People v. Walker

• Decision Date: 17 February 2011
• Docket Number: No. 10CA1236.,10CA1236.
• Parties: The PEOPLE of the State of Colorado, Plaintiff–Appellant,v.Quincy Yarnell WALKER, Defendant–Appellee.
• Court: Colorado Court of Appeals

252 P.3d 551

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

v.Quincy Yarnell WALKER, Defendant–Appellee.

No. 10CA1236.

Colorado Court of Appeals, Div. II.

Feb. 17, 2011.

Donald S. Quick, District Attorney, Michael J. Milne, Senior Deputy District Attorney, Brighton, Colorado, for Plaintiff–Appellant.Douglas K. Wilson, Colorado State Public Defender, Jessica Jones, Deputy State Public Defender, Denver, Colorado, for Defendant–Appellee.Opinion by Judge LOEB.

The prosecution appeals the trial court's order dismissing domestic violence charges which it refiled against defendant, Quincy Yarnell Walker, after the court dismissed the original charges, without prejudice, due to the victim's failure to appear for trial. Because we conclude the court erred in its determination that the dismissal and refiling of charges violated defendant's statutory right to a speedy trial, we reverse the order of dismissal and remand for reinstatement of the charges.

The speedy trial statute entitles a defendant to a dismissal of the charges if the case is not brought to trial within six months of the date a not guilty plea enters. § 18–1–405(1), C.R.S.2010; People v. Platt, 170 P.3d 802, 806 (Colo.App.2007), aff'd on other grounds, 201 P.3d 545 (Colo.2009).

However, “[w]hen charges in a complaint are properly dismissed within the speedy trial period without prejudice, they become a nullity. If and when the defendant is arraigned under a subsequent information, the speedy trial period begins anew, even if the charges are identical.” Huang v. County Court, 98 P.3d 924, 928 (Colo.App.2004). The rationale for this rule is that where “the charges of the original information are dismissed without prejudice by the trial court within the speedy trial period, such dismissal is sufficient to protect a defendant's rights under [section] 18–1–405.” Meehan v. County Court, 762 P.2d 725, 726 (Colo.App.1988).

There is an exception to the rule that the refiling of previously dismissed charges results in a resetting of the speedy trial clock. But it is a narrow one, and it applies only where a defendant “affirmatively establish [es]” that the prosecution “indiscriminately dismiss[ed] and refile[d] charges in order to avoid” the statutory speedy trial mandate. Id.

Where, as here, a trial court dismisses charges based on its application of a speedy trial statute to undisputed facts, our review is de novo. See People v. Carr, 205 P.3d 471, 473 (Colo.App.2008).

I. Procedural History

The prosecution charged defendant with first degree assault, second degree assault, and violation of a restraining order. The supporting affidavit alleged that he had repeatedly struck and kicked the victim, who was then pregnant with his child, in the face. According to the affidavit, the victim suffered two black eyes and a broken nose.

On October 6, 2008, the six-month statutory speedy trial period began to run when defendant entered a not guilty plea. The court scheduled a trial for March 9, 2009.

In January, the court granted the prosecution's motion to continue the trial due to the unavailability of an expert witness. The court rescheduled the trial for March 30, 2009.

At a motions hearing in February, the prosecutor informed the court that the victim had been served with a subpoena (to appear for the March 30 trial) while she was at a hospital to deliver her baby. The court directed the prosecutor to have her served with a second subpoena to appear for a pretrial conference on March 18, 2009.

On March 4, 2009, the prosecutor informed the court that, although the victim remained under subpoena for the March 30 trial and had told him that she intended to appear, she had also said she would not appear for the pretrial conference on March 18. The prosecutor explained that efforts were under way to locate the victim and have her served with a subpoena for the pretrial conference.

