*1 No. District, Judicial Hunter, Attorney, Twentieth District Alexander M. Judicial the Twentieth Boulder, v. District Colorado Colorado, Neighbors, William D. District, and Honorable State District, State Judicial in and for Twentieth Judge District Colorado 1265)
(543 P.2d Decided December *2 Hunter, Alexander M. Hale, District Attorney, Daniel C. Deputy, for petitioner.
Rollie Rogers, Defender, Dumas, R. Jr., State Public James F. Chief McCormick, G. Deputy, Paul Deputy, respondents.
En Banc. MR. JUSTICE KELLEY opinion delivered the of the Court. Petitioner, Boulder, District Attorney County for the instituted this original proceeding pursuant to C.A.R. 21. We issued a rule to show why cause information, the criminal which was issued at the instance of the petitioner and dismissed by a respondent hearing, should not be We reinstated. now make the rule absolute. a 28, 1975, prelimi- conducted district respondent July
On Romero, pursuant Jesus criminal case nary hearing rape, charged with two counts of been 7(h). defendant had Crim.P. second-degree kidnap- 18-3-401, 1973,1 and one count of C.R.S. section 18-3-302, C.R.S. Section ping. witness, Louise complaining hearing,
At Eddie Gonzales, respects by in several was contradicted discrepancies Most of the concerned for the defense. Quitana, witness time occurring evening question up on the of events sequence testified that she had Mrs. Gonzales alleged rape. kidnapping alleged rape; prior with the defendant sexual intercourse never had by the evening in escorted de- question on the party that she attended a fendant; abused her at the verbally physically the defendant friend, home had her ride after Quintana, given that Eddie party; *3 them; following was that that the defendant did not realize that she party; will; car, her her against the abducted Quintana’s when left defendant she an where twice he had non- open her in his van to field that he took her; abusing and physically intercourse with' her after sexual consensual police. to call the that she escaped the at with defendant and Mrs. plant who works the same
Quintana, Gonzales, as He testified that the defendant was called a defense witness. the together; arrived the that defendant had party Mrs. Gonzales at and together out in the and party they country at the that were publicly stated said, her; became and upset had “balled” that Mrs. Gonzales that he us”; fucker, that the defendant then at- just that was between “You floor, the which she threat- to restrain on at time Mrs. Gonzales tempted Quin- sought a ride home with police; call the Mrs. Gonzales ened to that the noted that the agreed; way which he that on home tana to she them; her off at her Quintana dropped and that following defendant home, trouble with the telling get her to inside in order to avoid quickly defendant. judge testimony the witness had complaining
The found that the Therefore, judge the respects.” been contradicted in material “several “in be- disregard entirety,” chose to the of Mrs. Gonzales in fiction her distinguish testimony. he could between cause not fact district seeks a writ attorney He therefore dismissed the information. The the information. reinstate directing from this court (1) district proceeding: does a by There are two issues presented hearing jurisdiction have to consider conducting court a preliminary determining the existence or absence of witnesses credibility exist, cause; jurisdiction respon- did (2) assuming such probable Law, p. by 1975 Sess. 1Now H.B. amended
dent
abuse his discretion
this case?
hearing
The 7(h)
in Colorado under Crim.P.
is not
mini-trial,
but rather
limited to
determining
is
whether
purpose
there is
cause to believe that a crime was
probable
committed and that the
Court,
defendant
it.
committed Maestas v. District
Colo.
889;
People
P.2d
v. District
The issue
a judge
of whether
in a preliminary hearing may consider
the credibility of witnesses in determining probable cause is one of first
impression in Colorado.2
jurisdictions
Other
which have considered the
matter have
held that
generally
the
of
credibility witnesses at a prelimi
hearing is
nary
a proper consideration for
judge
the
determining proba
State,
ble
cause. Wilson
59
v.
