People v. Gallegos

years burglary. sault and ruled the inad- 4½ for In Tacor- The district court grounds People, Colo., that the details of P.2d 1324 missible on the ante v. the were not distinctive or we that the date of other crimes held effective H.B. 1589 represent “signa- enough postponed July unusual the on March 1979to individual, Colo., Macias, were single People ture” of a fea- Accord 1979.6 Jones, Colo., tures common to most sexual and People assaults P.2d 584 merely (1981). Therefore, would demonstrate that there was district person committing more than correctly one sexual court sentenced un assaults in area. agree 16-11-304, (1978 We der sections C.R.S. 1973 properly 8) 16-11-309, district court the evi- Repl.Vol. excluded C.R.S. 1973 circumstances, (1981 Supp.), sentencing provisions dence. The similar acts and together, support finding taken do not at that time. effect probably that the person same was involved Judgment of conviction sentence af- cases, therefore, in all the the threshold firmed. relevancy standard for such evidence was

not met. the evidence

Even if were relevant standard,

under the Bueno a trial court

exclude evidence if probative relevant “its substantially by

value is outweighed

danger prejudice, unfair confusion

issues, misleading jury, or or consid Colorado, PEOPLE of the State time, delay, erations of undue waste of Plaintiff-Appellee, presentation needless evi cumulative Bueno, dence.” 403. C.R.E.

supra. Although the trial did court GALLEGOS, Richard Gene reach question potential confusion Defendant-Appellant. delay undue caused introduction of No. 80SA252. testimony concerning witness identifica cases, tions in nine other sexual assault we Colorado, Court of agree with the testi such En Banc. mony would tend confuse the issues in April 26, 1982. single before jury unduly case delay the trial.

III. defendant,

Finally, the was sen who

tenced on May to a term of 30 to 35

years first-degree for the sexual assault and

15 to years aggravated burglary,5

argues was entitled that he to be sentenced

under the first version of House Bill

which April he went into contends effect Under first Bill House penalties maximum for the defendant’s offenses were 1 n years for the sexual as- September presumptive sentencing pres- 5. On the district court 6. The scheme is granted 18-1-105, ently the defendant’s motion to reconsider codified at section C.R.S. 1973 (1981 Supp.). sentence and reduced his sentence for first-de- gree years sexual assault to 20 to 24 and for aggravated robbery years. to 12 to 16 MacFarlane, Gen., D. Atty.

J. Richard F. Hennessey, Gen., Deputy Atty. Mary J. Gen., Phelan, Mullarkey, Sol. Maureen Asst. Gen., Denver, Atty. plaintiff-appellee. for Bieda, Vista, Michael L. Monte A. Frank Gallegos, Paul, Minn., defendant-ap- St. pellant. Walta, Gregory

J. De- Colo. State Public fender, England, Deputy James Public State Defender, Denver, for amicus curiae Colora- do State Public Defender. Culkin, Denver,

Francis K. for amicus Foundation, curiae Civil American Liberties Inc.

DUBOFSKY, Justice. defendant, Gallegos, Richard Gene appeals County his convictions in the Mesa second-degree District Court sexual as- sault under section C.R.S.1973 18-3— (1978 Repl.Vol. 8); attempted first-degree sexual assault under sections 18-3-402 and 18-2-101, (1978 8); Repl.Vol. C.R.S.1973 imprisonment 18-3-303, false under section (1978 8); Repl.Vol. being C.R.S.1973 and of an habitual criminal under section 16-13— 101(2), (1978 8; Repl.Vol. C.R.S.1973 cur- rent version in 1981 Supp.).1 He sen- was challenges constitutionality 1. This case was transferred from the of the habitual Appeals 13-4-110(1)(a) statute, 16-13-101(2), under sections 13- criminal section C.R.S. 4-102(l)(b), C.R.S.1973 because tenced to two terms of life im- The defendant’s concurrent version of the incident prisonment penitentiary.2 in the state victim was that the had asked him to take trial grounds appeal pair for his are that her to a buy dropping shoes before denying discovery court erred in him of her off at work. When the defendant re- portions cab,” of a letter written the victim to fused to be her “taxi the victim be- prosecuting attorney began kicking and that testimo- came violent and the defend- stereo, investigating police ny requiring physically of an officer was ant’s him to re- improperly admitted. He also contends jury strain her. The found the defendant guilty charged. that the habitual criminal statute is uncon- disagree stitutional. We and affirm the I. convictions.

