The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Charles HAMPTON, Defendant-Appellant.
No. 82SA575.
Supreme Court of Colorado, En Banc.
Feb. 25, 1985.
Rehearing Denied March 25, 1985.
696 P.2d 765
III.
In the findings supporting the denial of the application, the water judge noted that the only issue involved was whether the overt acts supporting a conditional decree must be performed on the land. Then, after reviewing prior decisions of this court and reaching an affirmative answer to this question, the water judge concluded that the applicants were not entitled to a conditional decree due to their failure to perform the necessary overt acts on the land. Thus, the water judge‘s subsequent conclusions—that the filing of the notice and the application with the FERC and the filing of the application for adjudication of water rights by Aspen and Pitkin County were not sufficient to constitute the necessary first step establishing a conditional water right—cannot be said to reflect a view by the water judge that these acts would not be sufficient to satisfy the conditional decree requirements absent the “on the land” restriction.
Furthermore, the parties entered into a stipulation as to the relevant facts and concentrated their efforts, both below and before this court, on arguing the necessity for the performance of work “on the land.” Neither the water judge nor this court has been favored with adequate arguments concerning the sufficiency of the acts actually performed by Aspen and Pitkin County to manifest the necessary intent to apply water to beneficial use, to demonstrate that a substantial step has been taken toward the application of water to beneficial use, or to constitute proper notice to interested persons. In addition, the record may be insufficient for review by this court at this time in view of our elaboration of the requirements and reasons for the “first step” test. For us to make a determination as to the validity of the applicants’ claimed conditional water right in this opinion, without the benefit of focused argument and upon the basis of a possibly inadequate record, would not promote a just resolution of this litigation.
Therefore, we remand this case to the water judge with instructions to determine whether the applicants have satisfied the requirements for a decree of a conditional water right as outlined in Part II of this opinion and in City & County of Denver v. Colorado River Water Conservation District, 696 P.2d 730 (decided this day). The water judge has leave to reopen the proceedings for the presentation of further evidence if he deems it necessary in order to achieve full compliance with the views expressed in this opinion.
Judgment reversed and cause remanded.
L. Duane Woodard, Atty. Gen., Charles B. Howe, Deputy Atty. Gen., Joel W. Cantrick, Sol. Gen., Nathan B. Coats, Chief, Crim. Appeals Asst. Atty. Gen., Denver, for plaintiff-appellee.
David Vela, Colorado State Public Defender, James England, Deputy State Public Defender, Denver, for defendant-appellant.
Charles Hampton, the defendant, appeals his convictions for aggravated robbery, conspiracy to commit aggravated robbery, and the commission of a crime of violence. He claims he was denied his statutory right to a speedy trial and that reversible error occurred when the trial court precluded him from eliciting testimony from two alibi witnesses because of his failure to comply with
I.
The defendant was charged in the District Court of El Paso County with aggravated robbery,2 conspiracy to commit aggravated robbery,3 and the commission of a crime of violence involving the use of a deadly weapon.4 The charges arose out of the robbery of an employee of Furr‘s Cafeteria in Colorado Springs on August 14, 1977, by three masked gunmen. The defendant was arraigned on September 26, 1977, and entered a plea of not guilty.5 Three days later, on September 29, 1977, the prosecuting attorney, pursuant to
On January 27, 1978, the trial court granted the defendant‘s motion to suppress certain evidence obtained from a search of an automobile. Five days later, on February 1, 1978, the People simultaneously filed with the clerk of the trial court a motion for rehearing and a notice of interlocutory appeal. On March 3, 1978, the trial court denied the petition for rehearing, whereupon the People filed an amended notice of interlocutory appeal with the clerk of the district court.
This court reversed the trial court‘s suppression order on September 25, 1978, and the same day a mandate was issued to the trial court. The defendant, however, requested that this court reconsider its opinion because of an alleged factual mistake. The mandate was recalled on October 23, 1978, and approximately three weeks later, on November 13, 1978, a new opinion was announced, again reversing the suppression order, People v. Hampton, 196 Colo. 466, 587 P.2d 275 (1978), and a mandate was issued returning jurisdiction to the trial court.
