People v. Rickard

• Decision Date: 12 September 1988
• Docket Number: No. 86SA386,86SA386
• Citation: 761 P.2d 188
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Steven D. RICKARD, Defendant-Appellee.
• Court: Colorado Supreme Court

Page 188

761 P.2d 188

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Steven D. RICKARD, Defendant-Appellee.

No. 86SA386.

Supreme Court of Colorado En Banc.

Sept. 12, 1988.

Robert A. Chapell, Chief Deputy Dist. Atty., John A. Hower, Deputy Dist. Atty., Littleton, for plaintiff-appellant.

Bruno, Bruno & Colin, P.C., Louis B. Bruno, James C. Coyle, Michele M. Lawonn, Lakewood, for defendant-appellee.

ERICKSON, Justice.

The prosecution appeals the dismissal of a grand jury indictment. On April 24, 1986, a grand jury returned a four-count indictment against respondent Steven D. Rickard. Rickard moved to dismiss the indictment claiming that the secrecy of the grand jury proceedings required by Crim.P. 6.2 was breached by the district attorney and grand jury investigators. The district court granted the motion and dismissed the indictment, finding that the prosecution and investigators violated Crim.P. 6.2 and the court's grand jury instructions by disclosing information obtained during grand jury proceedings. We reverse and remand with directions.

I.

Rickard was employed by the Denver Police Department. He also owned and operated two companies, Police Security Service (Security Service) and Metro Denver Auto Service (Metro Denver). Security Service scheduled off-duty police officers to perform security services at two shopping centers owned by Trammell Crow Company (Trammell). Based on billings prepared by Rickard, Trammell paid Security Services with a single check for services rendered by several off-duty officers. Security Service's receipt of one check for work performed by several different officers violated section 114 of the Denver Police Department Operations Manual, which required Trammell to pay officers individually. Rickard attempted to conceal his evasion of section 114 by signing the name Brook Baldridge on paychecks given to individual officers for their off-duty work. During 1985, Rickard received $26,293.79 in net income from Trammell based on security services he allegedly rendered. However, the indictment states that at $13.50 per hour it was physically impossible for Rickard to receive more than $17,840.25.

Metro Denver operated a tow truck at one of Trammell's properties. Rickard informed the Ethics Board of the Denver Police Department that the truck would be used only to provide jump starts and to open locked vehicles for patrons and Trammell employees. The Board granted Rickard and his company permission to own and operate the truck for the specified purposes, but expressly prohibited Metro Denver from providing towing services. Metro Denver nevertheless towed and impounded several illegally parked vehicles owned by patrons of one of Trammell's shopping centers. The automobiles were returned to their owners after fees ranging from $10 to $50 were paid to Metro Denver. Metro Denver's conduct violated towing ordinances, 54-419, 55-176, and 55-186(a), and Denver police towing procedures.

Based on the overbilling of Trammell by $8,453.54 and Rickard's improper operation of Metro Denver, a four-count indictment was returned April 24, 1986. Rickard was charged in two counts for violating section 18-4-401, 8 C.R.S. (1978 & 1985 Supp.) (theft), and in two counts for violations of section 18-8-104, 8 C.R.S. (1978 & 1985 Supp.) (obstructing a police officer). Rickard moved to dismiss the indictment asserting that, prior to the grand jury's deliberations, the secrecy of the grand jury's proceedings was breached by the prosecution on at least two occasions. The first breach involved Officer John C. Johnson, who testified that on March 28, 1986, he was interrogated by grand jury investigators Captain Steve Jeffries and Sergeant Daniel Yount. He stated that the investigators showed him a grand jury exhibit, a check for $781, and told him that other witnesses testified differently than he did about the check. The second incident involved a conversation between the defendant and Yvonne Azar (Azar), a deputy district attorney. Azar revealed what had been told to her in confidence by another district attorney; specifically, that a grand juror asked Johnson whether Johnson's memory was impaired by mind-altering drugs.

The district court dismissed the indictment, concluding that the prosecution violated Crim.P. 6.2(a) and the court's instructions to the grand jury ¹ by disclosing information from the grand jury's proceedings to Johnson, a grand jury witness, and Rickard. In dismissing the indictment, the court made no factual findings as to whether Rickard was prejudiced by the disclosures. ²

II.

The prosecution asserts that the court abused its discretion in dismissing the indictment based on the breaches of secrecy. The prosecution concedes that the disclosure of evidence presented to the grand jury by Azar to Rickard was a violation of Crim.P. 6.2(a), but contends that there were no other breaches of grand jury secrecy. We agree that the only breach of secrecy occurred when Azar disclosed grand jury testimony to Rickard.

