People v. Senette

• Decision Date: 26 July 2018
• Docket Number: Court of Appeals No. 16CA1963
• Parties: The PEOPLE of the State of Colorado, Plaintiff–Appellant, v. Floyd Joseph SENETTE, Defendant–Appellee.
• Court: Colorado Court of Appeals

436 P.3d 561

The PEOPLE of the State of Colorado, Plaintiff–Appellant,

v.Floyd Joseph SENETTE, Defendant–Appellee.

Court of Appeals No. 16CA1963

Colorado Court of Appeals, Division II.

Announced July 26, 2018

Rehearing Denied August 23, 2018

Daniel H. May, District Attorney, Jennifer Darby, Deputy District Attorney, Tanya Karimi, Deputy District Attorney, Colorado Springs, Colorado, for Plaintiff-Appellant.

Antony Noble, Alternate Defense Counsel, Matthew Fredrickson, Alternate Defense Counsel, Lakewood, Colorado, for Defendant-Appellee.

Opinion by JUDGE WELLING

¶ 1 When the victim, who was under subpoena, failed to appear at trial, the trial court denied the prosecution’s request for a continuance and dismissed the charges against the defendant, Floyd Joseph Senette. The prosecution appeals the trial court’s dismissal of charges. Because we conclude that the trial court abused its discretion in denying the request for a continuance and the trial court’s dismissal was the consequence of that error, we reverse and remand the case for further proceedings.

I. Background

¶ 2 The prosecution charged Senette with aggravated robbery and menacing, crimes he is alleged to have perpetrated against a single victim: M.T. Senette pleaded not guilty on April 27, 2016, and trial was set for October 11, 2016, sixteen days before the end of the six month statutory speedy trial period.

¶ 3 At a trial readiness conference four days before trial, the prosecutor indicated that M.T. had not been in contact with the prosecutor’s office in quite some time even though she had been personally served with a subpoena to attend trial. The prosecutor said that if M.T. did not appear at trial, she would request that the court issue a bench warrant for M.T.’s arrest and that the trial be continued.

¶ 4 As expected, M.T. did not appear on the morning of trial. The prosecutor requested a bench warrant and asked that the case be continued for one week, still within the six-month statutory speedy trial period. The prosecutor indicated to the court that the People could not prove their case without M.T.’s testimony. The court denied the request for a continuance because the prosecutor provided no indication that M.T. intended on cooperating. Then, at Senette’s request, the court dismissed the case.

II. Jurisdiction

¶ 5 As a threshold matter, we address our jurisdiction to consider this appeal. Allison v. Engel , 2017 COA 43, ¶ 22, 395 P.3d 1217 (court of appeals has duty to address its jurisdiction even if not raised by the parties).

¶ 6 Prosecution appeals are permitted in Colorado by section 16-12-102, C.R.S. 2017. See People v. George , 2017 COA 75, ¶ 23, ––– P.3d ––––. That statute provides that any order of a court that "dismisses one or more counts of a charging document prior to trial ... [constitutes] a final order that shall be immediately appealable." § 16-12-102(1). Here, the trial court dismissed the charges against Senette prior to trial. Therefore, the statute vests us with jurisdiction to consider the People’s appeal arising from that dismissal.

III. Analysis

¶ 7 The People argue that the trial court erred by denying its motion for a continuance and dismissing the case. We agree with both contentions.

A. Continuance

¶ 8 We review trial court’s ruling on a motion to continue for an abuse of discretion. People v. Ahuero , 2017 CO 90, ¶ 11, 403 P.3d 171. A trial court abuses its discretion if its ruling is manifestly arbitrary, unreasonable, or unfair, or is based on an erroneous understanding or application of the law. People v. McFee , 2016 COA 97, ¶ 17, 412 P.3d 848.

¶ 9 "In determining whether a continuance should be granted, the trial court must consider the peculiar circumstances of each case and balance the equities on both sides." People v. Fleming , 900 P.2d 19, 23 (Colo. 1995). When the continuance is sought to locate a missing witness, the court may consider whether the movant exercised due diligence to secure the witness’s attendance. Peoplev. Crow , 789 P.2d 1104, 1106 (Colo. 1990). Other factors relevant to the trial court’s inquiry include the prejudice the movant would suffer from the denial of a request for a continuance, whether that prejudice would be cured by the continuance, and the prejudice to the nonmoving party if the continuance is granted. People in Interest of D.J.P. , 785 P.2d 129, 132 (Colo. 1990).