On October 16, 1978, after the first mandate had issued but before it had been withdrawn, the trial court, acting on the prosecution‘s request, scheduled the defendant‘s trial for November 27, 1978. Although the trial court and the prosecuting attorney had apparently calculated this date to be within the statutory speedy trial period, defense counsel had not determined as of that date how much time, if any, remained on the statutory speedy trial term. Defense counsel, offering to waive the defendant‘s right to a speedy trial, requested the court to set the trial in January 1979, because he needed more time to prepare a defense. When the court refused the request for a later trial date, defense counsel expressly stated that his previous offer should not be construed as a waiver of the defendant‘s right to a speedy trial. Subsequent to the trial setting, the defendant filed a motion to dismiss on grounds that his statutory right to a speedy trial had been denied. This motion was heard and denied by the trial court on November 27, 1978, prior to the commencement of jury selection.
Approximately twelve days prior to trial, defense counsel learned, apparently for the first time, of three potential alibi witnesses. Because the defense investigator had difficulty in contacting and interviewing these witnesses, it was not until November 24, 1978, that defense counsel orally notified the district attorney that he might present an alibi defense at trial. On November 28, while jury selection was still in progress,6 defense counsel served on the prosecuting attorney and filed with the court a written notice of alibi. The notice stated that the defendant was at 5173 Sherman Street and 2909 Ivanhoe Street, Denver, Colorado, during the period of time designated in the prosecution‘s specification of time and listed the names and addresses of two alibi witnesses whom the defendant intended to call at trial. Three days later, during the prosecution‘s case, defense counsel disclosed the name and address of a third alibi witness who had apparently been interviewed by the defense investigator on the preceding day.
At the close of the People‘s case, the prosecuting attorney requested the court to exclude the defendant‘s alibi evidence on the ground that defense counsel had failed to inform the prosecuting attorney, as required by
The defendant presented no evidence in his defense and was convicted of aggravated robbery, conspiracy to commit aggravated robbery, and a crime of violence. He was sentenced to a term of ten to fifteen years for aggravated robbery and a concurrent indeterminate term not to exceed ten
II.
We first address the defendant‘s speedy trial claim. He essentially argues that, excluding from the six month statutory period any legitimate period of delay caused by the prosecution‘s interlocutory appeal, the commencement of the trial on November 27, 1978, was in violation of his statutory right to a speedy trial, with the result that any judgment of conviction entered in this case must be reversed. We reject the defendant‘s argument.
Section
The defendant‘s argument, as we perceive it, proceeds as follows: (1) the prosecution‘s filing of a motion for rehearing with the trial court on February 1, 1978, suspended the effect of the interlocutory appeal until March 3, 1978, when the trial court denied the petition for rehearing and the prosecution filed its amended notice of appeal, with the result that there were only twenty-four days then remaining on the statutory speedy trial term upon final resolution of the interlocutory appeal; (2) in addition to the tolled period from March 3 to September 25, 1978, when this court issued its initial mandate after reversal of the trial court‘s suppression order, the only other period of delay properly includable within the tolled period is the period from October 23 to November 13, 1978, when this court had under advisement the defendant‘s motion to reconsider the judgment reversing the trial court‘s order of suppression; and (3) because there were only twenty-four days remaining on the speedy trial period when the People‘s amended notice of interlocutory appeal was filed on March 3, 1978, the statutory six month period expired long before November 27, 1978, even if the period of October 23 to November 13, 1978, is excluded from the computation. The defendant‘s argument, however, is built on the erroneous assumption that the filing of the prosecution‘s notice of interlocutory appeal on February 1, 1978, neither divested the trial court of jurisdiction over this case nor tolled the speedy trial period.
