People v. Nord

• Decision Date: 09 April 1990
• Docket Number: No. 88SC496,88SC496
• Parties: The PEOPLE of the State of Colorado, Petitioner, v. Ann Marie NORD and Albert Zook, Respondents.
• Court: Colorado Supreme Court

Page 311

790 P.2d 311

The PEOPLE of the State of Colorado, Petitioner, v. Ann Marie NORD and Albert Zook, Respondents.

No. 88SC496.

Supreme Court of Colorado,

En Banc.

April 9, 1990.

Rehearing Denied April 30, 1990.

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., and Robert M. Russel, Asst. Atty. Gen., Denver, for petitioner.

David F. Vela, State Public Defender, and Jaydee K. Bachman, Deputy State Public Defender, Denver, for respondents.

Chief Justice QUINN delivered the Opinion of the Court.

We granted certiorari to review the decision of the court of appeals in People v. Nord and Zook, 767 P.2d 750 (Colo.App.1988). In reversing the defendants' convictions for criminal mischief and remanding the case for a new trial, the court of appeals held that the trial court erred in denying the defendants' request for a transcript of the preliminary hearing at state expense and that the trial court's error required a new trial without regard to any consideration of prejudice. Although we agree with the court of appeals that the trial court erred in denying the defendants' request for a free transcript, we conclude that the error was harmless beyond a reasonable doubt. We therefore reverse the judgment of the court of appeals and remand the case to that court for reinstatement of the judgments of conviction.

I.

The defendants, Ann Marie Nord and Albert Zook, were charged in the County Court of Jefferson County with the class 4 felony of criminal mischief, § 18-4-501, 8B C.R.S. (1986), for knowingly causing damage to the property of Martin Marietta Company in the amount of three hundred dollars or more on September 27, 1985. ¹ The charge was based on the defendants' act of splashing human blood on the interior windows and walls of a laboratory building at the Martin Marietta complex in Jefferson County, and thereby causing damage to carpeting near the windows, as part of a demonstration in protest of Martin Marietta's involvement in the production of MX missiles.

The defendants waived their right to counsel and elected to represent themselves at a preliminary hearing conducted before the county court on October 25, 1985. The prosecution called two witnesses at the preliminary hearing. Kenneth Ives, a spacecraft technician at Martin Marietta testified that at approximately 8:15 a.m. on September 27, 1985, he saw the defendants spilling what appeared to be human blood on the windows inside the space-support building at the Martin Marietta complex. The prosecution's other witness was Paul Magor, a Jefferson County Deputy Sheriff. Magor testified that at approximately 8:22 a.m. he was called to Martin Marietta's space-support building, that he was directed to the defendants who were in the hallway of a building which had blood on its windows, that the defendants had two bags or briefcases containing carpentry tools, plastic cups, and various documents protesting the work of the Martin Marietta company, and that he later determined that Martin Marietta sustained damage in the amount of $330. At the conclusion of the preliminary hearing, the court ordered the defendants bound over to the district court for trial and scheduled an arraignment in the district court on November 12, 1985.

At the arraignment the defendants, after receiving a thorough advisement by the court of their right to counsel and the risks of self-representation, reaffirmed their decision to represent themselves. The defendants filed a written request, supported by affidavits of their financial condition, for a free transcript of the preliminary hearing in order to prepare for trial. The affidavit of Ann Marie Nord stated that she was a Catholic nun and lived and worked with other nuns in providing emergency care for women and children, that she worked part time at odd jobs such as painting and housecleaning and contributed her earnings to a communal account to pay her share of the religious community's expenses, and that she received approximately $20.00 per month for personal spending. The affidavit of Albert Allen Zook stated that he was engaged as a volunteer in various peace projects and worked part time as a house painter and in a soup kitchen, but that his living expenses exceeded his income. The district court denied the defendants' request for a free transcript of the preliminary hearing, ruling that the defendants' affidavits were too conclusory and that their financial inability to pay for a transcript was "due to their own decision to engage in [volunteer] pursuits ..." The defendants at the arraignment entered not guilty pleas, and the case was set for trial on March 4, 1986.

