People v. Weller

• Decision Date: 09 April 1984
• Docket Number: No. 82SA413,82SA413
• Citation: 679 P.2d 1077
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. David L. WELLER, Defendant-Appellant.
• Court: Colorado Supreme Court

Page 1077

679 P.2d 1077

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. David L. WELLER, Defendant-Appellant.

No. 82SA413.

Supreme Court of Colorado,

En Banc.

April 9, 1984.

Duane Woodard, Atty. Gen., Norman S. Early, Jr., Dist. Atty., Second Judicial District, Brooke Wunnicke, Chief Appellate Deputy Dist. Atty., Donna Skinner Reed, Deputy Dist. Atty., Denver, for plaintiff-appellee.

J. Gregory Walta, Colorado State Public Defender, Terri L. Brake, Sp. Deputy State Public Defender, Denver, for defendant-appellant.

DUBOFSKY, Justice.

The defendant, David L. Weller, appeals his conviction of second degree assault under section 18-3-203(1)(b), C.R.S., after a jury trial in Denver District Court. We affirm the judgment.

On July 31, 1980, Gerald Fleming and his friend Jack Kassell went to the 7-11 at 2609 Federal Boulevard around 2:00 a.m. to purchase rolling papers. Upon learning that they were not sold at the 7-11, Fleming and Kassell returned to their car and found papers on the car seat. Fleming commenced rolling a marijuana cigarette inside the car. At this point, a man approached the car and asked if he could buy a "joint." Fleming initially refused, but then agreed to give away one marijuana cigarette. While Fleming continued rolling the cigarette, the party walked away from the window, and two other men approached the car. One reached through the window, grabbed a bag of marijuana, said "Thanks, Bud" and ran from the car. Fleming pursued on foot. During the chase the party being pursued turned and fired two shots at Fleming.

Kassell initially stayed at the 7-11 and saw the two remaining men enter a van in the parking lot. Upon hearing the shots, Kassell took the car and followed Fleming. He found Fleming kneeling behind a fire hydrant and saw someone running up the street. Kassell drove the car up the street and onto the sidewalk to cut off the person's escape. The person turned around and ran back down the street. Fleming and the person being pursued came face to face on opposite sides of a parked station wagon. Fleming asked for his baggie back, and the person fired a third shot from a distance of ten to fifteen feet, striking Fleming in the chest. Kassell heard the shot, returned to where Fleming was, and put him in the car. They then flagged down a police car. Fleming was taken for medical assistance and Kassell was asked to remain with the police officers.

An officer near the scene heard the gun shots and, seconds later, saw someone run past his car into a nearby alley. The officer radioed a brief description of the person and then pursued on foot. The officer did not locate anyone and called for additional help. Approximately twenty minutes later another officer found the defendant hiding in a storage shed behind a residence near the alley. Two days later a gun was found in a garden about fourteen feet from the storage shed.

The defendant was taken back to the scene of the shooting, where he was identified by Kassell. The next day, August 1, Kassell and Fleming separately were shown the same photographic lineup. Fleming identified the defendant as the party who had shot him, and Kassell identified the defendant as the person Fleming had chased from the 7-11. Both Fleming and Kassell made subsequent in-court identifications of the defendant. The district court denied the defendant's motion to suppress in-court and out-of-court identifications.

The defendant was tried for attempted murder in the first degree, section 18-2-101, C.R.S. and second-degree assault, section 18-3-203(1)(b), C.R.S. During the trial, the defendant moved to require an election of counts. The prosecution agreed that it would rely only on the third shot for the attempted murder charge, and only on the second shot for the assault charge. The jury returned verdicts acquitting the defendant of attempted murder and convicting him of second-degree assault. The defendant moved for a new trial, which was granted May 1, 1981 on the ground that the jury had not been instructed on the definition of "attempt" as it pertains to second-degree assault. On May 20, 1981, the prosecution filed a motion for reconsideration of the order granting a new trial. The district court granted the motion, concluding that any error in the jury instructions was harmless, and reinstated the jury verdict.

On appeal, the defendant contends that the district court had no authority to revoke its order granting a new trial, and that even if the court did have authority to reconsider its prior decision, its action in this case was an abuse of discretion. The defendant also asserts that he was denied due process by the district court's failure to define "attempt" for the jury in the context of the second degree assault charge; that his conviction of second-degree assault, a class 4 felony, violated his right to equal protection because identical conduct is proscribed by the criminal attempt statute, section 18-2-101(1), C.R.S., which, if applied, would have resulted in a conviction of a class 5 felony; and that the district court erred in not suppressing the in-court and out-of-court identifications made by the two witnesses. We affirm the defendant's conviction.