Wis.2d
In supra, the Wisconsin Supreme Court held magis- that a trate must assess the of credibility witnesses in preliminary hearings in or- Court, passing While we mentioned the issue in in Biddle District v. 183 Colo. (1973), we did not consider issue on the its merits. cause. to establish is evidence if there credible to determine
der “plausibility However, credibility of inquiry restricted the the court hearing As the preliminary trustworthiness.” general story the and not of cause of determining probable for the purpose is primarily in Wisconsin estab- needed to arrest, prosecution all that the discovery, not for the the de- of the crime committed account a believable plausible, lish fendant. Nevada stated Supreme v. the Sheriff, supra,
In Wrenn hearing, the preliminary the conflicting evidence at when there is that the the weight to be accorded determine the magistrate must holding: qualified But the court witnesses. be from the it agency can drawn evidence of criminal
“. . an inference .[I]f it, to thereby leaving jury at the to draw magistrate for the is proper the witnesses are more credi- determination of which of the ultimate trial ble. homicide, of a de- being in the nature for the explanation
“The accused’s false, true or or un- kill], whether specific intent reasonable fense [no trial; reasonable, for consider at and neither is the trier of fact to hearing upon petition corpus habeas examination nor the a substitute for that function.” designed is as #2, Supreme Michigan up- Court of v. Paille People supra, In warrant at the preliminary the trial court’s dismissal an held of the witnesses for judge found that hearing, because Therefore, had a perjurious. was “incredible” and weight and of the evi- judgment, competency on the “duty only to pass dence, the witnesses.” credibility but also Bieber, City Magistrate supra, a judge can resolve in testi- hearing, the conflicts that at a preliminary held overwhelming.” evidence is mony, only but “where the hold in a pre- court Only in the case does state Jones evidence, weigh “to resolve con- liminary always liberty That particular witnesses.” give or withhold credence flicts difference indicates fundamental Supreme Court decision California hearing in in the California and the function of a preliminary between jurisdictions, including Colorado. above-cited other “mini-trial,” empha California is preliminary hearing on admissible In such trial evidence. sizing probability conviction at *5 of situation, judge the to as trier allows act a the Jones decision properly a “mini-trial,” Colorado, however, hearing is not a the preliminary fact. Rather, is of fact. his in role trier function judge such a is a and the probable of cause. the existence or absence solely to determine to hearing jurisdiction judge a in a has hold that preliminary We when, law, a the tes- as matter of credibility only of witnesses the consider timony is or When there a conflict in implausible incredible. is mere the the testimony, jury, judge of fact exists for and the must draw question the inference favorable the prosecution.
The in testimony conflicts in case are not sufficient to sup finding judge port by implausible the that Mrs. Gonzales’ or incredible matter are not the as a of law. We unmindful of deference normally findings shown of a who has the assessing benefit the demeanor of the witness in than on the person rather basis a cold rec Nevertheless, ord. we believe that this case the trial in abused his discretion in disregarding of Mrs. Gonzales.
We order information judge. reinstated district The rule is made absolute. DAY, GROVES, and MR.
MR. JUSTICE MR. JUSTICE JUS- TICE ERICKSON dissent. dissenting.
MR. JUSTICE GROVES I dissent. the court have ruled respectfully While I think should otherwise, I say cannot that it abused discretion or committed reversi- Therefore, ble error. To do a trial I so makes this tribunal court. cannot majority concur in the opinion.
MR. dissenting. JUSTICE ERICKSON view,
I the majority dissent. In is not respectfully my opinion sup- to, ported by, holding is this court’s in Maestas contrary v. District ignores majority manifest in- referring hearing consistency screening to a as device de- signed case, to test the sufficiency and then foreclos- prosecution’s ing out, case, dismissing the trial from or screening prosecution’s Maestas, when probable has not we cause been established. As said “ ‘the is of to the that it preliminary hearing value offers a prosecution method for testing eliminating witnesses complaints prosecuting actuated with prosecutions by prejudice or motives inconsistent a fair ad- ministration of the criminal law.’”