defendant’s trial, attorney Before the district notified offered April On attorney he had re- defendant’s victim, walking along who ride to the victim, ceived a letter from the who had way business route 70 in Palisade on assault, moved out of after the Colorado victim ac- work in Grand Junction. The stating her current address. The defendant cepted, drove toward and the defendant discovery moved for of the letter under Junction he off on Grand until turned I(a)(l)(I)3, alleging that it Crim.P. go to deserted side road to the bathroom. contain the hear- relevant information. At car, he When the defendant returned to the motion, ing discovery on the the district grabbed began fondling her the victim and attorney following portion read the of the holding while tightly breasts around victim’s letter into the record: struggled, The victim kicked the car neck. Hello, puzzled. Mr. Farina. I am I real- open repeatedly door honked the car’s ly myself don’t know what to I do. found managed horn. The defendant to insert his place to in with no live Grand Junction. finger vagina in the victim’s before another my I moved back to Ritzville to mom’s. I pulled up vehicle the defendant’s behind a house have it. I found rented vehicle, car. At the arrival of the other get away really don’t want to let him to defendant desisted and drove Grand he’s done. But I don’t know with what stopped Junction. When he the car at a red going I’m how I’m to be there the 20th. out, light, jumped the victim took down the way on welfare and haven’t know [sic] immediately car’s license number and tele- any money. earn phoned police nearby gas from a sta- reading the investigator attorney omitted police tion. The who inter- district letter, concluding of the which he shortly viewed the victim after the attack sentences personal he related to a matter which testified that she had red marks on her neck said exculpatory. was The district underpants. and throat and torn didn’t think 8; felony (1978 Repl.Vol. of each of the sexual assault counts. current version in 1981 Supp.). Therefore, legality of the we do not address the sentences, multiple or that convictions but note charged 2. The defendant was with and convict- may challenge them under assault, attempted first-degree ed of second-degree sexual Crim.P. assault, impris- sexual and false Subsequently, single onment for a incident. part: (a)(l)(I) pertinent 16 I states in 3. Crim.P. imposed the trial court concurrent life sen- attorney prosecuting upon request (1) [T]he attempted tences gree first-de- for the convictions of to the defense counsel shall disclose of the second-degree sexual assault and sexual following assault, material counsel the defense information and a term of six months for the false possession imprisonment or which is in the The defendant did conviction. attorney: prosecuting challenge appeal propriety of the not or control trial on persons attempted the convictions for both first-de- The names and addresses gree second-degree prosecuting attorney sexual assault and sexual intends whom the case, trial, hearing assault on the see section to- facts of this call as witnesses at gether 18-1-408, C.R.S.1973; question he neither did recorded with relevant written or their imposition life sentences un- of concurrent . statements... der the habitual criminal act for the convictions rule, mandatory. letter to the court such attorney produced the disclosure There- inspection. fore, ruled for in camera court sole issue on review is whether the portion was that the omitted not relevant victim’s statement attorney district compel and refused to dis- she months exculpatory pregnant that was five was covery. relevant. of the portion The omitted letter reads: as used in Crim.P. Relevance [pregnancy]. my “In fifth month P.G. I(a)(l)(I) a broad embodies standard dis write me I’m due Feb. 4. Please and tell closure. See 2 A.B.A. for Crimi Standards you.” what to do! Thank The offense (2d 1980). nal 11-2.1 ed. A Justice witness and the April occurred letter statement, relevant, to be need not contain which the victim stated she was five trial, long information admissible at as as postmarked pregnant months was October the contents of the statement are relevant

4, 1978, from which could be it concluded Generally, to the conduct of defense. conception approximately had occurred appropriate defense counsel is the party to This, one month after the offense. make that determination. See A.B.A. Stan fact place during intercourse took dards, supra, Commentary at 11.15. As we assault, led attorney the district and the Smith, noted court to conclude information (1974), irrelevant. certain cases even an in camera hear- imposes defense, ing The defendant did learn the unfairness on the contents can portion of the until defense determine what will withheld letter helpful be material and reading Attorney in the its case. See it General’s brief briefs, Alderman v. United In his the Court. 89 S.Ct. 22 L.Ed.2d 176. argues portion the of letter that excised the should been disclosedunder have Crim.P. at 524 P.2d 611. I(a)(l)(I) regardless its of contents because Nevertheless, the term “relevant” provision that calls disclosure for to defense I(a)(l)(I) in used Crim.P. 16 is more than the counsel of “relevant written or recorded surplusage; the mere is not witnesses, statements” of and it is a defense obliged every in case to the disclose entire function determine the wit- relevance of of its In People McKnight, contents file. v. argument, ness statements. At after learn- Colo., (1981), 626 P.2d 678 we contrasted the ing portion, the of contents the excised the language I(a)(l)(I) of Crim.P. 16 with that specifically defendant’s attorney asserted 1(a)(1)(H), requires of Crim.P. which dis that excised portion may the have been “Any of closure written or recorded state credibility relevant to the victim’s as a wit- ments and the substance any of oral state ” ness pregnant in that the victim was not the by ments made ... accused. We appeared February when she trial on at 27 pointed out subparagraph (II) that contains through Although March vic- requirement relevancy no of and thus man letter, 4,” tim in her “I’m stated due Feb. dates broader disclosure of statements appear logical and this would ex- most by an by made accused than is mandated planation appearing pregnant her not at (I) subparagraph respect with to witness trial, argued defense counsel nevertheless statements. We described the standard of preg- that about being she have lied disclosure for an accused’s statements as nant in attorney. her letter to the district “every encompassing by statement made of upon

