People v. Noline, 94SC736

• Decision Date: 03 June 1996
• Docket Number: No. 94SC736,94SC736
• Parties: The PEOPLE of the State of Colorado, Petitioner, v. Raymond C. NOLINE, Respondent.
• Court: Colorado Supreme Court

Page 1256

917 P.2d 1256

The PEOPLE of the State of Colorado, Petitioner, v. Raymond C. NOLINE, Respondent.

No. 94SC736.

Supreme Court of Colorado En Banc.

June 3, 1996.

Rehearing Denied June 24, 1996.

A. William Ritter, Jr., District Attorney, Second Judicial District, Nathan B. Coats, Chief Deputy District Attorney, Everett Engstrom, Deputy District Attorney, Denver, for Petitioner.

David F. Vela, Colorado State Public Defender, Thomas M. Van Cleave, III, Deputy State Public Defender, Denver, for Respondent.

Justice MULLARKEY delivered the Opinion of the Court.

We granted the People's petition for certiorari in People v. Noline, 894 P.2d 1 (Colo.App.1994), to determine whether the grand jury can investigate a case and indict a defendant on felony charges after the county court has held a preliminary hearing and dismissed for lack of probable cause a felony complaint on the same charges and no additional evidence is presented to the grand jury. ¹ The court of appeals affirmed the district court's dismissal of the felony charges holding that the People have only two options after dismissal of a felony complaint by the county court: (1) appeal of the county court's determination to the district court, or (2) direct filing of an information in the district court subject to that court's permission. We reverse the decision of the court of appeals and hold that the People are not precluded by any statute, rule, case, or constitutional provision from proceeding with the action taken here. Grand jury presentment after the county court's dismissal is simply an alternate route to an appeal of the county court's probable cause determination to the district court.

I.

On June 21, 1992, Raymond C. Noline broke into the home of the victim in Denver, Colorado. The victim was out at the time and Noline hid in her basement awaiting her return. Shortly after she returned, a totally naked Noline confronted the victim in her bedroom. She was in the process of undressing and was clad only in her underwear. Noline became sexually aroused and grabbed the victim's wrists. The victim managed to break away after hitting Noline on the head with a high-heeled shoe. Noline fled out the back entrance of the house. He was not immediately apprehended, however, and he continued to stalk the victim.

On August 13, 1992, Noline, naked but for a pair of sneakers, finally was captured in the vicinity of the victim's home. Detective Lotspeich, a Denver police officer, testified at a preliminary hearing before the county court that during the course of his interview with the defendant, Noline admitted breaking into the victim's home on June 21, 1992, and also admitted going to the victim's residence prior to and after the incident and fantasizing sexually about her. On one prior occasion, Noline had offered to help the victim with some yard work and she refused the offer. Noline further informed Detective Lotspeich that he broke into the victim's home with the intent of having sex with her. Noline explained that he had the impression that they had "bonded" and would enter into a relationship. However, when things didn't work out as he intended them to, he ran out the back entrance while the victim ran out the front screaming for help.

On August 18, 1992, the People filed an information against Noline in the Denver County Court on one count of criminal attempt of first degree sexual assault pursuant to sections 18-2-101, 8B C.R.S. (1986), and 18-3-402, 8B C.R.S. (1986), and one count of second degree burglary pursuant to section 18-4-203, 8B C.R.S (1986). The county court held a preliminary hearing on September 16, 1992, and dismissed the complaint because it found there was no probable cause as to the offenses charged. ² The county court, however, bound the matter over for first degree criminal trespass pursuant to section 18-4-502, 8B C.R.S. (1995 Supp.), a lesser included offense.