A.

Rule 6.2(a) of the Colorado Rules of Criminal Procedure provides:

All persons associated with a grand jury and its investigations or functions should at all times be aware that a grand jury is an investigative body, the proceedings of which shall be kept secret. Witnesses or persons under investigation should be dealt with privately to insure fairness. The oath of secrecy shall continue until such time as an indictment is made public, if an indictment is returned, or until a grand jury report is issued dealing with the investigation. Nothing in this rule shall prevent a disclosure of the general purpose of the grand jury's investigation by the prosecutor.

The rule embodies the long-established policy that grand jury proceedings should be maintained in secrecy. See United States v. Johnson, 319 U.S. 503, 513, 63 S.Ct. 1233, 1238, 87 L.Ed. 1546 (1943) (grand jury secrecy is "indispensable"). "[T]he proper functioning of our grand jury system depends upon the secrecy of grand jury proceedings." Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 218, 99 S.Ct. 1667, 1672, 60 L.Ed.2d 156 (1979). In Granbery v. District Court, 187 Colo. 316, 531 P.2d 390 (1975), we tempered the application of the secrecy doctrine by stating that "[s]ecrecy for secrecy's sake should no longer be the rule in Colorado. Rather, the maintenance of the wall of secrecy around grand jury testimony should be grounded upon sound reason." 187 Colo. at 320, 531 P.2d at 393 (quoting Parlapiano v. District Court, 176 Colo. 521, 527, 491 P.2d 965, 968 (1971)). "When disclosure is permitted it must be done discreetly and limitedly, and only when a compelling need outweighs the countervailing policy of secrecy." Id., 187 Colo. at 320, 531 P.2d at 392. ³ Grand jury secrecy is intended only to prevent disclosure of what transpires or will transpire before the grand jury. See Granbery, 187 Colo. at 322, 531 P.2d at 393.

B.

Prior to his testifying before the grand jury, Johnson was interrogated by grand jury investigators, who were members of the Denver Police Department's Internal Affairs Bureau. After testifying before the grand jury, Johnson was interrogated by grand jury investigators Jeffries and Yount. The investigators asked Johnson about a personal check which Rickard issued to him in the amount of $781.20. The cancelled check was later produced for the grand jury by Rickard. The check allegedly established that Johnson was paid by Rickard for services rendered to Trammell in June, 1985. Johnson, however, testified before the grand jury that he had not worked for Trammell during May and June of 1985. During the interrogation, the investigators asked Johnson about the check and parts of his grand jury testimony. They did not tell him that the check was a grand jury exhibit. He was informed that at least two other grand jury witnesses had testified differently than he had. The investigators did not disclose to Johnson the identity of the witnesses or the content of the witnesses' testimony. ⁴ They warned Johnson that a perjury conviction under sections 18-8-501 to -509, 8B C.R.S. (1986), required that a defendant's testimony be contradicted by the testimony of only two witnesses. They told him that he might lose his job and be convicted of perjury if he did not change his testimony before the grand jury reconvened. Johnson never changed his grand jury testimony and was not charged with perjury.

In view of the reasons for grand jury secrecy, we conclude that the conduct of grand jury investigators violated neither Crim.P. 6.2(a) nor the grand jury instructions. In questioning Johnson, the investigators disclosed only parts of Johnson's own testimony; they avoided revealing any other specific information about the grand jury proceedings. Additionally, they gave Johnson an opportunity to modify his testimony to avoid being charged with perjury.

The purpose of a grand jury investigation is to discover facts that will enable the grand jury to determine whether formal charges should be filed. See People v. Maestas, 199 Colo. 143, 146-47, 606 P.2d 849, 851-52 (1980). In questioning Johnson, the investigator endeavored to insure that only reliable evidence was before the grand jury and that the charges against Rickard were supported by probable cause. Id. (purpose of grand jury is to investigate possible offenses and to act as an independent barrier protecting the innocent from prosecution); Gher v. District Court, 183 Colo. 316, 516 P.2d 643 (1973) (grand jury acts not only as accusatory body but also as investigative body). Under the facts, the conduct of the investigators did not breach the secrecy of the grand jury.

C.

David W. Hackenbach, the chief deputy district attorney in the Denver District Attorney's office, told Azar that a member of the grand jury had asked if Johnson had taken "mind-altering drugs" that caused him to lose his memory. Azar was listed as a potential witness...