Disclosure relevant statements the accused . . . any way which relates in longer defense motion is discretionary charges the series of events from which the ” with the prior against trial court as was the case to pending the accused arose. . . . the adoption of present (emphasis Crim.P. 16. See original). People Smith, v. then, Clearly Colo. 524 P.2d 607 16 I(a)(l)(I) Crim.P. does not (1974); People Court, v. District require of every disclosure witness state 469 P.2d 732 Under the current ment which relates to the giving events rise (b) charges, specific to those state- of criminal Evidence instances of activity showing case. sexual to the issues in the the source or ori- ments relevant gin semen, disease, pregnancy, of any or Evi Rules of Under Colorado similar of sexual intercourse of- dence, is the issue relevance resolved showing for the purpose fered that the determining whether the evidence tends to charged or act acts were or were not any is make the existence of fact committed by the defendant. consequence to the determination of the allegation there is no Since vic- probable action or less more than it would pregnancy tim’s resulted from the sexual be without 401.4 evidence. C.R.E. assault, 18-3-407(l)(b), section which ex- Here, preg the fact that the victim became empts general presumption from the of ir- approximately nant month one after showing relevance “evidence ... the source prove assault not disprove would tend to origin pregnancy .. . ... offered for any consequence fact is of to the de purpose showing that the act or acts guilt fendant’s or innocence. The victim’s charged were or were not committed subsequent bearing pregnancy had no defendant,” inapplicable. also See charged, penetration acts since not was Martinez, Colo., alleged occurred, or to have on the defend defendant contends that even if defense, ant’s which was a denial that he subsequent pregnan fact the victim’s charged. committed the offenses cy itself, admissible evidence it Neither would evidence of vic the discovery have led to of admissi tim’s subsequent pregnancy be admissible impeachment ble evidence useful for of the impeach credibility as a In witness. credibility, key which victim’s was a issue. past, defense counsel in sexual'assault Thus, argues, nondisclosure case was accorded wide latitude in cross-ex still violated abridged Crim.P. and also prosecutrix. amining the Struna process right his due to a fair trial under Brady Maryland, 373 3A Wigmore, (Rev. J. Evidence ed. §.929a progeny., and its However, 1970). rejection the more modern Brady Maryland, supra, the United of the view that all evidence of sexual States Court held that the due probative behavior is of a victim’s credibili process clause of Fifth the Amendment witness, ty as a recognition the that requires prosecu the U. S. Constitution of such may introduction evidence confuse tion to disclose evidence favorable to the jury, prejudice prosecution’s case upon request by defendant defense counsel. discourage victims reporting from Brady process right applies due tri prosecuting sexual led assaults to the enact als in state courts under the Fourteenth ment in 1975 of “rape Colorado’s shield” Agurs, Amendment. United States v. 427 statute, 18-3-407, (1978 section C.R.S.1973 97, 2392, (1976). 342 96 S.Ct. 49 L.Ed.2d Repl.Vol. 8). McKenna, v. People 196 Smith, People supra, quoted In v. we with 367, (1978). Colo. 585 P.2d provides: 275 It approval Justice Fortas’ concurrence in specific Evidence of instances of 66, Maryland, Giles v. State of 386 U.S. 87 prior subsequent victim’s con- sexual 793, (1967), requiring 17 737 S.Ct. L.Ed.2d duct, opinion evidence of the victim’s sex- only compel discovery that a court conduct, ual reputation evidence any favorable evidence pre- the victim’s sexual conduct shall be importance may “which ... be material except: sumed to be irrelevant regardless to the of whether it defense — (a) prior testimony Evidence of the victim’s relates to which the state has ” actor; subsequent given sexual conduct with the to be at trial . . caused . . Colo., Evidence, (1981); Jackson, 4. 634 The Colorado Rules af- P.2d 26 Bush 191 enacted v. case, 249, existing (1976). ter the trial 552 509 codified the Colo. P.2d Martinez, People relevance standard. See v. 926 100, quoting at 87 victim’s at 611 386 U.S. S.Ct. at statement that she was five months Accord, Thatcher, Colo., People 4,1978,

