*1 MOODY, Plaintiff-Appellant, Laura LARSEN, Attorney for
Roger as District of the State the 11th Judicial District Colorado, Defendant-Appellee.
No. 87CA0428. Appeals, Colorado III. Div. 8, 1990. Nov. Roberts, DiCola, Hot Ellen
Anthony S. J. plaintiff-appellant. Sulphur Springs, Alderton, Atty., Deputy Dist. Sa- William lida, defendant-appellee. by Judge JONES. Opinion
Plaintiff, Moody, judg- appeals Laura complaint ment dismissal the defen- sought order a court Larsen, attor- dant, then a district Roger Moss, she Damon a man ney, We re- murdering her accuses brother. remand. verse and Dowell, brother, shot James after Moss death in front of home between the two. conversation *2 over, According that, to affidavits and Moody oral testimo- offered evidence because ny, Moss, high-cali- who armed with a was personal enmity of Larsen’s toward Dow- pistol, believing ber went to house ell, Dowell’s arising against out of an earlier case angry that Dowell him. A was con- Dowell, intentionally he failed to conduct a lawn, frontation ensued front and thorough investigation of the facts sur- Moss, larger when Dowell struck the much rounding Moody, Dowell’s death. there- fled, Moss shot Dowell. When Dowell fore, alleged that Larsen’s decision not to Moss at him shot two more times from prosecute arbitrary capricious. was behind, with at least one of these bullets Moody’s complaint, The court dismissed hitting After Dowell. Dowell fell to the finding prosecute that the decision not to ground, shots two more were fired Moss arbitrary, capricious, was neither un- nor range. at close reasonable. Defendant, who was the district attorney Moody appeal, On asserts that judicial district in which the events 1) denying court erred her motion for occurred, prosecute declined to Moss. limited and for a continuance so Pursuant 2) completed; could be fail- 8A), Repl.Vol. Moody complaint filed and ing apply generally the rules of civil alleging affidavit that Dowell was mur- 3) procedure; request denying her to call and, accordingly, dered that Larsen’s fail- witnesses; 4) failing rebuttal to order prosecute unjustified. ure to was The com- prosecute appoint Larsen to or plaint requested that the trial court order prose- Larsen to file an information and to responds by asserting Larsen Moss, appoint special pros- cute or that it special statutory proceed- ecutor to do so. and that the rules of civil do upon Based affidavit Moody to it. He contends that complaint, the district court ordered not entitled to call rebuttal appear hearing explain Larsen to in a his witnesses, procedur- nor to of the other prosecute. decision not to The court did privileges provided by al the rules. There- Moody pursue discovery prior fore, maintains, Larsen the trial court was hearing. correct in its determination that he did not hearing At on the Larsen improperly deciding act prosecute not to testified that he had determined that there Moss. We conclude that the trial court probative guilt was a lack of evidence erred. and that the facts him indicated to that the shooting justified by self-defense. I. acknowledged The trial court that the bur- Moody first contends but, proof den of despite was on her present court’s failure to allow her to both protestation, present it did not allow her to her own witnesses and rebuttal evidence testimony. evidence to Larsen’s rebut hearing requirement violated the was, however, allowed to agree. 16-5-209. We proof concerning offers of evidence she would have elicited from witnesses. Infor- provides pertinent Section proof mation elicited in these offers of part: to the effect that the version of the facts judge having jurisdiction “The of a court Moss, upon by related and relied Larsen offense, alleged upon affidavit prosecute, in his decision not to was inaccu- alleging filed with him the commission of rate. unjustified a crime and the refusal of the
Moody presented prosecuting attorney prosecute any po- information that a crime, person may require lice officer would have testified that Lar- for the sen told him that one prosecuting attorney appear reason he did not file charges explain was because was “a case of one him and refusal. If after a dirtbag shooting dirtbag.” another judge More- finds that the refusal by refusing accept from attorney to prosecuting arbitrary rebuttal. capricious excuse, he order concerning a of a witness prosecuting attorney to file informa- *3 as to material be contradicted issue prosecute may ap- case or tion and tends to fact circumstance which do
point special prosecutor to so... strengthen testimony. corroborate and his right to purpose, party For this has the statute, challenging party Under evi- contradict material call witnesses to strong even proof, the burden and has adversary. given for by dence a witness his not showing does 395, P. 274 Barry People, v. 29 Colo. 68 proof to shift the burden of (1902). (Colo. v. 675 300 Sandoval 1984). Here, Moody made a number of offers
proof,
43(c), including offers
see C.R.C.P.
testimony
police
of the two
officers
A.