I.

The defendant contends that the district court was without jurisdiction to revoke its order granting a new trial. Courts examining this issue have reached different results. In some jurisdictions the authority of a trial court with respect to a new trial motion terminates with the denial or grant of the motion. In Burton v. State, 296 So.2d 79 (Fla.Dist.Ct.App.1974), the court held:

[W]here a defendant has timely moved for a new trial and the matter has been heard upon the merits and thereafter an order entered either granting or denying the motion, absent fraud or clerical error the court is without authority to entertain or consider a petition for rehearing addressed to such order.

Id. at 80. Reasons given for this rule were that it would give the order finality, and that the prosecution should be prepared to refute the allegations of a new trial motion at the hearing. The Florida Supreme Court vacated this decision in State v. Burton, 314 So.2d 136 (Fla.1975), holding that the lower court's statement of the rule was correct, but that the motion for reconsideration established fraud. For similar holdings that a trial court has no authority to reconsider its order granting or denying a motion for new trial, see State Farm Mutual Ins. Co. v. Senn, 277 Ala. 508, 172 So.2d 533 (1965); People v. Lindsey, 275 Cal.App.2d 340, 79 Cal.Rptr. 880 (1969); State v. Morris, 359 So.2d 478 (Fla.Dist.Ct.App.1978).

Other courts have held that a trial court may reconsider an order granting or denying a new trial. In People v. Thompson, 38 Ill.App.3d 101, 347 N.E.2d 481 (1976), the court cited the rule that a trial court retains jurisdiction to modify an interlocutory order, held that an order granting a new trial is interlocutory, and concluded that a trial court has jurisdiction to reconsider its motion granting a new trial. In United States v. Spiegel, 604 F.2d 961 (5th Cir.1979), cert. denied, 446 U.S. 935, 100 S.Ct. 2151, 64 L.Ed.2d 787 (1980), the Fifth Circuit upheld a trial court's reconsideration of a previous order granting a new trial, holding that where the motion to reconsider was timely the trial court had jurisdiction to reconsider. Accord State v. Ornelas, 15 Ariz.App. 580, 490 P.2d 25 (1971); Fine v. Commonwealth, 312 Mass. 252, 44 N.E.2d 659 (1942); People v. Poole, 7 Mich.App. 237, 151 N.W.2d 365 (1967); People v. Phino, 80 A.D.2d 804, 437 N.Y.S.2d 104 (1981).

The cases cited above occur in various factual settings. Some allow reconsideration of an order granting or denying a new trial after a final judgment has been entered, while others forbid reconsideration at any time. The limited issue before this court is whether a trial court may rescind its interlocutory order granting a new trial before a final judgment is entered, ^{1 1} and before a notice of appeal is filed. ² We hold that it may.

This court addressed an analogous question in People v. Lewis, 659 P.2d 676 (Colo.1983), where the issue was whether a district judge might reconsider a motion to suppress previously denied by another district judge. Noting that a motion to suppress is interlocutory in character, and that neither res judicata nor collateral estoppel applies to a ruling which is less than a final judgment, this court held that a judge should be "accorded the discretion to entertain a motion to reconsider a previously denied motion to suppress when the motion to reconsider is predicated on a representation that substantial changes in law render the prosecution's evidence inadmissible at trial." Id. at 680. We commented: "It would make little sense to hold that if a judge responsible for any final judgment in the case perceived that a palpable error had been committed in the resolution of a pretrial motion, he nonetheless could take no measures to correct it." Id.

Likewise, it would make little sense to hold that if a judge responsible for the final judgment perceived that a motion for a new trial had been granted erroneously, he nonetheless could not reconsider his order before final judgment is entered or a notice of appeal filed. It also would make little sense for us to require the expense and burdens of a new trial if the judge who originally ordered the trial believes that he erred in granting the new trial motion.

As an alternative argument, the defendant asserts that even if the court had jurisdiction to reconsider its order, it abused its discretion in granting the motion for reconsideration in this case. We agree that in some cases a district court might abuse its discretion by revoking its previous order granting a new trial, but here there was no abuse of discretion where the motion for reconsideration was filed nineteen days after the new trial was ordered and before it commenced.

II.

The...