Wafai v. People
| Decision Date | 25 January 1988 |
| Docket Number | No. 85SC479,85SC479 |
| Citation | 750 P.2d 37 |
| Parties | Badawi Kamel WAFAI, Petitioner, v. The PEOPLE of the State of Colorado, Respondent. |
| Court | Colorado Supreme Court |
David F. Vela, Colorado State Public Defender, Judy Fried, Deputy State Public Defender, Denver, for petitioner.
Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Maureen Phelan, Asst. Atty. Gen., Denver, for respondent.
The defendant, Badawi Kamel Wafai, was convicted of two counts of first degree murder and was sentenced to consecutive terms of life imprisonment following a trial to a jury. The defendant appealed, and the Colorado Court of Appeals affirmed the judgment of conviction. People v. Wafai, 713 P.2d 1354 (Colo.App.1985). We granted certiorari to determine whether the trial court erred in ordering a change of venue on its own motion, over the defendant's objection, in order to assure the defendant a trial by an impartial jury. In affirming the trial court's action, the court of appeals stated that Crim.P. 21(a)(1) allows a change of venue on the court's own motion, and that such a change is not prohibited by the Colorado Constitution, Article II, Section 16. Although we do not agree that Crim.P. 21(a)(1) authorizes a trial court to change venue in the absence of a motion for a change of venue, we hold that a trial court has the inherent power to order a change of venue at its own instance when necessary to assure the defendant a trial by an impartial jury, and that such a venue change does not violate the defendant's rights under Article II, Section 16, of the Colorado Constitution. We also conclude that the trial court in this case properly exercised its discretion to change venue, and we therefore affirm the judgment of the court of appeals.
Badawi Kamel Wafai was charged with two counts of first degree murder after deliberation, based upon the shooting and killing of his brother and sister-in-law. The shooting occurred in Douglas County, and the information was filed in the Douglas County District Court.
The trial commenced with jury selection on March 15, 1983, in Douglas County. Voir dire continued for six and one-half days spread over a period of nearly two weeks. Five Douglas County jury panels consisting of over 330 potential jurors were examined by the court and counsel. On the morning of March 25, 1983, one of the prospective jurors informed the court that he had overheard three other jurors joking about "giving the guy a fair trial and then hanging the bastard." The defense moved to quash the entire group of prospective jurors who had appeared, arguing that since several of the jurors had ignored their oath to tell the truth 1 and had violated the court's order against talking about the case, the entire group was tainted.
The court questioned the three prospective jurors who had participated in the conversation in which the comments were made to obtain further information about the conversation and to determine the extent of the influence of this incident on the others. The persons questioned admitted joking about getting the case over with and hanging the defendant. They stated that other jurors had made similar remarks. The court then granted the motion to quash the entire group and dismissed the prospective jurors. Under the administrative procedures available for summoning jurors, another jury panel could not be provided in Douglas County for two weeks.
The case was continued to March 28, 1983, at which time the trial court, on its own motion and over the objection of defense counsel, concluded that a fair and expeditious trial could not be held in Douglas County. The court made the following findings:
The Court finds that at the time of granting the motion to quash the jury panel on March the 25th, 1983, this Court had exhausted five full jury panels and over 330 individual jurors from those panels, and that this took place over a period of two weeks.
Last Friday, March 25th, 1983, the Judicial Department informed the Court that another jury panel could not be provided for two weeks. The record should reflect that this would take our jury selection process into the month of April, 1983. The trial docket of this Court had previously been vacated to provide a March, 1983 setting for the trial of this case. The Courts' dockets in Elbert and Lincoln County for the month of March, 1983, had likewise been vacated and reset for the month of April, 1983, compounding the April dockets in those Courts.
