People v. Small

• Court: Colorado Supreme Court
• Writing for the Court: ROVIRA; ERICKSON
• Citation: People v. Small, 631 P.2d 148 (Colo. 1981)
• Decision Date: 22 June 1981
• Docket Number: 79SA385,Nos. 79SA166,s. 79SA166
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Charles Raymond SMALL, Defendant-Appellant.

Page 148

631 P.2d 148

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Charles Raymond SMALL, Defendant-Appellant.

Nos. 79SA166, 79SA385.

Supreme Court of Colorado, En Banc.

June 22, 1981.

Rehearing Denied July 13, 1981.

J. D. MacFarlane, Atty. Gen., Richard F. Hennessey, Deputy Atty. Gen., Mary J. Mullarkey, Sol. Gen., Lynne Ford, Asst. Atty. Gen., Denver, for plaintiff-appellee.

J. Gregory Walta, Colorado State Public Defender, Norman R. Mueller, Deputy State Public Defender, Denver, for defendant-appellant.

ROVIRA, Justice.

The case is a consolidation of two separate appeals brought by the defendant, Charles Raymond Small, as a result of his conviction for first-degree murder in violation of section 18-3-102(1)(b), C.R.S.1973 (1978 Repl. Vol. 8) (the felony murder statute). In case number 79SA385, the defendant argues that he was denied his constitutional rights to due process and a speedy trial as a result of delay in bringing him to trial. See U.S.Const. Amend. VI and XIV; Colo.Const. Art. II, sec. 16 and 25. In case number 79SA166, he challenges certain rulings made by the trial court relating to the production of a defense investigator's report, the admission of evidence, and the rejection of a tendered jury instruction. ¹ We affirm.

The defendant's conviction arose from events which occurred on the evening of August 31, 1973, in Colorado Springs. An automobile driven by Freddie Lee Young stopped in the 1200 block of West Pikes Peak Avenue, and one passenger dragged the only other passenger, the victim, Kenneth Reinert, from the car and left him lying on the street. He had been shot through the right eye and was mortally wounded. His wallet was empty, and his pockets had been turned inside out.

Shortly afterward, the Young automobile was stopped by a Colorado Springs police officer who was investigating an unrelated traffic offense. The officer saw another occupant in the Young car, but this person fled when the vehicle was stopped. Young was questioned briefly and was released without a ticket.

After Young learned he had become a suspect in the homicide, he voluntarily talked to police in Colorado Springs on September 10, 1973, about the killing. He then implicated the defendant as being the other passenger in his car.

At the defendant's trial, which began on October 24, 1977, Young testified that the defendant shot the victim while committing a robbery. Young's testimony was corroborated by another witness, Michael Price, who said that the defendant admitted his role in the homicide to him on the night of the killing and over the course of the next few days while he was helping to fabricate an alibi.

Other facts of significance in this case will be discussed as they relate to the issues on appeal.

I. Case No. 79SA385

The defendant was first charged by indictment with the crimes of first-degree murder and aggravated robbery on September 12, 1973. On the day scheduled for trial, January 14, 1974, the defense was ready to proceed; but the prosecution moved successfully for a nolle prosequi order. At that time, Freddie Young was the sole, uncorroborated witness against the defendant. The prosecution stated its reasons for not proceeding as follows:

"The evidence which The People have to present at this time cannot sustain a conviction because of the credibility of the People's evidence.

"The Colorado Springs Police Department is continuing its investigation in this case.

"As the interests of justice and economy would best be served by a NOLLE PROSEQUI ORDER in this action at this time."

All charges against the defendant were dismissed without prejudice.

On April 23, 1974, after a jury trial, Freddie Young was convicted as an accessory to first-degree murder. His conviction was affirmed by this court. People v. Young, 192 Colo. 65, 555 P.2d 1160 (1976).

In 1975 the defendant's chief alibi witness, his half brother Ricky Lewis, was shot and killed.

In early February 1977, two witnesses were discovered who claimed to be able to corroborate Young's version of events. In proceedings before a grand jury held on February 15, 1977, one of these witnesses, Michael Price, testified that the defendant had specifically admitted to him his role in the Reinert killing. Price had been the defendant's friend and stated that he had previously lied to defense counsel and others as part of preparing the defendant's alibi defense for the first scheduled trial. The other grand jury witness testified that the defendant had admitted his role in an unspecified killing very similar to the one at issue. This witness was not called upon to testify at the subsequent trial.

