Williamsen v. People

• Decision Date: 06 April 1987
• Docket Number: No. 85SC211,85SC211
• Citation: 735 P.2d 176
• Parties: Harold WILLIAMSEN, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.
• Court: Colorado Supreme Court

Page 176

735 P.2d 176

Harold WILLIAMSEN, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.

No. 85SC211.

Supreme Court of Colorado,

En Banc.

April 6, 1987.

Harry J. Holmes, Hal D. Blacker, Longmont, for petitioner.

Alexander M. Hunter, Dist. Atty., Bryan W. Quiram, Deputy Dist. Atty., Boulder, for respondent.

ERICKSON, Justice.

The defendant, Harold Williamsen, was convicted by a Boulder County Court jury of driving while under the influence of The defendant claims that the district court erred in affirming his conviction because (1) trial was not commenced within six months after he entered a plea of not guilty as required by the speedy trial statute, section 18-1-405, 8B C.R.S. (1986); (2) the compulsory joinder statute, section 18-1-408, 8B C.R.S. (1986), required joinder of the DUI charge with the separately charged traffic infraction; (3) the doctrine of collateral estoppel precluded the prosecution from introducing evidence that the defendant ran a red light immediately before his arrest for driving under the influence; and (4) evidence of the defendant's acquittal of the traffic infraction was improperly excluded in the DUI trial.

alcohol (DUI). See § 42-4-1202(1)(a), 17 C.R.S. (1984). The conviction was affirmed on appeal to the Boulder County District Court. We granted certiorari and now affirm the district court.

I. FACTS

On July 24, 1983, at 7:15 p.m., Cheryl Zemko was driving home from the grocery store in Longmont, Colorado. She stopped to wait for a red light at the intersection of 17th and Francis Streets. After the traffic signal turned green, she entered the intersection and her automobile was struck by a pickup truck driven by the defendant. Colorado State Patrolman Thomas J. Seaman (patrolman) investigated the collision. Both Zemko and the patrolman detected the odor of an alcoholic beverage on the defendant's breath. At the patrolman's request, the defendant consented to perform a roadside sobriety test. The patrolman testified that the defendant failed the test. He was then arrested and consented to a breath test which established a blood alcohol content of .178.

The defendant was issued a summons and complaint for driving while under the influence of intoxicating liquor, section 42-4-1202(1)(a), 17 C.R.S. (1984) (DUI), ¹ and driving with a blood alcohol content of 0.15 or more, section 42-4-1202(1.5), 17 C.R.S. (1984) ² (DUI "per se"). The defendant was also issued a separate summons and complaint, returnable in the referee's division of the county court, for violating a red signal light, a class A traffic infraction. See § 42-4-504, 17 C.R.S. (1984). ³

The defendant was found not guilty of the red signal light charge after a hearing before a Boulder County Court referee in December 1983. He had previously entered a plea of not guilty to the DUI charge in the county court on August 17, 1983, and trial was set for February 4, 1984. On the day of trial, the defendant moved for dismissal of the DUI charges because of the prosecution's failure to join the traffic infraction and DUI charges in accordance with the compulsory joinder statute.

The trial court took the motion to dismiss under advisement and requested "written authority from both" the prosecution and the defense. The defense was given fifteen days to submit a brief and the prosecution was to answer within ten days after the defendant's brief was filed. The defense also made an oral motion in limine to exclude any testimony regarding the defendant's failure to obey the red signal light. The defendant contended that acquittal of the traffic infraction by the county court referee collaterally estopped the prosecution from introducing evidence of the red light infraction at the DUI trial. The trial judge deferred ruling on the collateral estoppel issue until the compulsory joinder question was resolved.

The defense brief was filed on February 24, 1984. On March 5, 1984, the prosecution requested an extension of time and was granted until March 27, 1984 to file an answer brief. The answer brief was filed and the trial judge denied the defendant's motion to dismiss on April 12, 1984. A new trial date was set for May 22, 1984 and continued at the request of the prosecution to May 30, 1984.

Before trial, the defendant moved to dismiss the DUI charges because trial did not commence within six months of his plea of not guilty. § 18-1-405, 8B C.R.S. (1986). The trial judge concluded that the delay was "caused at the instance of the defendant" within the meaning of section 18-1-405(6)(f), 8B C.R.S. (1986), and denied the motion to dismiss.

The defendant also renewed his motion in limine to exclude testimony relating to his failure to stop for the red light before his pickup collided with Zemko's automobile. The trial judge concluded that collateral estoppel did not prohibit testimony of what Cheryl Zemko observed. However, the trial court granted the motion in part and excluded all reference to the issuance of the summons and complaint for the red light violation and to the traffic infraction hearing. As a result, the defendant was not permitted to introduce evidence of his acquittal.