The filing of a notice of appeal, unless otherwise specified by statute or rule, divests the trial court of jurisdiction “to issue further orders in the case relative to the order or judgment appealed from.”
There were fifty-four days remaining on the unexpired term of the six month period when the interlocutory appeal was filed. The delay caused by the interlocutory appeal ended, albeit temporarily, with this court‘s issuance of a mandate to the trial court on September 25, 1978. Although the time remaining under the speedy trial statute as of September 25, 1978, dictated that the trial was to commence within the fifty-four remaining days, that is on or before November 18, 1978, the trial court erroneously set the defendant‘s trial for November 27, 1978. The defendant‘s right to a speedy trial, however, was not denied simply because the trial setting was beyond the six month period. By the express terms of section
The speedy trial period was again tolled on October 23, 1978, when, pursuant to the defendant‘s extraordinary request, this court withdrew its initial mandate. As of that date, there were twenty-six days remaining on the speedy trial period, and the trial court again lost jurisdiction over the case and did not regain it until a new mandate was issued on November 13, 1978. Excluding the period during which the trial court lost jurisdiction over the case due to the recall of the mandate, there were twenty-six days yet remaining on the speedy trial period when the trial court regained jurisdiction on November 13, 1978. Since the trial date of November 27, 1978, was well within this twenty-six day period, the defendant was not denied his statutory right to a speedy trial.
III.
We turn to the defendant‘s challenge to the trial court‘s exclusion of his alibi defense. The trial court‘s ruling was predicated on
The prosecuting attorney may serve upon the defendant within a reasonable time before the trial a written notice specifying with reasonable certainty the contention of the prosecuting attorney as to the time when and the place where the defendant committed the offense charged. In that event the defendant, if he intends to introduce evidence that he was at a place other than that specified, shall serve upon the prosecuting attorney within a reasonable time after service of the prosecuting attorney‘s notice a statement in writing specifying the place where he claims to have been and the names and addresses of the witnesses he will call to support the defense of alibi. Upon receiving this statement, the
prosecuting attorney shall advise the defendant of the names and addresses of any additional witnesses who may be called to refute such alibi within a reasonable time after their identity becomes known. Neither the prosecuting attorney nor the defendant shall be permitted at the trial to introduce evidence inconsistent with his specification, unless the court for good cause and upon just terms permits the specification to be amended. If a defendant fails to make the specification required by this section, the court shall exclude evidence in his behalf that he was at a place other than that specified by the prosecuting attorney unless the court is satisfied upon good cause shown that such evidence should be admitted.10
The defendant argues that
A.
We first address the defendant‘s claim that
If either the defendant or the prosecuting attorney fails to file and cause to be served the statement containing the names and addresses of alibi witnesses or rebuttal witnesses required by this section, the court shall exclude evidence offered in support of the defense of alibi or in rebuttal thereof, as the case may be, unless the court finds upon good cause shown that such evidence should be admitted in the interest of justice.
Our analysis of the disclosure obligation and the exclusion sanction of
Given the ease with which an alibi can be fabricated, the State‘s interest in protecting itself against an eleventh-hour defense is both obvious and legitimate. . . . The adversary system of trial is hardly an end in itself; it is not yet a poker game in which players enjoy an absolute right always to conceal their cards until played. We find ample room in that system, at least as far as “due process” is concerned, for the instant Florida rule, which is designed to enhance the search for truth in the criminal trial by insuring both the defendant and the State ample opportunity to investigate certain facts crucial to the determination of guilt or innocence.