810. pregnant as of October is consistent 760, (1981). P.2d pregnancy having with her come to term prior to trial at the February. end of Like Brady Cases since have mandated rever- wise, we are unconvinced that the victim’s sal on the basis of failure disclose certain might statement have led to other informa information to the defendant where People impeachment. tion useful for In the information have affected the Thatcher, supra, we held that where infor the trial. United States v. outcome of possession prosecution mation of the Agurs, supra; Illinois, Moore v. 408 U.S. little, anything “would have added if 786, 2562, (1972). S.Ct. defense counsel’s information and effective Court, See Goodwin v. District 6, 197 Colo. cross-examination,” during ness Giglio failure to v. United (1979). 588 P.2d 874 In disclose the information was harmless error (1972), beyond L.Ed.2!d 104 the Court a reasonable doubt. noted that 638 P.2d at process case, due “automatically require does not In this vigorous defense counsel a new trial whenever combing ly ‘a of the cross-examined the victim with the aim prosecutor’s files after the trial has dis- impeaching her credibility. The knowl closed evidence possibly useful to the de- edge that she had informed the district likely changed fense but not to have attorney five previously months she Id. at verdict ....’” at 766. pregnant, inadmissible, itself clearly cannot have benefitted the defendant’s at Here, looking possible at usefulness torney in his cross-examination. We con of the victim’s statement in the most ex clude that process defendant’s due pansive light possible, we cannot conclude rights abridged were not by his lack of was, it or would have led to the dis access to the concerning victim’s statement of, covery material information not already pregnancy.5 known to the defendant. The defendant has no basis for his contention that II. victim lying being have been about pregnant other than that she was not obvi next contends ously pregnant case, any trial. In admitting district court erred in certain approval 5. We E.g., note the similarities between the instant on a number of occasions. Maryland, case 66, Court, and Giles v. State of 386 U.S. Goodwin v. District 197 Colo. 87 S.Ct. (1979); People Smith, L.Ed.2d 737 185 Colo. Giles, defendants, (1974); Walker, convicted of sexual as- 524 P.2d 607 girl, alleged sault of an adolescent denial of due 504 P.2d 1098 Cheatwood v. process because the failed to dis- evidence, close to defense counsel known to the are, however, important There differences be- prosecution, concerning incidents which oc- tween the evidence at issue in the instant case curred about one month after the crime pointed out, and in Giles. As Justice Fortas charged. Apparently, the victim had sexual although concerning implications the of the information party, rape relations with two men at a filed subsequent the victim’s sexual en- charges against them, dropped and then the highly debatable, counter were the information charges. Within hours of the incident at the that the victim had had intercourse with two party, attempted the victim suicide and was consent, suggesting men in circumstances and hospitalized psychiatric examination. The lodged rape charges then and later retracted testimony paramount impor- victim’s was of against them could have been material to the convicting plurali- tance in the defendant. The case, especially princi- defendants’ since their ty opinion in Giles did not address the issues pal Similarly, defense was consent. the vic- by evidence, suppressed raised the instead dis- attempt hospitalization might tim’s suicide and posing prosecu- of the case on the issue of the bearing credibility have a had on her as a allowing testimony tion’s bad faith in false to case, witness. In the instant the evidence con- go concurring opinion, uncorrected. In his Jus- cerning pregnancy the victim’s had no similar supression tice Fortas wrote that the of the indicia of relevance. It could not have been concerning evidence incidents which occurred impeachment purposes used