investigation
who headed the
of Dowell’s
“hearing” is not defined
The word
death.
have
One of
officers would
of an ex
In the absence
never, contrary to
testified that: “Larsen
definition,
phrases
used
press
words
inquired
testimony,
offi-
direct
[the
Procedure,
the Colorado Code of Criminal
to
from Mr. Dowell
take a statement
cers]
(1986
Repl.Vol.
et seq., C.R.S.
hospital
still
he
in the
while
was
[and
according
8A),
must be construed
would
further
The officer
have
alive].”
governing
construction of stat
rules
con-
testified
was clear and
that: “[T]here
16-1-105(3),
utes. Section
run-
vincing
that Mr. Dowell was
evidence
8A).
rules mandate that
Repl.Vol.
Such
ning
get away
being
he
killed
to
while was
according
to
words
statutes be construed
other
would
by ...
The
officer
Moss.”
meaning. People
plain
ordinary
their
alleged char-
have
as to Larsen’s
testified
P.2d 918
v. District
dirtbag
the incident as “one
acterization of
dirtbag.”
shooting another
hearing presupposes
convening
of a
during
evidence
introduced
that
will be
apprised
Therefore,
court
[‘hearing’]
“The word
proceeding.
such
prepared
present
testi-
that
privilege to
contemplates
only the
contradicting
given
material
mony
evidence
being
matter
con-
present when the
That
would
Larsen.
present
one’s
sidered but
misled the
that Larsen
[also]
been
the effect
the same
contention
choosing
stating
court in
his reason
Brown,
argument.”
proof and
Brown
had
stating
he
that
409,
B. entitled to rebuttal er evidence, itself, constituted an abuse also asser We Barber, discretion. Lamm the trial court abused its discre- tion that (1977); with or in P.2d 538 sistent McNi conflict with the rules of chols, respects. some We must
presume that when
establishes a proceeding for which the
II.
apply,
will not
Moody next
contends
actions
provide adequate
will
practices
proce-
brought
are
stat-
govern
dures to
such a proceeding. Statu-
utory proceedings and that
the Colorado
tory procedures
practices
are less than
apply to such ac-
Rules of Civil Procedure
adequate
“provide
do not
a uni-
Therefore,
contends, the
tions.
she
fied, expedient, and economical means for
*4
denying
court erred in
to her a host of
resolving issues.” Air Pollution Control
procedural rights
privileges,
and
such as
Commission
193 Colo.
discovery
right
to
146,
III. In deter mining continuance, grant whether to furthermore, We, agree with trial should consider the circum that, the rules Moody’scontentions because case, particular weighing stances of the proceedings un procedure apply of civil moving party to a fair court erred in der against the result prejudice from request for failing grant her Farner, delay. supra; Butler v. Bithell v. so that a continuance failing grant (Colo. Corp., Western Care accomplished, and discovery could be App.1988). to consider failing to exercise Here, the trial court did not consider the extent to allow dis to what whether and Instead, circumstances of the case. sim- covery. ply found that no continuance for be because no could allowed dis- A. Thus, covery could allowed her. Although may, a trial court in its sound order constituted an abuse of its discretion, limit exercise of discretion. degree, Bond v. District see *5 pre-hearing discovery We conclude that Court, (Colo.1984), it is here, pursuant be should allowed the sought clearly shown that the matters procedure, rules of civil examination of for very narrow are relevant following: the court, discovery un- issue before (1) of should be prosecutor der the rules evidence considered the “[eliciting] facts making allowed to the extent of pros- the initial not to decision help dispose ecute, court of the necessary to including police reports; justice may require.” law matter as (2) prose- by the evidence not considered Nelson, 471 P.2d Hithe v. him; cutor but available still (3) prosecutor’s evidence of the motive faith, good of or lack or evidence which
B. may reasonably prosecutor’s rebut of faith. good claim We also with contention failing to exer- the trial court erred To hold that a must concerning cise whether to attorney’s prove prosecuting that the fail discovery. allow pursue from a cause ure to a case results unreasonable, that is unwarranted or with dis- failure of an official even ex is, itself, out limited of cretion vested him an abuse planation by prosecuting attorney is Barber, supra; v. discretion. See Lamm made, McNichols, v. rebuttal-evidence, render is to Here, the trial found itself without court preven Assembly’s General mechanism Moody to dis- power to allow undertake of such a hollow shell. Fur abuses failure to covery. We conclude thermore, consonant such a result is not by the discretion vested in it exercise the judicial sound administration. with See concerning rules v. Dis Air Pollution Control Commission grant a and whether to regard, at supra. And in this trict accom- continuance so that could something anticipated least one case has plish discovery of dis- constituted abuse remedy more from the statute when cretion. Tooley, warranted. Dohaish v. Cir.1982). (10th F.2d 934 C. grant deny continu- The decision IV.
ance
sound
is within
In our
this case demonstrates the
and will not be set aside absent
view
proceeding
importance
which the
abuse
that discretion. Butler
clear
Assembly
provided
General
in hibited from exceeding the limits of the
16-5-209.
