Williams v. District Court, El Paso County

• Decision Date: 28 May 1985
• Docket Number: No. 84SA470,84SA470
• Citation: 700 P.2d 549
• Parties: Nancy WILLIAMS, Petitioner, v. DISTRICT COURT, EL PASO COUNTY, Colorado, and one of the Judges thereof, Honorable Robert Elliott, Respondents.
• Court: Colorado Supreme Court

Page 549

700 P.2d 549

Nancy WILLIAMS, Petitioner, v. DISTRICT COURT, EL PASO COUNTY, Colorado, and one of the

Judges thereof, Honorable Robert Elliott, Respondents.

No. 84SA470.

Supreme Court of Colorado,

En Banc.

May 28, 1985.

David F. Vela, Colo. State Public Defender, Michael J. Heher, Denver, Kenneth M. Plotz, Salida, Philip L. Dubois, Deputy State Public Defenders, Boulder, for petitioner.

Dennis E. Faulk, Dist. Atty., Roger Larsen, Asst. Dist. Atty., Canon City, Steven B. Rich, Deputy Dist. Atty., Fairplay, for respondents.

QUINN, Justice.

The petitioner, Nancy Williams, who is awaiting a new trial on a charge of second degree murder, filed this original proceeding under C.A.R. 21. She seeks an order directing the District Court of El Paso County to quash subpoenas served on a deputy public defender who is presently representing her in the pending criminal prosecution, two attorneys who formerly represented her on the criminal charge, and a public defender investigator. The subpoenas commanded the persons served to appear at the scheduled murder trial and to give testimony on behalf of the prosecution. We issued a rule directing the district court to show cause why the relief sought by the petitioner should not be granted. We now make the rule absolute in part and discharge the rule in part.

I.

The petitioner was charged in the District Court of Chaffee County with first degree murder after deliberation ¹ committed against her husband, Clint Williams, on January 27, 1981. Venue was changed to the District Court of Fremont County, where a jury trial resulted in a guilty verdict to the crime of second degree murder. ² The prosecution's theory at trial was that the petitioner killed her husband in the family home on January 27, 1981, immediately left the home to visit relatives, and then returned to the home on February 13, 1981, when she reported her discovery of her husband's dead body to the police. The petitioner filed a motion for a new trial based on newly discovered evidence consisting of information received from a witness, Richard Martin, who allegedly saw the victim alive after January 27, 1981, when the petitioner was away from the family home. This new evidence contravened the prosecution's trial theory that the petitioner killed her husband at the family home on January 27, 1981, and upon her return from visiting relatives reported the discovery of his body to the police as a pretext to cover up her crime.

Richard Martin testified to the following facts during the hearing on the petitioner's motion for a new trial. He was a friend of the victim and was also acquainted with the petitioner. The last time he saw the victim was during a conversation with him on a street in Buena Vista, Colorado, on "February 4th, give or take a day." Martin subsequently heard of the victim's death on a radio newscast. When Martin later read in a newspaper article that the petitioner had been charged with the killing of her husband, he contacted Leonard Campbell, a Montrose attorney who was then representing the petitioner, and offered to appear as a witness if necessary. Because Martin at that time did not realize the significance of the date of his conversation with the victim, he did not convey this information to Attorney Campbell. ³ Nor, according to Martin, did he offer this information to Kenneth Plotz, the deputy public defender who was appointed by the court to represent the petitioner and served as trial counsel at the first trial. ⁴

Following the guilty verdict returned by the jury, Martin again read newspaper accounts of the trial and realized for the first time the importance of the date on which he saw the victim. He accordingly contacted Attorney Plotz and conveyed this information to him. Martin acknowledged during his testimony that he signed an affidavit, prepared by Plotz, in which he stated that prior to trial he had not come forward with this information about having seen the victim on or about February 4, 1981, because at that time he did not realize its significance to the case. Martin was extensively corss-examined by the district attorney on his reason for not coming forward with this information earlier and also on the basis of his belief that he actually saw the victim on or about February 4.