Those efforts were not successful, and the victim did not appear for the pretrial conference on March 18, 2009. Defense counsel informed the court that her investigator had spoken with the victim on the phone, and that the victim had stated she would not appear for the pretrial conference or the trial. In response, the prosecutor explained that defendant had a “history ... [of] cases ... be[ing] dismissed because people don't show up.” The prosecutor insisted that he was “not willing to just throw up [his] hands and say that because she doesn't want this to go forward, that [he would be] willing to drop this.” In addition, he assured the court that, if the victim failed to appear for trial and the court issued a warrant, he would go to great lengths to have her arrested: “[W]e can go find her.... It will take us a lot of work to do it, but we will do it.” The court agreed to leave the trial set as scheduled.

The victim did not appear for trial on March 30, 2009, and the prosecutor told the court that she had not responded to his voice message offering to arrange transportation to the courthouse. The prosecutor asked the court to continue the trial, release defendant from custody, and issue an arrest warrant for the victim so that he could then have the “Fugitive Task Force” search for her, including at “the shelter that she goes to.” Defense counsel objected to the requested continuance, noting that the speedy trial period would expire on April 6.

The trial court refused to grant a continuance and sua sponte dismissed the charges, stating there was “no reason to believe” the victim would appear in the future. However, the court made clear that the dismissal was “without prejudice.” Defendant did not object to the dismissal without prejudice.

On November 10, 2009, the prosecutor refiled the charges (which were identical to the original charges, except that the lesser included offense of second degree assault was not charged separately). In an accompanying notice, he informed the court that the victim had recently been “picked up on the warrant” which the court had issued (at the prosecution's request) after she had failed to appear on March 30. The notice further stated that the return date on the warrant for a contempt hearing was November 20, 2009, and that the victim “has indicated that she is now available as a witness in this case and will be at any trial that is scheduled.”

On November 12, 2009, defendant was arrested on the refiled charges. The victim appeared before the court on November 20, and the court granted the prosecution's request to continue the hearing on the contempt citation.

On January 22, 2010, the court conducted a preliminary hearing and found probable cause to proceed.

On February 8, 2010, defendant entered a plea of not guilty and informed the court that he would be moving to dismiss the refiled charges based on an alleged violation of his right to a speedy trial.

Defendant filed a written motion to dismiss. Although the motion referenced the speedy trial provisions in the federal and state constitutions, the actual claim was based exclusively on the statutory right to a speedy trial. See People v. McMurtry, 122 P.3d 237, 241 (Colo.2005) (a defendant's statutory right to speedy trial is separate from the constitutional speedy trial right which the statute effectuates, and a defendant “may only raise the improper denial of his constitutional right to a speedy trial on appeal if he raised it first in the trial court”).

At a hearing on the motion, the court found that there was no basis to conclude the prosecutor had acted in bad faith. Although the court acknowledged that the case had been dismissed over the prosecutor's objection, it concluded that, on March 30, 2009, it would have been “[v]irtually impossible” to reset the trial before the original speedy trial period expired on April 6, 2009. Significantly, the judge who ruled on the motion to dismiss the refiled charges was not the same judge who had dismissed the original charges, and the second judge conceded his finding was not based on personal knowledge of actual docket conditions at the time of the original dismissal but, rather, on the fact that he had served on the bench for “awhile and see[n] how it works.” In concluding that dismissal of the refiled charges was appropriate, the court determined that the speedy trial period applicable to the original charges would not have been subject to extension pursuant to any of the statutory exceptions because (1) the prosecution had conceded it would not have been able to show that defendant had intimidated the victim or otherwise caused her absence; and (2) the prosecution had not done “all that it might have” to secure the victim's presence. When the prosecutor asked for clarification of the latter conclusion, the court stated it was not finding that there “was, in fact, lack of diligence,” and it agreed to issue a written order explaining why it had concluded that the victim's failure to appear was attributable to the prosecution's “lack of resources.”

In its written order dismissing the refiled charges, the court restated its finding that, at the time the original charges were dismissed, the court could not have rescheduled the trial for a date prior to expiration of the speedy trial period. In connection with this finding, the court observed that it had taken the prosecution “more than six months” to apprehend the victim after she failed to appear for trial (however, the...