On February 16, 1977, a second indictment was filed charging the defendant with felony murder and aggravated robbery. On April 1, 1977, the robbery charge was dismissed on the prosecution's motion, and the case was set for trial on May 9, 1977. On April 22, 1977, the defense counsel confessed failure to comply with the prosecution's request for discovery concerning alibi and theory of defense. Crim.P. 16(II)(c). The trial date was reset to June 27, 1977. The defendant successfully moved for a continuance on June 10, 1977; and trial was reset to August 22, 1977.

On August 12, 1977, the murder indictment was quashed in response to the defendant's motion alleging that the grand jury proceeding had violated his right to due process. The trial court found that, aside from the substantive evidence which would be admissible against the defendant at trial, the prosecution had presented unsubstantiated rumors to the grand jury about the defendant's general criminal activity and had failed to present known exculpatory evidence. It ruled that such a procedure violates fundamental fairness and dismissed the case without prejudice. ²

On August 19, 1977, an information was filed charging the defendant with felony murder; and a trial date was set for October 24, 1977. On September 22, 1977, the defendant first raised his claim that the information should be dismissed because of the prosecution's delay in bringing him to trial. At the defendant's request, the trial court postponed a hearing of this motion until after trial on the merits.

On October 24, 1977, the defendant's jury trial began; and he was convicted on October 29, 1977. On December 21, 1977, the trial court granted defendant leave to sever his speedy trial claim from other issues raised in his motions for new trial or acquittal; it denied these motions and sentenced him to life imprisonment.

On March 15, 1979, appellate counsel presented the defendant's constitutional speedy trial claim to the court by means of a Crim.P. 35(b) motion. ³ We here address the trial court's denial of this motion.

A.

The People argue that the trial court lacked jurisdiction to hear the defendant's 35(b) motion while the appeal of his conviction was still pending. This contention is premised on two claims: (1) that the appellate court has exclusive jurisdiction of the case once appeal is sought and (2) that the principle of the conservation of judicial resources militates against concurrent jurisdiction in both trial and appellate courts.

The trial court allowed the defendant to raise the claim at a post-conviction hearing that his conviction had been obtained in violation of constitutional speedy trial and due process rights. See Crim.P. 35(b)(1)(I). The issue had originally been raised before trial, but the court adopted a procedure which permitted it to consider the speedy trial claim in relation to the relevant facts which were developed at trial.

"The essence of a defendant's Sixth Amendment claim in the usual case is that the passage of time has frustrated his ability to establish his innocence of the crime charged. Normally, it is only after trial that that claim may fairly be assessed." (Emphasis added.) United States v. MacDonald, 435 U.S. 850, 860, 98 S.Ct. 1547, 1552, 56 L.Ed.2d 18 (1978).

The court did not address the speedy trial issue as part of the defendant's motion for a new trial because defense counsel wished to testify about it. The court allowed the defendant's attorneys to withdraw from the case prior to the Crim.P. 35(b) hearing so that they would not be forced to be witnesses and advocates in the same proceeding. The prosecution made no objection to this decision, and there is no indication from the record that the 35(b) procedure was adopted to substitute for normal appellate practice.

Under the circumstances of this case, the trial court's assumption of jurisdiction was within its discretion. Only by such means could alleged errors of constitutional magnitude be decided which would not otherwise have been raised and ruled upon.

B.

This appeal raises no claim of a denial of the defendant's statutory right to a speedy trial under section 18-1-405, C.R.S.1973 (1978 Repl. Vol. 8), or of a right to dismissal of his case by court rule, Crim.P. 48(b). The defendant argues here that his constitutional speedy trial rights have been violated. At the heart of this claim is the fact that his half brother, a potential witness in support of his alleged alibi, died in the interval between the dismissal of charges for first-degree murder and aggravated robbery on January 14, 1974, and the time he was again indicted on identical charges on February 16, 1977. Whatever impairment his defense may have suffered must be considered in light of our overall comparison of his conduct and that of the prosecution. See People v. Jamerson, 198 Colo. 92, 596 P.2d 764 (1979).

As we have repeatedly emphasized, a defendant's speedy trial rights under U.S.Const. Amend. VI and Colo.Const. Art. II, sec. 16, are to be measured by an ad hoc balancing of four factors: the length of the delay, the reasons for the delay, the defendant's assertion of his right to a speedy trial, and the prejudice to the defendant. Gelfand v. People, 196 Colo. 487, 586 P.2d 1331 (1978); People v. Buggs, 186 Colo. 13, 525 P.2d...