for and did not after the assault was a violation of the defend- indirectly theory bear even on the defendant’s process rights. ants’ quot- due This Court has of defense. ed Justice Fortas’ concurrence in with Giles Smith, large a made at H. L. a served number of statements trial sexual assault victims, County Department Mesa Sheriff’s investi- Smith stated: gator. It was to whom the victim Smith Basically, very typical was of [the victim] reported first the assault. When asked rape every victim that a victim she— was his was whether it conclusion that this of type differently. handles this situation report claim, legitimate a false or a Smith of, call, was what I kind would a [She] testified, “My impressions first were that it this, giggle,, felt, nervous and I was the legitimate report.” was a The defendant pres- she to way trying was handle object to testimony did not this at trial or type from this of event. sure motion, his now raise it in new trial wasn’t, me, laughing It to a matter to alleges impermissible hearsay that it was thought thing funny. she where was testimony introduced to bolster victim’s was, also, me, This she had advised and plain its constitutes error. admission. courtroom, time to be in a first ever and nervous, giggles she was and these little cases, testimony In sexual assault they a funny-type giggle; weren’t tending prove promptness to of the just an were emotional reaction like some complaint police victim’s is admissible reactions, people have like I do nervous People, corroboration evidence. Padilla v. I my when move hands around while I (1964); People Colo. P.2d 741 talking. impression am was the This Lowe, Colo.App. P.2d got giggles. I from these (1977). However, police permissible testi mony object restricted mere did is to the fact of not this complaint encompass testimony not the de at trial or raise it in new trial his tails to the investigating related officer. He now contends that admis motion. its People Montague, plain opin P.2d an sion was error because it was Lowe, supra. qualified expert Like aby ion witness not as an wise, clearly improper it is an impermissibly to admit and because it bolstered the investigating attesting testimony credibility officer’s victim’s as a witness. The record accuracy credibility qualified of witness was not as an indicates Smith Nevertheless, However, expert. opin statements. in the context under C.R.E. trial, qualified testimony by admission Smith’s testimo ion a witness not as ny thought report that he legitimate expert an if it admissible is: plain does not constitute error under (a) rationally perception on the based 52(b). Where, here, jury Crim.P. had (b) helpful the witness and clear opportunity an to evaluate the extensive understanding testimony of [the witness’] victim, of the testimony credibility whose of a fact in issue. or the determination subject to impeachment through cross- Evidence, at 22-26 11§ See McCormick counsel, examination defense offi 1972). adoption (2d ed. Prior cer’s single im statement about his “first we in Elliott v. C.R.E. held pressions” legitimacy report of the of the does rise plain to the level of error personally a witness observed “when has 52(b). under Crim.P. another, activity of and sum- physical thereof,” victim, cross-examining impressions his sensory defense marizes having counsel alluded giggled to her on the are admissible. the witness’ conclusions hearing witness preliminary sufficiency stand at the to establish the implied laughed gig- qualifications knowledge that she witness had of a gled throughout hearing physical express opinion and an based on considered “big joke.” it a implication, question To this has is a for the rebut facts he observed court, questioned subject to unless Smith concern- trial reversal Colo., ing impression Hillman, his clearly of the victim’s erroneous. Wise v. emotional Torres, 364, during preliminary state hearing (1981); testi- 367 Atencio v. 625 P.2d mony. 507, (1963). After ob- 659 testifying that he 153 Colo. had The first contention is testifying the victim defendant’s observed