The People did not appeal the decision of the county court as permitted under Crim. P. 5(a)(4)(IV). Nor did the People file a direct information in the district court under Crim. P. 5(a)(4)(V) and 7(c)(2). Instead, on September 17, 1992, the People initiated a motion to dismiss the charge of first degree criminal trespass which was granted by the district court. Earlier on that same day, the People presented the matter to the statutory grand jury impaneled in the City and County of Denver. After hearing the testimony of the victim and Detective Lotspeich, the grand jury returned an indictment against Noline for one count of criminal attempt of first degree sexual assault and one count of second degree burglary. The charges were identical to those previously heard and dismissed by the county court. Although the victim testified before the grand jury and did not testify at the preliminary hearing, the People do not assert that they presented additional or new evidence to the grand jury that was not presented to the county court. ³

Noline moved to dismiss the indictment on grounds that the People could not submit the matter to the grand jury after the county court dismissed the felony complaint for lack of probable cause after holding a preliminary hearing. The Denver District Court found probable cause to believe that Noline had committed the alleged offenses based on the evidence presented to the grand jury. Nevertheless, the court agreed with Noline and, by order dated January 14, 1993, dismissed the grand jury indictment. The written order specifically stated that Noline's motion to dismiss was granted because the prosecution failed to adhere to Crim. P. 5 and Crim. P. 7. The written order incorporated the oral findings of the district court in which the court made the following statements:

I would conclude that once the prosecution has proceeded by way of information and after a preliminary hearing resulting in dismissal of some of the charges, the remedies then become one of either appealing the decision to the district court or requesting of the district court to allow the direct filing of an information to include the charges previously dismissed at the county court level based on whatever factual basis may exist and which might suggest to the district court that it should exercise its discretion in that fashion.

... [I]t does not appear to me that the structure that we have, at least based on the comments that I've seen and discussed here from the prior courts, that the courts would purport to view the grand jury as some sort of appellate body for either review of county court or district court decisions. I do see that in perhaps making some limitations, the courts have placed those on the prosecution as opposed to otherwise, but in any event, they appear to exist. Otherwise, I would conclude that if in fact at any point in time prior to some jeopardy attaching, there is some district court decision which is inconsistent with the prosecution's position, then the grand jury might become a forum to start over, if you will, and sidestep those particular decisions. I would assume that this is inconsistent with the public policy which is described in the case of People v. Holmes as well as Stokes, which I have described moments ago.

Under the circumstances, I would conclude then that I should not honor the subsequent activity from the grand jury once it has been previously ruled upon by the county court and once it has been not been [sic] the subject of either an appeal or a request for a direct filing pursuant to the Criminal Rules 7(c)(2).

The court of appeals upheld the district court's dismissal of the grand jury indictment. Judge Taubman dissented stating that no statute or rule prohibits the action taken by the prosecution and the conclusion reached by the court of appeals was against the overwhelming weight of authority in state courts and federal courts. Noline, 894 P.2d at 7 (Taubman, J., dissenting). We agree with the reasoning expressed in the dissent.

II.

A.

Under article II, section 8 of the constitution, felony prosecutions originally were limited to indictments. ⁴ However, the General Assembly, pursuant to its powers vested under article II, section 23 of the constitution, created an alternate procedure. ⁵ The General Assembly has provided the district attorney with three different means to initiate a felony prosecution. The district attorney can: (1) file a felony complaint in the county court; (2) file an information in the district court; or (3) proceed by way of a return of an indictment from the grand jury. § 16-5-101(1)(a)-(c), 8A C.R.S. (1986).

Although historically the first means of prosecuting felonies, the grand jury system is seldom utilized in Colorado. As one commentator has noted:

The vast majority of prosecutions in Colorado are initiated by information. Only counties with a population of more than 100,000 have a regularly selected standing grand jury. Special grand juries may, of course, be selected for smaller jurisdictions upon proper motion, but that is a rare occurrence. There are generally only a handful of regularly sitting grand juries in Colorado, and the indictment is utilized in less than 1 percent of all felony cases filed in the state.

H. Jeffrey Bayless, Grand Jury Reform: The Colorado Experience, 67 A.B.A. J., May 1981, at 568, 572. Although this statistic is dated, little seems to have changed since 1981. See Peter L. Davis, Rodney King and the Decriminalization of Police Brutality in America: Direct and Judicial Access to the Grand Jury as Remedies for Victims of Police Brutality When the Prosecutor Declines to Prosecute, 53 Md. L.Rev. 271, 328-332 (1994) (analyzing and applauding Colorado's grand jury scheme but noting that the grand jury is underutilized and quoting the above passage). ⁶ The great preponderance of felony prosecutions are initiated in the county and district courts.

If the district attorney chooses to proceed by felony complaint filed in the county court, the governing...