Perez v. People

• Decision Date: 09 November 1987
• Docket Number: No. 85SC68,85SC68
• Citation: 745 P.2d 650
• Parties: Joseph L. PEREZ, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.
• Court: Colorado Supreme Court

Page 650

745 P.2d 650

Joseph L. PEREZ, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.

No. 85SC68.

Supreme Court of Colorado En Banc.

Nov. 9, 1987.

David F. Vela, State Public Defender, Douglas D. Barnes, Deputy State Public Defender, Denver, for petitioner.

Duane Woodard, Atty. Gen., Charles B. Howe, Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Virginia Byrnes Horton, Asst. Atty. Gen., Denver, for respondent.

ROVIRA, Justice.

A jury convicted defendant of theft, § 18-4-401, 8 C.R.S. (1978 & 1984 Supp.), and second-degree forgery, § 18-5-103, 8 C.R.S. (1978 & 1984 Supp.), in the Pueblo County District Court. The court entered judgment and sentenced defendant to terms of three years for the forgery conviction, and five years with one year of parole for the theft conviction. The court of appeals affirmed defendant's convictions. People v. Perez, 701 P.2d 104 (Colo.App.1985). Because we conclude that the prosecution's improper use of a defense-retained expert in its case-in-chief was prejudicial to defendant, we reverse the judgment of the court of appeals and remand for a new trial.

I.

On October 23, 1980, a man using the name "Fred Garcia" opened a checking account at the Park National Bank (Park National) in Pueblo with a $200 cash deposit. Later that day, he deposited into the account a $5,000 check drawn on the United Bank of Pueblo (United Bank) account of Douglas Bratton. During the following four days, the same man used the deposit receipt Park National had issued him to cash four checks in the amounts of $5,000, $4,500, $1,000 and $900.

On October 27, United Bank officials notified Park National that it would not pay the Bratton check due to insufficient funds. Shortly thereafter, it was discovered that the Bratton check had been forged and that the four checks drawn on the Garcia account (for a total of $11,400) had all been cashed on the basis of the single $5,000 deposit receipt.

Approximately two weeks later, an employee of Park National observed the defendant at a restaurant and recognized him as the man who had opened the Garcia account. Defendant was subsequently arrested. Two Park National tellers identified defendant from a photographic lineup as the individual who had cashed checks on the Garcia account.

Investigators obtained handwriting exemplars from the defendant and submitted them with the checks and account card (collectively the "questioned documents") to Howard Rile of the Colorado Bureau of Investigation (CBI). After comparing the questioned documents with defendant's exemplars, Rile was of the opinion that defendant had probably written seven of the eight documents, but he was unable to make a positive identification.

In January of 1982, defendant's attorney retained Andrew J. Bradley, a handwriting expert, to analyze the various documents in preparation for trial. Bradley examined only photocopies of the questioned documents, and reached a tentative conclusion that the questioned documents were probably not written by the defendant. He was unable to render a final opinion without examining the original documents.

The defendant later reached an agreement with the prosecution, under the terms of which he pleaded guilty to the theft charge and the trial court dismissed the forgery charge. Prior to sentencing, however, the court allowed defendant to substitute new counsel and entertained defendant's motion to withdraw his guilty plea pursuant to Crim.P. 32(d). The court held a hearing, ruled that defendant's plea was not voluntary, and granted defendant's motion. The court reinstated the forgery charge and set the case for trial. Bradley testified at the hearing on defendant's behalf regarding his analysis of defendant's handwriting.

Subsequent to the 32(d) hearing, defendant's attorney arranged for the original questioned documents to be examined by Bradley. He examined the originals but did not alter his opinion that the defendant had not written them.

In May of 1982, Bradley obtained several "course of business" writings from defendant, consisting mostly of checks defendant had written on his own account. In light of the new evidence, Bradley changed his opinion and concluded that defendant had written the questioned documents.