Smith violates the habitual criminal statute hearing. At trial preliminary he process provides opportu due because it sensory on his stated a conclusion based presentation nity for and consideration of hearing impressions preliminary in from mitigating defendant con factors. The prior knowledge conjunction with his and opportunity required tends that such an experience. based his conclu That Smith the United States Court deci part experience police sion in on his as a invalidating penalty sions state death stat testimony inad officer does not render his preclude judge jury utes which and Hillman, supra. missible. Wise v. factor, considering mitigating from as a sought impeach Since defense counsel any aspect of a defendant’s character or credibility through ques- his victim’s any record and of the circumstances cross-examination, tions on testimo- Smith’s proffers the offense that ny, credibility, intended to rehabilitate her as a for than basis a sentence less death. appropriate, im- and did not constitute Ohio, (Emphasis original.) in Lockett v. permissible bolstering. Vigil, Pine v. See 586, 604, 98 57 L.Ed.2d U.S. S.Ct. 601, (1970), Colo.App. 480 P.2d 868 rev’d 262, Texas, (1978); Jurek v. 384, grounds, other 176 Colo. 490 P.2d 934. 2950,49 (1976). L.Ed.2d 924 We relied principle on the enunciated in Lockett and Court, People Jurek in v. District Colo. III. (1978), 586 P.2d 31 to declare Colorado’s Finally, con we consider the defendant’s be penalty death statute unconstitutional tentions that Colorado’s habitual criminal improperly cause it limited introduction of statute, 16-13-101(2), section C.R.S.1973 mitigating circumstances in those cases (1978 8; Repl.Vol. version in 1981 current where inno the defendant maintained his Supp.),6 process separation violates due and cence. powers and Col under the United States Gutierrez, However, supra, People in outset, orado At the we em Constitutions. opportunity we made it clear that phasize scope inquiry. the narrow of our present mitigating and consider factors is prior cases, upheld we the habitual criminal constitutionally mandated where the against challenges statute based on a num penalty death is involved. There we stated: grounds including ber of the constitutional Eighth and Fourteenth Amendments guarantees process, equal protection, due require United Constitution States protection against and unusual cruel given that consideration be to evidence of punishment. Gutierrez, Colo., mitigating determining wheth- factors Larson, (1981); People 622 P.2d 547 imposed er a death sentence is to be (1977); People 572 P.2d 815 Ohio, commission of a crime. Lockett v. Bergstrom, 190 Colo. 544 P.2d 396 (1977); Thomas, People v. 189 Colo. Court, (1978); People v. District 196 Colo. P.2d 387 Vigil v. are 586 P.2d 31 Those cases We decline to predicate on the based the death qualitatively any readdress the issues resolved in these cases. penalty differs from state, felony, 16-13-101(2), (1978 Repl. 6. Section would be a shall be ad- C.R.S.1973 8), “big” provision, judged pun- Vol. criminal habitual an habitual criminal and shall be provides pertinent part: peniten- by imprisonment ished tiary in the state life. for the term of his or her natural (2) Every person convicted in this state of jury had been found that any felony, previ- who has been three times felonies, previous degree first convicted of four criminal ously convicted, upon charges separately degree burglary, trespass, as- second brought tried, either in or else- this state deadly weapon, burglary, with a where, sault convicted him of or, any felony of a under the laws of being state, States, an habitual criminal any other the United territo- 16-13-101(2), subject ry subject to a man- jurisdiction under section datory of the United which, life sentence. of a crime if within committed other sentence severity in its and irrevo- charge discretion to eligible offenders Ohio, cability. Lockett supra; People prosecution under the statute. Court, supra. v. District They have not separation The powers of doctrine is applied by been the United States Su- principle founded on the power that “the preme by Court or any court in other upon legislature conferred to make laws contexts. More particularly, notwith- delegated cannot by department be standing long history challenges to any body other authority.” or Colorado habitual criminal statutes in the United Case, Anti-Discrimination Commission v. Supreme here, States Court and such a 151 Colo. 380 P.2d requirement adopted has never been or Nevertheless, long recognized it has been suggested previously. persuaded We are that both the United States and Colorado uniquely grave nature of the legislative Constitutions allow the branch of penalty death wellspring is the from government which flows the require- constitutional necessary flexibility resources of . . . ment mitigating factors be con- perform laying its function in down sentencing sidered in notwithstanding the policies establishing standards, while number or seriousness of a defendant’s leaving to selected instrumentalities the prior offenses. making of pre- subordinate rules within 622 P.2d at 556. scribed limits and the determination of The challenge defendant’s in Gutierrez facts to policy which the by as declared prohibition based on the constitutional legislature apply. is to against cruel punishment, and unusual Refining Panama Ryan, Co. v. 293 U.S. suggested different result is because the 421, 79 L.Ed. 446 grounds defendant in this case challenge his In Colorado Anti-Discrimination Commis- process. on due Supreme recog- Case, sion supra, we noted that Ohio, nized in supra, Lockett v. that “in general assembly “may delegate cases, noncapital practice the established law; power to make a but it may dele- individualized sentences rests not on consti- gate power to determine some fact or a commands, tutional public policy but on en- law, things upon state of which the as 604-05, acted into statutes.” 438 atU.S. prescribed, depends.” Sapero v. State Where, here, 2964. the General Examiners, Board of Medical 90 Colo. Assembly has mandated a life sentence for [1932]; Heron, 11 P.2d Prouty an individual who has by “demonstrated his 255 P.2d 755 [1953]. repeated criminal actions that he is unable 380 P.2d at 43. or unwilling to by abide those limitations on conduct legislature which the has found legislative delegation Such a necessary appropriate functioning power agency to an administrative is valid of a society,” People Gutierrez, civilized legislature if the provided has suffi supra, 622 P.2d at public intended cient guide agency’s standards to exer policy clear, is and no constitutional due power. State, cise of that Elizondo v. process right abridged. (1977) (and therein). challenge provide defendant’s second cases cited Failure to suf habitual legislative criminal statute is that ficient standards renders a dele it violates separation powers principles gation power Refining embodied in invalid. Panama U.S.Const. Amend. XIV Ryan, supra. Refining, and Colo.Const. Co. v. In Panama II, V, I,8 Art. Sec. 257 and Art. Sec. the United States Court invalida delegating to attorney the district congressional delegation unlimited ted a to the Presi- II, V, provides: person provides: 7. legislative pow- Art. Sec. 25 “No shall be Art. Sec. 1 “The deprived life, liberty property general without due er of the state shall be vested in the process of assembly law.” consisting of a senate and house of representatives, peo- both be elected ple. ...” 930 factors, powers regulate to inter- conduct and numerous other