It does call for the delicate
discretion entrusted to them. See
State
balance
recognized
which must be
whenev- Clark,
291 Or.
er
government
upon
one branch of
is called
Section 16-5-209 is a mechanism created
However,
to review another branch.
it also
part
as
recognizes
requirement
judi-
that the
Procedure,
Colorado Code of Criminal
ciary apply
procedural rights
which the
seq.,
(1986 Repl.Vol.
et
procedure grant
those
8A)
prevent
abuses
connection with
subject
actions
to those rules. See Hithe v.
prosecutorial
decision. The statute cre-
Nelson, supra.
persons
ates an avenue for
who believe a
By granting
procedural
minimum
re-
prosecuting attorney
pursuing
is not
a case
quirements,
important
we insure that this
diligence
petition
the district court
may properly
applied
remedial statute
to review the status of the case. Dohaish
by good-faith
petitioners and
the courts.
(10th
Tooley,
Cir.1982).
TURSI, J., dissents.
right
require
of the district court to
an
Judge
dissenting.
appearance
showing
TURSI
before it
and a
the
attorney
district
that his or her decision
respectfully
I
dissent.
arbitrary
capricious,
or
or without
disagree
majority’s
I
with the
conclusion
beyond
reasonable excuse. Matters
adversary
had a
to an
are,
here,
political
left to the
wisdom of
hearing under
attorney’s
constituency.
district
1A)
Repl.Vol.
and that it was error for the
deny
trial court to
her the
Section 16-5-209 is clear in
require-
its
present evidence.
specifically
ments.
It
limits the
explanation by
It also
A
attorney’s
prosecutorial
district
broad
provides
judicial remedy
the exclusive
capacity
discretion is rooted
his
as an
rectify improper
prosecute.
refusals
executive officer and in the doctrine of the
Hence,
separation
powers.
People
of
Rules of Civil Procedure do not
v. Dis-
Court,
(Colo.1981). apply.
Hansen,
trict
Therefore, acting tified court was refusing attorney’s explanation to hear the district within and an order for the district court as the trier motion to matter discovery could well been compelling fact. of discretion.
an abuse Therefore, record, including because the addition, charging deci- prosecutor’s affidavit presumed to be in accordance with is sion attorney, no of discre- district shows abuse law. ruling by the trial court prosecutor’s deci- A arbitrarily, had acted district overcome sion under § excuse capriciously, or without reasonable showing clear only upon a presumption I declining prosecute, would affirm convincing evidence that refusal disposition pro- this arbitrary capricious prosecute ceeding. Landis reasonable excuse. v. Far- (Colo.1984); ish, Sandoval convincing proof is “evidence
Clear stronger ‘preponderance of than a which is unmistakable the evidence’ and or substantial free from serious Koltnow, DiLeo v. doubt.” affidavit must An 613 P.2d FLORES, Flores, Marcella Mar- Martin satisfy introduce sufficient Flores, Flores, Tammy vin Lee discretionary proof burden Rumsey, Petitioners-Appellees, hearing may be held Moreover, hearing, at burden REVE- DEPARTMENT OF COLORADO attorney to shift the district does not NUE, COLORADO, TAX OF STATE the court that refusal explain before DIVISION; Tipton, *7 Director John ex- by reasonable justified Revenue; Davis, Department Di- Jim however, cuse; go his failure forward Division; Lujan, Tax Nestor rector of leave affiant’s ver- the evidence would Peloso, and Bob E. Hileman John allegations ified unrebutted. Sando- Revenue, Department Agents The affiant val Depart- Agents of the and Unnamed test the district attor- Revenue, Respondents-Appel- cross-examination, ment of credibility through ney’s lants. regard narrow issue to be only in but proceeding, and in a 16-5-209
determined 89CA1427. No. at accept additional evidence Appeals, lies the discretion of within Colorado IV. court. Div. Here, opportuni- was afforded 8, 1990. Nov. the district
ty to cross-examine record, it can- thoroughly. upon the Based its district abused
not be said accept additional refusing evidence. perceive any I error the court’s
Nor do motion to grant Moody’s refusal discovery. Moody’sargument
Finally, reject I would in finding the the trial court erred prosecute jus- attorney’s refusal to