1. Due Diligence

¶ 10 A prosecutor demonstrates diligence by using "available legal mechanisms" to secure a witness’s attendance at trial. People v. Wolfe , 9 P.3d 1137, 1142 (Colo. App. 1999). In this case, the prosecutor and the prosecution’s investigators knew where M.T. lived and worked; had been in contact with M.T. by phone and text message throughout the case, including on the morning of trial; and had personally served her with a subpoena to attend trial. These facts show that the prosecutor was diligent in procuring M.T.’s attendance at trial. See People v. Mann , 646 P.2d 352, 357 (Colo. 1982) ("[U]nder some circumstances, failure of a court to grant a continuance when a witness who has been subpoenaed fails to appear requires reversal."). But the record does not show that the trial court accorded weight to these facts when ruling on the prosecutor’s motion to continue. Crow , 789 P.2d at 1106 (a court must evaluate all of the circumstances surrounding the requested continuance). It was arbitrary for the trial court to deny the requested continuance without recognizing the prosecutor’s diligence in attempting to procure M.T.’s attendance at trial.

2. Effectiveness of the Continuance

¶ 11 A court may consider the effect a continuance will have on procuring a witness’s attendance. Arellano v. People , 174 Colo. 456, 460, 484 P.2d 801, 803 (1971) (no abuse of discretion when trial court denied continuance because there were "reasonable grounds" to conclude that witnesses could be found); People v. Mandez , 997 P.2d 1254, 1266 (Colo. App. 1999) (court did not abuse its discretion by denying a continuance when it was uncertain whether a missing witness could be located). Here, the trial court placed the most emphasis on the fact that a continuance would do little to procure M.T.’s attendance at trial. But the trial court made this determination without considering whether a bench warrant would increase the likelihood that M.T. would appear in court to testify.

¶ 12 When a subpoenaed witness fails to appear at trial, the court, at the request of the subpoenaing party, "shall issue a bench warrant directing that any peace officer apprehend the person and produce the person in court." Crim. P. 17(h)(2)(A). The trial court did not grant a bench warrant despite the prosecutor’s request.¹ More importantly, the court concluded that a continuance would do little to procure M.T.’s attendance at trial without placing any weight on the fact that an active bench warrant during the period of any continuance would help compel M.T.’s attendance and make it far more likely she would appear at the rescheduled trial. The prosecutor could not obtain a bench warrant until the morning of trial. See Crim. P. 17(h)(2)(A). So, even though the prosecutor expressed a suspicion during the pretrial conference that M.T. would not appear at trial, a bench warrant did not become a legal mechanism available to her until M.T. failed to appear the morning of trial.

¶ 13 In addition, this was not a situation where a bench warrant would be of little value. See, e.g. , Mandez , 997 P.2d at 1266 (upholding the denial of a continuance when court had reason to believe that missing witness was out of state and a bench warrant would be ineffective in securing the witness’s attendance). The prosecutor’s investigator was on the phone with M.T. the morning of trial. The prosecutor knew where M.T. lived and worked. There is nothing in the record indicating that the trial court considered these facts in reaching its conclusion regarding the futility of a continuance. To the contrary, under these circumstances, it is reasonable to think the bench warrant would have increased the likelihood that M.T. would appear at trial.

¶ 14 Moreover, the trial court’s conclusion that a bench warrant would be of little help was based on facts that lack record support. After the prosecutor requested a bench warrant, she relayed to the court a text message from her investigator. That text message stated: "Just got off the phone with [M.T.]. She’s waffling. I told her you were going to ask for a warrant if she didn’t show. I told her to call me back if she needed a ride. I’ll keep you posted." After some back and forth discussion with both counsel, the trial court stated that it was going to take a ten minute recess and if M.T. had not arrived, the charges would be dismissed because the trial court had not received "any indication from the People that [M.T.] intends on cooperating." But neither the text message, nor any other communication that the prosecutor received from M.T., supports the conclusion that M.T. would continue to refuse to cooperate even if there were a warrant out for her arrest. In short, the trial court’s conclusion is based on conjecture and does not address the possibility that the warrant might change M.T.’s mind or be effective in compelling her appearance.

¶ 15 Crim. P. 17(h)(2)(A) dictates that a party’s remedy when a subpoenaed witness fails to appear is the issuance of a bench warrant, but the trial court foreclosed that remedy by ruling on the continuance without first issuing the bench warrant. The trial court, therefore, misapplied the law by deciding that a continuance would be of little help without considering the effect of a bench warrant.

3. Prejudice

¶ 16 In denying the motion, the trial court concluded that Senette would be prejudiced but gave no consideration to the fact that the prosecution would be unable to prove its case without M.T., whose attendance the prosecution could compel with the issuance of a bench warrant. This was error. D.J.P. , 785...