dent of certain wheth- shipment Congress prosecute state of oil because had er to an individual the stat- under statutes, policy, provided any neither nor ute. Like other criminal the ha- stated a guide bitual is specific to the President. criminal statute couched in manda- standards tory uniformly terms but not enforced held that to leave “the matter to against eligible rule, every prose- offender. The President without standard to cutor’s under the crimi- discretion habitual pleased,” sepa- be dealt with as he violated bring charges against eligible nal statute to 418, powers. ration of Id. 293 55 U.S. indistinguishable offenders is from the dis- Poultry at 247. also S.Ct. See Schechter prosecutor cretion accorded a in all criminal Corp. 495, v. United 295 55 U.S. prosecutions. 837, S.Ct. 79 L.Ed. 1570 Carter v. Co., 855, Carter 298 56 Coal U.S. S.Ct. long recognized It has been (1936). delegation 80 L.Ed. 1160 Limits on prosecutors may uniquely criminal exercise legislative power are founded on the offenders, charging broad discretion in system, legis- rationale that in a democratic that this broad discretion does not exceed lative by decisions must be made permissible delegated power of the ex government represents branch of which ecutive. As the United States popular will and is accountable to it. L. Hayes, Court stated in Bordenkircher v. Tribe, Law, American Constitutional (1978). Casey People, 5-17 at 286 § v. (1978): 139 Colo. P.2d system, long prosecutor In our so as the argues that the probable discretion has cause to believe that prosecutor deciding accorded the by whether accused committed an offense defined statute, charge eligible not to an the decision offender under whether or not to prosecute, charge the habitual criminal statute and what to file or constitutes an bring grand impermissible delegation legislative jury generally before rests power entirely define in his discretion. to criminal conduct.9 If the Within the lim- legislature’s delegated its set pros- constitutionally habitual criminal statute to offenses, power chargeable ecutors the to define valid definition of criminal con- duct “the conscious separation selectivity then it run afoul of exercise of some of powers in enforcement is limitations. As we stated in not in itself a federal Ca- sey v. long 139 Colo. constitutional violation” so “the (1959),“Only legislature may deliberately selection was declare an based [not] upon unjustifiable act to legislature be a crime.” The an standard such as may not race, delegate religion power arbitrary this to or other classifica- administrative offi- cials, Oyler Boles, “delegate nor it tion.” any adminis- [82 trative 7 L.Ed.2d agency authority ‘carte blanche’ 446]. impose penalties sanctions or for violation Id. at 98 S.Ct. at 668. portion of a substantive statute.” discretionary power justi- This broad Colorado Anti-Discrimination Commission preserve flexibility fied the need to Case, supra, 380 P.2d at 43. See Elizondo Breitel, freedom of action. See Control in State, supra. Enforcement, Criminal Law 27 U.Chi.L. However, prosecutor does not define Rev. In Elizondo v. being offense of an State, habitual criminal. supra, recognized frequent we Rather, his role is to evaluate the conduct necessity, context, even in the non-criminal to'decide, an given offender and preserving flexibility, this of stating: 16-11-309, separation powers (1978 9. A Repl. related issue is to section C.R.S.1973 8; imper- whether the habitual criminal Supp.), statute Vol. current version in 1981 which missibly delegates prosecutor judicial mandates an enhanced sentence for crimes of responsibility impose dispositive sentence. In violence. We find Childs of this Childs, Jr., respect issue with to the habitual criminal stat- rejected argument we brought respect with ute as well. power with the opinion. Where the to be exercised relates remainder of the my view, police regulations power, process rights under the defendant’s due abridged were not his of impracticable rigid lack access to and it is to fix stan- relating pregnan- victim’s statement to destroying dards without the flexibility cy. suppress Since the did not necessary for administrative officials to defense, evidence favorable to the but made legislative will, carry out we have court, the information known to the approved providing only statutes rather Brady constitutional mandates of v. Mary- general broad for standards adminis- land, 83, 1194, 373 83 U.S. S.Ct. 10 L.Ed.2d trative action. (1963). 215 Giles Maryland, v. 386 U.S. 570 flexibility P.2d at 520. The need for is 66, 793, 87 S.Ct. 17 L.Ed.2d 737 were uniquely present in prosecutions criminal in met. The in its entirety letter should have light affecting of the numerous factors counsel, been made available to defense prosecute decision and the whether limit- was, the error my opinion, in harmless. ed administering resources available for compelling discovery The aim of of evi- Breitel, justice. criminal See Control in dence in surprise a criminal case is to avoid Enforcement, supra. Criminal Law guarantee and to that the has a accused fair course, Of as the only trial. Reversal mandated where the recognized Hayes, in Bordenkircher v. su might undisclosed information have affect- pra, though [prosecutorial] “broad discre ed the People outcome the trial. v. be, undoubtedly tion there are consti Colo., Thatcher, (1981). upon tutional its 434 limits exercise.” U.S. 97, Agurs, also v. United States 427 U.S. 96 365, at Certainly, proof 98 at 668. S.Ct. 2392, (1976); S.Ct. Moore v. charging upon that decisions were based an Illinois, 786, 2562, 408 U.S. 92 33 S.Ct. unjustifiable standard such as race or reli (1972). L.Ed.2d 706 The failure order gion support would a constitutional chal discovery portion of the omitted the let- lenge Boles, Oyler to such discretion. 368 not, my opinion, ter in could this case in 448, 501, (1962). U.S. 82 7 446 S.Ct. L.Ed.2d have affected the outcome trial. Davis, See K. Discretionary Justice: A Pre occurred, Since constitutional violation (1969). liminary Inquiry The defendant was, view, my the trial error court’s in allegation prosecution’s makes no California, Chapman harmless. Cf. decision to charges file habitual criminal in 824, U.S. L.Ed.2d this case based are on such an unconstitu Colo., (1981). Myrick, tional classification. Given the traditional require The facts case do in this ly by prosecutors broad discretion exercised the case to the court be remanded district offenders, in charging criminal the discre evidentiary hearing. for an tion allowed under the habitual criminal statute does not constitute an unlawful del Justice, QUINN, dissenting: egation legislative power. We determine respectfully I dissent from I of the Part the defendant’s constitutional chal opinion, court’s which holds that reversible lenges statute, to the habitual criminal sec denying error did not occur in the defend- 16-13-101(2), tion are without merit. portion ant access to of the letter victim’s attorney. my view the