The Commentary of The Law American Institute’s Model Code of Pre-Arraignment following Procedure offers the recommendation as a determining probable hearing: means the preliminary cause at screening “The of evidence or standard quantum pre- applicable liminary hearing usually stated in terms but is not fur- cause ther defined. Because the used to state applica- same term is the standard ble to arrests and often because the function of serves the trial, reviewing legality in addition to cases for screening arrests are and many apply two standards often confused courts *6 54 to the Since the view is that the preliminary hearing.
standard Code’s trial, charges go function of the is to screen out that should not it a standard that more evidence than is for an ar- adopts requires required rest. tried,
“Since the
is to screen out cases that should
be
purpose
Subsec-
(3)
tion
formulates the standard in terms of evidence sufficient to support
guilty.
a verdict of
The
does not have to be persuaded of the defend-
guilt
ant’s
but should view the case as if it were a trial and he were re-
enough
to rule on whether there is
evidence to send the
quired
case to the
jury.
judges
This standard is thus familiar to trial
prove
should
less
confusing in its application than the current
standards.”
applicable
Model
Procedure,
596,
Pre-Arraignment
Code
pp.
though
mini-trial,
Even
the preliminary hearing is not a
the trial
judge should be allowed to utilize his powers of evaluation and reason in
Court,
the face of conflicting testimony. Maestas v. District
supra.
majority
The
opinion charts a new course which
contrary
great weight
authority
and which virtually-
screening
.eliminates
preliminary hearing.
function of the
How is a
to determine if a
charge
is “actuated
prejudice or motives inconsistent with a fair admin-
istration of criminal law” unless he assumes the responsibility of evaluat-
ing the credibility and claims of the witnesses appearing before him? In-
deed,
Groves,
Mr. Justice
speaking for a unanimous court in Biddle v.
Court,
District
183
(1973),
516 P.2d
recognized
that the
screening function necessarily embraced a determination of the credibility
of witnesses. This observation was consonant with the views of a majority
jurisdictions
State,
that hve addressed the same issue. Wilson v.
Wis.2d
208 N.W.2d
(1973);
Jones v.
Superior
Cal.3d
483 P.2d
(1971);
The law is well settled that the prosecution bears the burden of proof at a preliminary hearing. The prosecution, in order to establish probable cause, must fact separate from fiction so that the court can evaluate the prosecution’s case, case. If the prosecution’s testimony offered it, support of appear generated be by motives other than candor and honesty, then the prosecution simply has failed to sustain its burden of case, proof. plainly indicated that he was unable to distin- guish between fact and falsehood on the basis of the of the pros- circumstances, ecution’s chief witness. Under these to hold that charges must be bound over for trial clearly undermines the law respecting the burden of at a proof preliminary hearing. will majority holding cause defense counsel to view prelimi- view,
nary hearing as a useless charade. Under the it majority would be folly sheer for defense counsel to offer evidence or call witnesses. The pre- decision, liminary hearing, under the majority amounts to an ex parte *7 proceeding where the defendant’s to attempt explain position his is re- duced meaningless gesture. future, to a charges, Criminal in the are to be bound over on the basis of a wooden comparison between the of testimony the prosecution’s witness and the elements of the crime. Such a procedure undermines the true function of preliminary hearing which tois weed out the which should cases never have been filed.
Moreover, this court was court, never intended super to sit as a trial and to evaluate the credibility of witnesses whom it has neither seen nor Questions heard. concerning the credibility of witnesses and the weight to be given their a preliminary hearing are for the trial to resolve, and this court should not substitute judgment its for that of the trial court. People Tilley, 473, 411 Ill. N.E.2d 104 499 DeMond v. Superior Court Los Angeles County, 340, 57 Cal.2d 368 of 865, P.2d (1962). 19 313 Cal.Rptr.
The law was well stated by the Supreme Court of Illinois when it said:
“Questions concerning the credibility of witnesses and
weight
to be
given their testimony are matters for the court
on
preliminary exami
nation,
jurors
or for the
them,
when the
testify
witnesses
before
and this
court will not substitute its judgment on such matters for that of the trial
court or the jury. People
398,
v. Tilley, 406 Ill.