The defendant was convicted and appealed to the district court. See section 13-6-310(1), 6 C.R.S. (1973). The district court affirmed the trial court's denial of the motions to dismiss on speedy trial and compulsory joinder grounds, as well as its evidentiary ruling.

II. SPEEDY TRIAL

Section 18-1-405(1), 8B C.R.S. (1986), provides that, "if a defendant is not brought to trial on the issues raised by the complaint, information or indictment within six months from the date of the entry of a plea of not guilty ... the pending charges shall be dismissed...." ⁴ See also Crim.P. 48(b)(1). ⁵ The defendant pleaded not guilty on August 17, 1983, and the speedy trial time period expired on February 17, 1984.

The statute requires dismissal if trial is not commenced within the six-month period, excluding the delays specifically listed in the statute. People v. Deason The defendant's motion to dismiss alleged a defect in the institution of the prosecution and was governed by the provisions of Crim.P. 12. A rule 12 "motion before trial raising defenses or objections shall be determined before the trial unless the court orders that it be deferred for determination at the trial...." Crim.P. 12(b)(4). Ordinarily, motions to dismiss under rule 12 should be in writing. See Crim.P. 47; 3A C. Wright, Federal Practice & Procedure § 801, at 191 (1982) (interpreting Fed.R.Crim.P. 47, identical to Colorado rule). Crim.P. 45(d) requires written motions to be served at least five days before the date specified for the hearing. The purpose of the rules requiring written motions, service, and notice is to allow the parties and the court an adequate time for consideration of the issues raised in the motion. See People v. District Court, 189 Colo. 159, 538 P.2d 887 (1975).

670 P.2d 792 (Colo.1983). The statute prevents "dillydallying on the part of the district attorney or the court," People v. Bates, 155 Colo. 277, 280-81, 394 P.2d 134, 136 (1964), and the "period of any delay caused at the instance of the defendant" is excluded when computing the six-month period, § 18-1-405(6)(f), 8B C.R.S. (1986). See also People v. Luevano, 670 P.2d 1 (Colo.1983) (time granted to a defendant to make restitution to qualify for deferred judgment is chargeable to the defendant); cf. People v. Fetty, 650 P.2d 541 (Colo.1982) (scheduling delays to accommodate defense counsel are attributable to defendant). When determining whether a defendant has been afforded a speedy trial, each case must be considered on an ad hoc basis. People v. Colantonio, 196 Colo. 242, 244, 583 P.2d 919, 921 (1978). Any lapse of time must be reviewed to determine "what part, if any, was due to delays at the request of or for the benefit of the defendant. The time involved in such delays is properly chargeable to the defendant." People v. Murphy, 183 Colo. 106, 109, 515 P.2d 107, 109 (1973). See also People v. Luevano, 670 P.2d at 3; Saiz v. District Court, 189 Colo. 555, 558, 542 P.2d 1293, 1295 (1975). Based upon the facts in this case, the delay incurred in briefing and determining the defendant's motion to dismiss for nonjoinder was properly charged to the defendant, section 18-1-405(6)(f), 8B C.R.S. (1986).

Here, the defendant made an oral motion to dismiss on the morning of trial. Counsel provided no authority to the trial judge, despite the fact that the defendant had been acquitted of the traffic infraction two months before. The delay incident to the resolution of the defendant's motion to dismiss was "at the instance of the defendant," section 18-1-405(6)(f), 8B C.R.S. (1986). Accordingly, the period of time between the date of defendant's oral motion, February 9, 1984, and the date the trial judge denied the motion, April 12, 1984, was chargeable to the defendant and properly excluded from the speedy trial time period. ⁶

The defendant relies on People v. Colantonio, 196 Colo. 242, 583 P.2d 919 (1978), and People v. Murphy, 183 Colo. 106, 515 P.2d 107 (1973), and asserts that delay caused by a defense motion is, as a matter of law, chargeable to the court or prosecution and is not excluded from the speedy trial period. The cases cannot be read so broadly. In Colantonio, we declined to charge the defendant with the delay caused by the trial court's failure to specify a new The county court and district court judges both found that the period of delay between the denial of defendant's motion to dismiss and the rescheduled trial date of May 22 was reasonable, and we will not disturb that finding. Cf. People v. Martin, 732 P.2d 1210, 1213 (Colo.1987) (reasonable period in which to reschedule trial should be excluded pursuant to section 18-1-405(6)(d), 8B C.R.S. (1986), when original trial date delayed due to voluntary unavailability of defendant).

                venue.  196 Colo. at 244, 583 P.2d at

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