As a consequence, the defense decided not to call Bradley as its expert witness at trial. The prosecution, however, sought to endorse Bradley as its own expert. In testimony out of the presence of the jury, Bradley revealed that sometime after deciding that defendant had written the questioned documents he had been in contact with Rile, the CBI expert, regarding his analysis. He also revealed that he had discussed the matter with the district attorney and had not informed defense counsel of this contact until the day of the trial. Bradley conceded that he considers himself an agent of the attorney who hires him and that defense counsel in this case had never authorized him to speak with the prosecution.

Over objection by the defense, the trial court permitted Bradley to testify during the prosecution's case-in-chief, and the prosecution called no other experts at that time. The defense presented the testimony of Henry Silver, a handwriting expert, who offered the opinion that the defendant had not written any of the questioned documents. The prosecution later called Rile to rebut Silver's testimony, and Rile testified that, in his opinion, the defendant had probably written seven of the eight questioned documents.

The defendant contends that the prosecution's use of Bradley during its case-in-chief violated his right to effective assistance of counsel as well as the attorney- client privilege. We need address only the former claim.

II.

Our analysis of this case is governed by our recent decision in Hutchinson v. People, 742 P.2d 875 (Colo.1987), in which we held that the prosecution's use of a defense-retained expert during its case-in-chief, absent compelling circumstances or waiver, violated the defendant's right to effective assistance of counsel. Hutchinson, 742 P.2d at 879. We held further that such use of a defendant's expert ordinarily should give rise to relief only upon a specific showing that the defendant suffered prejudice thereby, and we adopted the test announced in Strickland v. Washington, 466 U.S. 668, 691-96, 104 S.Ct. 2052, 2066-69, 80 L.Ed.2d 674 (1984), to assess the effect of the improper testimony: "Whether there is a reasonable probability that, absent the improperly used witness, the fact finder would have had a reasonable doubt respecting guilt." Hutchinson, 742 P.2d at 886.

A.

We find first that no compelling circumstances existed which permitted the prosecution to call Bradley during its case-in-chief and that the defendant did not waive his right to object to Bradley's testimony.

We recognized in Hutchinson that some circumstances may justify the prosecution's use of a defense-retained expert in its case-in-chief as when, for example, "the prosecution could not obtain other competent experts in the field of handwriting analysis." 742 P.2d at 886. Our examination of the record below reveals no such compelling justification.

The prosecution decided to call Bradley as its own witness after it learned that he held an opinion favorable to its case and that he had considered a substantial number of defendant's course of business writings in formulating his opinion. Because the prosecution's expert, Rile, had not considered those writings, but instead relied upon fewer and less telling exemplars, Rile was unable to express as much certainty in his opinion as Bradley was that the defendant had written the questioned documents. As a consequence, the prosecution relied on Bradley as its sole expert during its case-in-chief and reserved Rile as a rebuttal witness.

The facts below are similar to those we addressed in Hutchinson, in which the defense-retained expert requested Hutchinson, the defendant, to provide handwriting samples and specifically asked him to use certain words which had been misspelled on the forged documents. The expert noted that Hutchinson misspelled two words in precisely the manner they were misspelled on the forged documents, and his testimony to that effect was thus more persuasive than the testimony of other experts who had not conducted similar spelling tests. We found that to be an insufficient justification for permitting the prosecution to call that expert: "[W]e see no justification in permitting the prosecution to use a defense expert simply because its own experts failed to conduct their own tests in a manner that could have produced results equivalent to those of the defense expert." 742 P.2d at 887. Although the present case involves the defense-retained expert's use of samples not made available to the prosecution, we find the reasoning of Hutchinson equally applicable in these circumstances.

Further, the fact that the defendant called Bradley to testify at the 32(d) hearing did not constitute a waiver of defendant's right to object to the prosecution's use of Bradley during its case-in-chief.

"A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege." Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938). In Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970), the Supreme Court held that, "[w]aivers of constitutional rights not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences." Id. at 748, 90 S.Ct. at 1469. Accord King v. People, 728 P.2d 1264 (Colo.1986). Because of the importance of the right at issue, we will "indulge every reasonable presumption against a waiver...." King, 728 P.2d at 1268. In this case, defendant's counsel could not foresee that the expert whom he retained would be called by the prosecution as its expert during its case-in-chief. As a result, defenda...