Similarly, the Supreme Court of California correctly resolved the same is- sue: of
“Credibility examination, witnesses at the course, of is a question of fact within the province committing magistrate to deter- mine, and neither the superior court nor an court appellate may substitute judgment as to such question for magistrate. that of the (Perry v. Supe- (1962) rior 302, 57 [5,6], 1, A.C. 529; 309 19 Cal. Rptr. 368 P.2d (1960) v. Malki 118, 181 [1], 207; 121 5 Cal.App.2d Cal. Rptr. (1958) v. Bouchard 161 [8], 646; 306 Cal.App.2d 326 P.2d (1958) People v. Cornett [1], Cal.App.2d 322 P.2d cited.) and cases there The magistrate is not bound to believe even the un- witness, contradicted of particular especially where the state- ments self-serving are magistrate has reason to believe that other testimony of the witness is untruthful . . . .” DeMond v. Superior Court Los County, Angeles Cal.2d Cal.Rptr. of (1962).
Massachusetts, in a decision that to be commended for its analysis us, the issue which is now before not only recognized that the trial judge evidence, right duty weigh has a and a the credible but also clarified the quantum proof required finding probable that is cause at a pre- liminary hearing: standard of probable greater cause to bind over must require
“[T]he
quantum legally competent evidence than the
cause to
finding to insure that the preliminary hearing’s screening standard is de-
fined in a
that effectuates its
‘It
way
is the
who must
purpose.
magistrate
belief,”
determine whether the
“reasonable
when made visible
policeman’s
constitutes
cause” to believe a crime has been
. . .
“probable
committed
finding
sufficient evidence to warrant a
jury’s
accused guilty.’
[and]
Goldstein, The State and the Accused: Balance
Advantage
Procedure,
Criminal
Yale
L.J.
examining magistrate’s
“Since the
determination of the minimum quan-
tum of evidence
to find
required
probable cause to bind over is somewhat
analogous in function
ruling
court’s
on a motion for a directed ver-
dict at trial as to whether there is sufficient evidence to warrant submis-
*8
sion of the case to the
we have
jury,
decided to
a ‘directed verdict’
adopt
defining
rule in
the minimum
of credible
quantum
evidence necessary to
a bind-over
support
determination. The examining magistrate should view
the case as if it were a trial and he were required to rule on whether there
enough
credible evidence
Thus,
to send the case to
jury.
the magis-
when,
trate should
complaint
dismiss the
on
evidence presented, a trial
court would be
Bernstein,
bound to
as a matter
acquit
of law.
v.
People
(N.Y.C.
N.Y.S.2d
Magis.Ct. 1950).
The minimum quantum of
evidence required by this bind-over standard is more than that of probable
cause for
but
than
less
would
‘prove
defendant’s guilt
beyond
Bieber,
reasonable
doubt.’
v.
100 N.Y.S.2d
(N.Y.C.Magis.Ct.).
Baron,
See also Commonwealth v.
356 Mass.
365-366,
Commonwealth,
Myers
N.E.2d 220.”
v.
In summary, I believe that the trial judge should be by bound a test that would be equivalent to the Massachusetts test and patterned upon Bennett, principles we established in v. (1973), to assess a motion judgment for of acquittal. view,
In my the record in this case does not reflect any abuse of dis- cretion by the trial in his determination that cause was not established. The testimony of the prosecution’s key witness was contradic- ted in several witness, material respects by defendant’s Edward R. Quintana. Quintana testified that Mrs. Gonzales struck out at the defend- ant during the party because the bragging defendant was having about “balled” her. Mrs. Gonzales became very according upset, Quintana, actually and threatened Quintana to call the police. also heard Mrs. Gon- defendant, fucker, zales say to the just “You that was between us.” Other testimony established that may Mrs. Gonzales well have been embarrassed going defendant, about with out inasmuch as she was married to an- other man. The trial justified considering whether the charges which Mrs. Gonzales made were “actuated or mo- prejudice tives inconsistent with a fair administration of the criminal law.” my opinion, the majority opinion breeds an inconsistency into al- ready troublesome area of the Though law. been consistency has said to be the “last refuge unimaginative,” I laws are prefer certain and predictable. For reason, I would discharge the rule.
MR. JUSTICE joins DAY has me say authorized that he me in this dissent.
No. C-548 Hiigel Fred Division, General Motors Corporation, Chevrolet Motor corporation; Delaware Aspen Corporation, Coach corporation; Colorado and Eldon Martin Martin Company Motor d/b/a
(544 983) P.2d Opinion Decided rehearing December 1975. modified as modified motion February clarification denied