In this District, Division 9, which is the number given to the Court who sits in Douglas, Elbert and Lincoln Counties is thus divided in its time schedule, and since there is only one District Judge available in Douglas County, and that on a part-time basis, the Court finds that there is no possibility of continuing this trial for two more weeks for the availability of another jury panel since the now compounded dockets in all three counties cannot be once again vacated, and there is not available to the Court in this District the accommodation of visiting judges as has been the previous practice in this District since the Chief Justice Directive Number 83-2, Subsection 5, which was the result of the budgetary crisis in our state court system.
Furthermore, based upon the record previously made in this case of the selection of the jury, together with the publicity given to the jury selection process in this last two weeks, there is no likelihood that proceeding with another jury panel in this case would achieve any better results than we have had.
Accordingly, the Court finds that a fair and expeditious trial cannot be provided for Mr. Wafai in Douglas County, and the Court orders a change of the place of the trial pursuant to Rule 21(a)(1).
The trial court ordered that the jurors be selected from a jury panel available the next day in Arapahoe County, also part of the Eighteenth Judicial District. The jury selected would then be transported to Douglas County, where the case would be tried. 2 The court allowed counsel the opportunity to register objections to its order.
Defense counsel objected to the change of venue. They argued that Article II, Section 16, of the Colorado Constitution guaranteed the defendant's right to have jury selection and all other trial proceedings conducted in Douglas County. Defense counsel contended that the applicable rules do not give a court the power to change venue on its own motion, since the right to a jury from the area in which the crime took place can be waived only by the defendant. Defense counsel also asserted that it was still possible to empanel a fair jury in Douglas County. The trial court then made additional findings as follows:
[T]he Court's docket reflects that there would be no opportunity to reset Mr. Wafai's case within the period secured by the Constitution and statutes and rules. The record will reflect that Mr. Wafai had waived his right to a speedy public trial in January, 1983, and that there is no possibility of resetting the case before July of 1983 in this Court.
The proceedings resumed in district court in Arapahoe County on March 29, 1983, and a jury was selected. The jury was sequestered for the remainder of the trial, which commenced on April 6, 1983, and was conducted in Douglas County. Wafai was found guilty of both counts of first degree murder, and a judgment of conviction was entered.
Wafai appealed the judgment, and the court of appeals affirmed the convictions. The court held that Crim.P. 21(a)(1) expressly permits a trial court, in its sound discretion, to order a change of venue on its own motion. People v. Wafai, 713 P.2d at 1355-56. The court also determined that the term "district" in the provision of Article II, Section 16, of the Colorado Constitution that guarantees a defendant a trial by an impartial jury of "the county or district in which the offense is alleged to have been committed" is synonymous with "judicial district." Id. at 1356. The court of appeals held, therefore, that the trial court did not violate the defendant's rights under Article II, Section 16, by selecting the jury from another county within the judicial district. Id. Finally, the court concluded that under the circumstances of this case, "the trial court's chosen means of preserving the defendant's right to a fair trial" should be upheld. Id. The defendant petitioned this court for a writ of certiorari, and we granted that petition.
Wafai challenges his convictions on the basis that the trial court did not have the authority to order a change of venue on its own motion, over the defendant's objection. He argues that sections 16-6-101 to -104, 8A C.R.S. (1986), and Crim.P. 18(a)(1) and 21(a) allow such a change only upon the motion of a party. The defendant also contends that the change of venue violated the Colorado Constitution, Article II, Section 16, which states in relevant part that "[i]n criminal prosecutions the accused shall have the right to ... a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed." (Emphasis added.) Finally, Wafai asserts that in any event the trial court abused its discretion in ordering a change of venue under the facts of this case and that it also erred in issuing the order without first holding a hearing. We address these arguments in the order stated.
Section 18-1-202(1), 8B C.R.S. (1986), establishes where venue is initially appropriate. That statute states that "[e]xcept as otherwise provided by law, criminal actions shall be tried in the county where the offense was committed, or in any other county where an act in furtherance of the offense occurred." (Emphasis added.) See also Crim.P. 18.
Sections 16-6-101 through 16-6-104 govern change of venue. Section 16-6-101 outlines the grounds for a change of venue, 3 and section 16-6-102 provides that a motion for...
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