Attorney Plotz also testified at the motion hearing, primarily to establish the legal predicates for the motion for a new trial on the basis of newly discovered evidence. ⁵ Plotz testified that he first became aware of the new evidence when Martin telephoned him at his home. Plotz stated that, because his children were running around the house and he was entertaining several friends who were engaged in conversation, he "tried to get in a place where I could hear and discuss the matter with [Martin] and I did." Plotz's recollection of the conversation was that Martin told him that "he had talked with Clint Williams during the first week of February 1981." On cross-examination by the district attorney, Plotz gave the following testimony:

Q Would it be fair to say that the statement during the first week of February, 1981, on the one hand and a statement that something happened on February 4th, 1981, are somewhat different in flavor and nuance?

A No, that wouldn't be fair at all. He may very well have said on the night he called me at home, February 4th. As I said before on direct examination, I wasn't expecting the call, I wasn't in the frame of mind to deal with the call immediately. There was a lot going on in my house and it is very difficult for me to remember exactly what he said on that night.

Plotz further testified that on another occasion Martin telephoned him at his office and left his address and phone number. Plotz later drafted a letter to Martin in which he requested specific information about the new evidence. Martin wrote a letter to Plotz in response and, according to Plotz, it was Martin's written response that Plotz used in preparing the affidavit ultimately signed by Martin and filed in support of the motion for a new trial.

The court, on the basis of the evidence elicited at the motion hearing, granted the petitioner's motion for a new trial and changed venue to the District Court of El Paso County where the matter was set for a jury trial on November 26, 1984. The prosecution thereafter served subpoenas on Plotz, the petitioner's former attorneys, Leonard Campbell and Kenneth Baker, and Thomas Ewing, a public defender investigator. Philip Dubois, a deputy public defender who was serving as co-counsel with Plotz, moved to quash the subpoenas on several grounds, including the following: that the prospect of Plotz testifying against the petitioner would create an ethical dilemma in relation to the continued representation of the petitioner by the public defender office; that the testimony from these witnesses would violate the attorney-client privilege and the work product doctrine; and that the testimony which the prosecution seeks to elicit from these witnesses is irrelevant. The prosecutor, during the hearing on the motion to quash, informed the court that he intended to call the subpoenaed witnesses at trial in order to prove that at no time prior to the first trial did Martin advise them of his alleged encounter with the victim. The prosecutor also advised the court that he intended to call Plotz in order to establish an inconsistency between Martin's testimony at the new trial hearing that he had seen the victim on "February 4th, give or take a day" and his telephone conversation with Plotz in which he told Plotz that the conversation with the victim occurred "during the first week of February." The prosecutor further told the court that he intended to examine Plotz at trial with respect to his other conversations with Martin and also the circumstances surrounding the execution of Martin's affidavit filed in connection with the motion for a new trial.

The respondent court denied the motion to quash. It ruled that although the subpoena served on Plotz may ultimately compel the public defender office to withdraw from the pending trial, the trial testimony of the subpoenaed witnesses would violate neither the attorney-client privilege nor the work product doctrine. We conclude that Plotz's present representation of the petitioner in the pending trial to which the subpoena is directed and the prosecution's failure to make a requisite showing that Plotz's trial testimony would be adverse to the petitioner and would likely be admissible at trial, as well as the absence of any compelling need for such testimony, render the respondent court's denial of the motion to quash the Plotz subpoena clearly erroneous. We accordingly make the rule absolute as to the subpoena served on Plotz. Because the considerations applicable to Plotz as present counsel for the petitioner are not present in the case of the other subpoenaed witnesses, we discharge the rule as to the subpoenas served on them.

II.

Article VI, section 3 of the Colorado Constitution vests this court with the jurisdiction to issue original and remedial writs. The exercise of our original jurisdiction is discretionary and is necessarily governed by the particular circumstances of the case. E.g., Neusteter v. District Court, 675 P.2d 1 (Colo.1984); Sanchez v. District Court, 624 P.2d 1314 (Colo.1981); Shore v. District Court, 127 Colo. 487, 258 P.2d 485 (1953). We recognize that an order denying a motion to quash a subpoena is interlocutory in character, People v. Hearty, 644 P.2d 302, 312 (Colo.1982), and thus not ordinarily reviewable in an original proceeding. On occasion, however, we have entertained an original proceeding in connection with an interlocutory order when the order raises a substantial issue relating to the administration of criminal justice, see, e.g., Osborn v. District Court, 619 P.2d 41 (Colo.1980); A v. District Court, 191 Colo. 10, 550 P.2d 315 (1976), or places an accused at an...