On January 24, 1986, the defendants filed a motion for reconsideration of their request for a free transcript of the preliminary hearing and supported their motion with detailed financial affidavits. Nord's affidavit indicated that her gross total income on her last federal tax return was $1600, that her monthly income was $200, and that her monthly expenses amounted to $215. Zook's affidavit stated that his total income on his last federal tax return was $500, that his gross monthly income was $100, and that his total monthly expenses and debts amounted to $985. ² The trial court denied the motion for reconsideration, ruling again that the defendants' indigency was voluntary and also that they lacked the expertise to make effective use of the transcript in their defense.

The defendants filed a pretrial notice of their intent to raise at trial the affirmative defense of choice of evils, § 18-1-702, 8B C.R.S. (1986), claiming that the production of MX missiles created an imminent public danger of such gravity that the urgency of avoiding the injury posed by this danger outweighed the desirability of avoiding any danger caused to Martin Marietta's property. The trial court ruled that the facts and circumstances underlying this claimed defense were insufficient as a matter of law to constitute a justification for the act of criminal mischief charged against the defendants . ³

Prior to the scheduled trial the prosecution provided the defendants with the statements of all prosecutorial witnesses and reports received from Martin Marietta concerning the incident in question. The jury trial commenced on the scheduled date of March 4, 1986. The prosecution in its case-in-chief elicited testimony from several Martin Marietta employees who recounted their observations of the defendants on September 27, 1985, at the space-support building at the Martin Marietta complex.

The defendants, according to these witnesses, went to the hallway of the second floor of the building, where employees were at work developing software for the MX missile, splashed blood on the walls and windows, distributed a document to employees that purported to be an "indictment" against Martin Marietta for its production of MX missiles, and waited for security guards or the police to come to the scene. Some of the blood dripped onto drapes next to the windows and onto the hallway carpeting below the windows. The prosecution presented testimony from janitorial staff employees establishing that the blood stained the carpeting and, because the stains could not be removed, the carpeting had to be replaced. The prosecution also presented documentary evidence establishing that the cost of replacing the carpeting was $332.44. Kenneth Ives, the spacecraft technician who testified at the preliminary hearing, did not testify at trial. The prosecution, however, did present testimony from Deputy Sheriff Phillip Magor, the other prosecution witness at the preliminary hearing. Magor testified at trial essentially to the same matters that he testified to at the preliminary hearing.

Both defendants testified at trial. They admitted that they splashed human blood on the windows of the Martin Marietta building, that the blood spilled onto the surrounding area and did some damage to the carpeting, and that they had in their possession several tools and the document described by Deputy Sheriff Magor. They basically claimed that they did not "knowingly" cause any property damage because they were not "practically certain" that any such damage would occur, and that the damage itself did not amount to $300 or more. With respect to the issue of damage, the defendants called a carpet cleaner who expressed the opinion that the cost of removing the blood stains from the carpeting would be approximately $40.

The trial court instructed the jury on the crime of class 4 felony criminal mischief (damage of $300 or more) and the lesser offenses of misdemeanor criminal mischief (damage of $50 to $500) and petty offense criminal mischief (damage of less than $50). See § 18-4-501, 8B C.R.S. (1986). The jury found the defendants guilty of class 4 felony criminal mischief. The trial court granted the defendants' applications for probation and sentenced the defendants to a term of sixty days in the county jail as a condition of probation.

The defendants appealed their convictions. The court of appeals reversed their convictions and remanded the case for a new trial. The court initially ruled that, because the defendants came within the indigency guidelines with respect to their eligibility for a court-appointed attorney, ⁴ the trial court erred "in denying [them] the status of indigents merely because it concluded that their indigency was voluntary." 767 P.2d at 751. The court of appeals then went on to hold that, because of their indigency, the defendants were entitled to a free transcript of the preliminary hearing "upon a timely request without particularization of need" and that "[c]ourts will not indulge in a post facto review of whether the failure to provide a transcript of a preliminary hearing prejudiced the defendant." Id. at 752. ⁵ We granted the People's petition for certiorari to consider whether the court of appeals correctly determined that the defendants were...