People v. Smith, 25822

• Decision Date: 15 July 1974
• Docket Number: No. 25822,25822
• Citation: 524 P.2d 607,185 Colo. 369
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Ted Michael SMITH, Defendant-Appellant.
• Court: Colorado Supreme Court

Page 607

524 P.2d 607

185 Colo. 369

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Ted Michael SMITH, Defendant-Appellant.

No. 25822.

Supreme Court of Colorado, En Banc.

July 15, 1974.

Rehearing Denied Aug. 6, 1974.

John P. Moore, Atty. Gen., John E. Bush, Deputy Atty. Gen., E. Ronald Beeks, Asst. Atty. Gen., Denver, for plaintiff-appellee.

Ashen & Fogel, Marshall A. Fogel, William L. Keating, Robert L. Pitler, Denver, for defendant-appellant.

LEE, Justice.

Ted Michael Smith was convicted by a jury of vehicular homicide in violation of 1965 Perm.Supp., C.R.S.1963, 13--5--155. He seeks reversal of his conviction, challenging the sufficiency of the evidence, and he asserts additionally that the trial court erred prejudicially in several other respects. Particularly, he contends that the court improperly denied him discovery of an endorsed witness's statement. We reverse the judgment of conviction and remand the case for a new trial.

I.

The People's evidence established that appellant, a Denver police officer, while driving a police vehicle on routine patrol, at approximately 4 a.m. on December 25, 1971, struck and killed a pedestrian who was crossing the intersection of 34th and High Street. The autopsy performed on the deceased revealed that he was intoxicated, having a blood alcohol level of .330%.

The posted speed limit where the accident occurred was 30 miles per hour. The People's expert witness estimated the speed of the patrol car at approximately 71 miles per hour when appellant first applied his brakes to avoid striking the victim. Appellant explained he was in pursuit of a motorist. He did not, however, have his red light or siren activated during the chase. The evidence showed that the patrol vehicle skidded 68 feet prior to the point of impact and approximately 134 feet thereafter, coming to rest against a tree in the right-hand parkway of East 34th Avenue.

Appellant and his partner on patrol, Officer Michael Buckley, who was riding in the right front seat, were both injured as a result of the accident and taken to the Denver general hospital for treatment. Buckley was placed under sedation. Shortly thereafter, he was questioned about the accident by an agent of the Staff Inspection Bureau of the Denver police department. His statement was recorded. In connection with the bureau's continuing investigation of the accident, Buckley was again questioned on December 25, 1971, and this statement was also recorded. Officer Buckley was the only eyewitness to the accident other than appellant, and, although he was endorsed as a witness on behalf of the People, he was never called to testify.

Appellant testified in his own behalf. He explained that he and his partner were patroling District No. 2, which was recognized as a high-crime district. He saw a car turn east on to East 34th Avenue with its lights out. This raised a suspicion in his mind and he pursued the car, which was rapidly accelerating away. He did not turn on his red lights or siren purposely, so as not to alert the other car of his pursuit. He described the accident as follows:

'* * * I accelerated up East 34th Avenue as this party was accelerating away, and I saw the deceased, Mr. Police, standing around the north, just to the north of the center line. I slammed on the brakes when I seen him. I put the car into park and veered as far as I could to the right to get away from Mr. Police. As I did so, Mr. Police seemed to dart toward my car, and contact was made with the right-pardon me--the left front fender, just in front of the fender wall. At that time Mr. Police hit the windshield. The windshield was shattered. We went up over the curb and came to rest against a tree. My partner at that time was unconscious, * * *.'

The People concede that appellant's testimony, if believed, probably would require an acquittal. The jury, however, was free to accept or reject appellant's testimony. Maisel v. People, 166 Colo. 161, 442 P.2d 399. Viewing the evidence in the light most favorable to the People, a prima facie case was established which required submission of the cause to the jury. There were circumstances attending the accident from which the jury could conclude that appellant operated his vehicle with a willful or wanton disregard for human life. Cf. Steeves v. Simley, 144 Colo. 5, 354 P.2d 1011. Accordingly, we do not reverse the conviction on the grounds of insufficiency of the evidence.

II.

We agree with appellant's contention that the court improperly denied him discovery of Officer Buckley's first recorded statement. Under the circumstances of this case, denial of this discovery requires reversal, and a new trial.

Officer Buckley was the only other surviving eyewitness to the accident. While under sedation at the hospital, he gave a statement to agents of the Staff Inspection Bureau. According to representations of appellant's counsel, Buckley advised him that he could not recall the contents of his hospital statement because of his sedated condition at the time the statement was given. Appellant twice unsuccessfully sought discovery of this statement from the district attorney under Crim.P. 16(c). In denying his discovery motions, the trial court precluded appellant from making an informed decision as to whether to call Buckley to the stand. This, in our view, denied appellant a fair trial.

The circumstances attending appellant's requests for disclosure evinced a patern of noncooperation by the prosecution approaching prosecutorial misconduct. Appellant's first request for disclosure was in his pretrial motion for discovery and inspection. Therein he requested permission to inspect and copy 'all evidence which would be favorable to the defendant.' The district attorney responded in writing as follows:

'(2) The People of the State of Colorado in response to paragraph two of defendant's motion have no evidence which might be considered exculpatory nor any that would even be favorable, which would not be available to the defendant, should the same exist, by the exercise of due diligence on his part in reasonable efforts of investigation and preparation for trial.'

The district attorney's position, reiterated in the People's brief on appeal, was that the substance of the statement Buckley gave to the Staff Inspection Bureau while in the hospital could be obtained by interviewing Buckley. On July 27, 1972, prior to selecting the jury, counsel for appellant renewed his request for discovery, and represented that Buckley in fact could not remember the contents of his hospital statement. Counsel offered to have Buckley so testify to the court. The court summarily denied the request for discovery--this in spite of an offer of proof as to the materiality, relevancy and necessity of having the statement. Counsel explained that Buckley was the only other eyewitness to the accident. He noted that while Buckley had been listed as a witness for the prosecution, he also understood that the district attorney was undecided whether he would call Buckley as a witness. In view of this, he explained, he needed the statement to determine whether to call Buckley as a defense witness and to determine the scope of his interrogation in light of the statement. The decision to call or not to call Buckley as a defense witness hinged upon whether that statement contained material which might be helpful, or which might be harmful and used by the district attorney for impeachment purposes.

Counsel further pointed out that under Crim.P. 16(c), effective as of April 1, 1972, the trial court had discretion to order pretrial discovery of information relevant and material to the defense,...