Judgment district affirmed. was no portion excluded the letter less ERICKSON, J., specially concurs. discovery purposes under relevant for were parts Crim.P. 16 which dis- than QUINN, J., dissents. and, reason, believe the closed I ERICKSON, Justice, specially concur- denying trial court of the erred disclosure ring: procedure entirety. proper letter in its The I part evidentiary hearing concur with the result reached in I is to an remand for majority opinion except ruling of the consti- discovery as to the whether the court’s interpretation prejudicial of Crim.P. and concur tuted harmless error. judgment, sup- but in our view the task is too in this case did not prosecutor margin favorable to the defense and for error too

press complex, and the process due claim under thereby implicate a great, rely wholly on the in camera 83 S.Ct. Brady Maryland, U.S. judgment identify of the trial court does the Nor 10 L.Ed.2d records which have contrib- those prosecu- posture involve present case in its case.” 394 uted to Government’s testimony, perjured torial tolerance at 22 L.Ed.2d at 192. Giglio present v. United of Alderman is that in some lesson L.Ed.2d 104 92 S.Ct. cases defense counsel can determine Rather, prosecutor in this case disclosed helpful to what is material and the defend- to the court for an in victim’s letter Smith, People v. ant’s case. which camera review. It was the court (1974). It is not for us in this discovery to defendant because denied speculate case whether and in what man- to portion it of the letter believed the excised might ner defense counsel have used exculpatory. was neither relevant nor so portion relating of the statement doing applied unduly the court an restric- impeach pregnancy witness’ to her credibili- tive to standard of disclosure a defendant. ty. point It is sufficient to if the out that I, 16(a)(l)(I), requires the Crim.P. Part regarding excised statement the witness’ to to disclose defense counsel false, pregnancy was indeed defense counsel the relevant written or recorded statements arguably might have used the false state- of prosecuting attorney witnesses whom the impeach credibility ment to the witness’ intends to call at trial. A witness’ state- trial. directly ment need not to the critical relate “It is the essence of a fair trial question nor elements of the crime be given the cross-ex- reasonable latitude be expressly exculpatory qualify to for dis- aminer, though even he is unable to state Often, covery impeach- under Crim.P. 16. to the court what facts a reasonable large play ment evidence will as a role in might develop. Preju- cross-examination determining of a trial as evi- the outcome opportu- dice ensues from a denial of the dence which is either substantive or excul- nity place proper to the witness in [her] patory Maryland, in character. Giles v. setting put weight and testi- [her] (1967). 17 L.Ed.2d 737 S.Ct. test, mony credibility to with- a [her] States, In Alderman v. United 394 U.S. jury fairly appraise out which the cannot (1969), L.Ed.2d say prejudice To them.... can be rejected United States only by showing established that cross- government’s suggestion that records of examination, pursued, if would necessari- electronic surveillance should be screened in brought tending ly have out facts to dis- judge camera the trial to determine chief, testimony deny credit the is to a arguable govern- their connection with the right withdraw substantial one of the ordering ment’s case before their disclosure safeguards essential to a fair trial.” Al- accused, cogently to an observed: 687, 692, ford v. United phrase, “An apparently innocent a chance 51 S.Ct. 75 L.Ed. remark, appears a reference to what Illinois, See also Smith v. 390 U.S. event, be a person identity neutral (1968); People of a caller or the individual on the other Colo., Page, If the

end of telephone, or even the manner of true, statement was the defendant never- speaking using special words have significance theless be able to demonstrate how to one who knows the more intimate facts of such information would led to the an accused’s life. And have yet that may wholly discovery bearing information be color- of evidence on the sub- less and meaning devoid of stantive elements of the offense or to one less on acquainted well credibility. Maryland, with all relevant circum- witness’ See Giles v. stance. Unavoidably, supra. this is a matter of

Where, here, case as turned credibility of witnesses PUBLIC COMPANY SERVICE OF deprived any opportunity was whatever Slope COLORADO and Western portion Company, Appellants, review the excised of the letter Gas until the People filed their brief with this court, simply inadequate record The PUBLIC UTILITIES COMMISSION preju evaluate whether the COLORADO, Edythe OF the STATE OF diced pretrial discovery the denial of Miller, S. Sanders G. Arnold and Daniel the entire contents of the witness’ letter. Muse, Commissioners, Greeley E. Gas The proper procedure under these circum Company, Company, Citizens Utilities is to stances remand the case to the trial Company, Kansas-Nebraska Natural Gas evidentiary hearing court for an on the Rocky Co., Inc., Gas Mountain Natural discovery issue whether the denial of consti Institute, Peoples Gas Research Natural tuted If harmless error. the trial court Division of Gas Northern Natural Gas finds that the failure order discovery Company, Colorado Interstate Gas Com portion the omitted letter had pany, Company, Salida Gas Service Ann likely trial, effect on the outcome of City Springs, Caldwell and Colorado evaluated in the context of the entire rec Colorado, Appellees. ord, deny then the trial court should No. 80SA286. motion a new trial and the case should be recertified court for resolution of Colorado, the propriety ruling. of that United States En Banc. Agurs, 427 U.S. 96 S.Ct. April L.Ed.2d “On the hand, other if the already verdict

questionable validity, additional

relatively importance might minor be suffi-

cient create a reasonable doubt.” If Id.

the court finds the error was not harm-

less, then it should order a new trial. See Shaver, Colo., 630 P.2d 600

Huguley People, 195 Colo. (1978); Compton

Accordingly, I would remand the case to

the trial court in order to enable it to make findings

requisite discovery fact on the appeal.

issue raised on this

Case Details

Case Name: People v. Gallegos

Court Name: Supreme Court of Colorado

Date Published: Apr 26, 1982

Citation: 644 P.2d 920

Docket Number: 80SA252

Court Abbreviation: Colo.