Nuisance Statute were in violation of double jeopardy prohibitions of the United States and Colorado Constitutions, U.S. Const. amend. V and XIV; Colo. Const. art. II, § 18, the Colorado constitutional prohibition against forfeiture of estate, Colo. Const. art. II, § 9, and his constitutional and statutory rights to a speedy trial, Colo. Const. art. II, § 16; § 18-1-405, 8A C.R.S. (1986).

The case against Milton was tried to the court on August 26, 1983. Before testimony was taken, the court heard and denied Milton's constitutional challenges. The court also denied Milton's motion to prohibit the People from calling any witnesses due to their failure to file a trial data certificate in accordance with C.R.C.P. 121, section 1-18(1)(a). During the hearing on the motion Milton's attorney acknowledged that the district attorney had provided him with the People's entire file a week earlier and that he (Milton's attorney) had made copies of approximately 200 pages of discoverable material.

At the commencement of the trial the court, pursuant to the People's request and based on the contents of the file in the Adams County District Court criminal action previously brought against Milton, took judicial notice of the following facts: that on February 16, 1983, Milton pled guilty to robbery, § 18-4-301, 8B C.R.S. (1986), by taking money from the person of Mary Kathryn Whittenmore on September 17, 1981, in Adams County, Colorado; that the charge of aggravated robbery was dismissed pursuant to a plea agreement; and that Milton was sentenced to a term of four years and was later released to federal authorities. The People then called four witnesses, including the victim of the robbery, Mary Kathryn Whittenmore. She testified that on September 17, 1981, she was working in Majestic Savings and Loan on East Colfax Avenue in Adams County, when Milton entered the bank with a gun and robbed her of approximately $600. Other witnesses also testified to Milton's use of the 1973 Chevrolet Suburban motor vehicle in driving to and fleeing from the scene of the robbery, and to his arrest a short time later while he was in the vehicle and in possession of the stolen money. Milton's motion for a judgment of dismissal at the close of the People's evidence was denied, and he offered no evidence in defense of the forfeiture action.

The trial court found that Milton had committed robbery on September 17, 1981, when he took money belonging to Majestic Savings and Loan from one of Majestic's employees; that the Chevrolet Suburban motor vehicle, which Milton had used in the commission of and escape from the robbery, was an instrumentality of the robbery and was intimately connected to it; and that the People had proven all of the elements of the forfeiture action. The court concluded that the vehicle was a class 1 public nuisance and ordered it forfeited for delivery to the Aurora Police Department for its use. Milton's motion for a new trial was denied, and this appeal followed.

II.

Milton raises three constitutional challenges to the order of forfeiture entered pursuant to the Public Nuisance Statute. We will consider each argument separately.

A.

Milton claims that he was subjected to two separate prosecutions and two punishments--imprisonment on his guilty plea and forfeiture of his automobile--in violation of the United States and Colorado constitutional prohibitions against twice being put in jeopardy for the same offense. U.S. Const. amend. V and XIV; Colo. Const. art. II, § 18. ⁴ We find no merit in his claim.

The double jeopardy provisions which proscribe multiple punishments for the same offense apply only to criminal or quasi-criminal proceedings, see United States v. One Assortment of 89 Firearms, 465 U.S. 354, 362, 104 S.Ct. 1099, 1104, 79 L.Ed.2d 361 (1984); One Lot Emerald Cut Stones and One Ring v. United States, 409 U.S. 232, 235-36, 93 S.Ct. 489, 492, 34 L.Ed.2d 438 (1972); Palmer v. A.H. Robins Co., 684 P.2d 187, 217 (Colo.1984), and thus can apply here only if a forfeiture proceeding brought under the Colorado Public Nuisance Statute is essentially criminal in nature. We are satisfied that a forfeiture action under the Public Nuisance Statute cannot be so characterized.

The United States Supreme Court has adopted a two-pronged test to determine whether a statutory forfeiture proceeding is essentially criminal in character and thus subject to the Double Jeopardy Clause of the United States Constitution: first, whether Congress expressly or impliedly indicated a preference for criminal or civil categorization; and second, in the event Congress did indicate an intention to treat a forfeiture proceeding as civil, whether the statutory scheme is so punitive either in purpose or effect as to negate congressional intention. One Assortment of 89 Firearms, 465 U.S. 354, 362-66, 104 S.Ct. at 1104-07.

In One Assortment of 89 Firearms, the Court held that a gun-owner's acquittal on criminal charges involving firearms did not preclude a subsequent forfeiture proceeding against those same firearms under 18 U.S.C. § 924(d) (1982). Applying the two-pronged test, the Court initially concluded that the design of the statute and the procedural mechanism for enforcement clearly indicated Congress's intent to treat the forfeiture action as a remedial civil action. Id. at 363, 104 S.Ct. at 1105. With respect to the second prong of the test, the Court observed that " '[o]nly the clearest proof' that the purpose and effect of the forfeiture are punitive will suffice to override Congress' manifest preference for a civil sanction" and that such proof was lacking in the statutory scheme under review. Id. at 365-66, 104 S.Ct. at 1106-07. ⁵ We adopt this same two-pronged test under the Colorado Double Jeopardy Clause.

The application of this test to Colorado's Public Nuisance Statute convinces us that forfeiture actions pursuant to the Colorado statutory scheme are essentially civil in nature. We initially note that the legislative terminology employed in the statute manifests a clear intent to treat a forfeiture action as a civil proceeding. The legislative declaration of policy in section 16-13-302 states that "every public nuisance shall be restrained, prevented, abated, and perpetually enjoined," thereby indicating that the primary purpose of the forfeiture action is to abate the public nuisance. The civil character of the statutory scheme is further demonstrated by section 16-13-307(3), which states that "[e]xcept as otherwise provided in [the statute], the practice and procedure in an action to abate a public nuisance shall be governed by the Colorado rules of civil procedure." In like manner, section 16-13-307(5) states that the summons for an action to abate a public nuisance shall be issued and served "as in civil cases," except that a copy of the complaint and any orders issued by the court at the time of filing "shall be served with the summons."

Furthermore, we find nothing in the statutory scheme that is so punitive in either purpose or effect as to negate the legislature's expressed...