399 U.S. at 81-82, 90 S.Ct. at 1896 (footnote omitted).
Nor did the Court find any merit in the argument that the alibi rule violated the Fifth Amendment privilege against self-incrimination by requiring an accused to provide the prosecution in advance of trial with information that may be used to obtain a conviction. Although a defendant in a criminal trial, the Court noted, is frequently faced with the predicament of either presenting no evidence whatever or testifying himself and perhaps calling other witnesses, thereby revealing their identity and subjecting them to cross-examination that might furnish the state with a lead to incriminating rebuttal evidence, such a hard choice “has never been thought an invasion of the privilege against compelled self-incrimination.” 399 U.S. at 84, 90 S.Ct. at 1897. The constraints generated by the Florida alibi rule were similarly viewed by the Court as pressures associated only with the timing of disclosure—that is, the rule merely required an accused to divulge at an earlier date information that he intended to ultimately divulge at trial. Nothing in the Fifth Amendment, the Court concluded, “entitles a defendant as a matter of constitutional right to await the end of the State‘s case before announcing the nature of his defense.” 399 U.S. at 85, 90 S.Ct. at 1898.
We believe the Supreme Court‘s decision in Williams answers much of the defendant‘s facial challenge to
Preconditions to the exercise of a right are not unknown to the criminal law and, when reasonable in nature, do not constitute an abridgement of that right. The defense of insanity, for example, must generally be pled at the time of arraignment.
Nor, in our view, does the exclusion sanction of
We recognize that
Although courts have reached different results on the propriety of excluding an accused‘s alibi testimony for failure to list the accused as an alibi witness, we agree with the reasoning of the court in Alicea v. Gagnon, 675 F.2d 913, 924 (7th Cir. 1982). In holding that Wisconsin‘s exclusion sanction was unconstitutionally applied to the accused‘s alibi testimony, the Seventh Circuit Court of Appeals stated:
The principal reason for notice rules . . . is prevention of surprise to the state, not punishment of the accused for mere technical errors or omissions. In this situation it is difficult to see how the government can claim surprise. As an essential part of its case, the state must prove a defendant‘s presence during the commission of an alleged crime, proof which invariably requires pretrial investigation and preparation. Armed with this evidence, the state is in a formidable position to refute a defendant‘s unexpected alibi testimony, particularly where, as here, such testimony is uncorroborated by other defense witnesses. We doubt that a defendant‘s unsupported explanation will overcome testimony by state witnesses placing him at the scene of the crime. Thus, the prejudice to the state‘s case from allowing a defendant to exercise his constitutional right to testify is de minimis and does not warrant complete preclusion.
In addition, we do not consider Wisconsin‘s interest in facilitating the orderly administration of justice sufficiently important to override the accused‘s right to tell his version of the story. If a defendant takes the stand and denies his presence during the crime, the state can readily rebut his denial on cross-examination by asking the defendant to address the state‘s evidence. If for some reason the state considers its evidence significantly weakened by a defendant‘s unsubstantiated testimony, it should seek a continuance for further investigation, rather than seeking total preclusion of the defendant‘s testimony. It is unlikely, however, that such defense testimony would ever have enough impact to necessitate a continuance unless the defendant‘s explanation was so persuasive that his innocence became apparent, in which case the proper measure would be to end the trial, not to continue it.
Contra, e.g., Burke, 41 Wis. 2d 129, 163 N.W.2d 177; Bowen v. State, 263 Ind. 558, 334 N.E.2d 691 (1975).
In summary, we conclude
B.
We next consider whether the trial court erred in finding that the defendant failed to comply with the disclosure requirements of
As the Supreme Court observed in Williams, “[g]iven the ease with which an alibi can be fabricated,” the prosecution has both an obvious and legitimate interest in protecting itself against the assertion of this defense at that point in the criminal process when there is little or no time to investigate the alibi and to assemble rebuttal witnesses. 399 U.S. at 81, 90 S.Ct. at 1895. For this reason,
This obligation of disclosure required by
The construction of the defendant‘s disclosure obligation that we herein adopt is calculated to achieve the purposes intended by
We turn now to whether the defendant complied with
C.
We are left then with the propriety of the court‘s exclusion sanction. The failure to comply with the time requirements of
The exclusion of relevant and competent evidence offered in defense of a criminal charge is a severe sanction, implicating as it does the defendant‘s right to present a defense and ultimately the right to a fair trial. See, e.g., Chambers, 410 U.S. at 302, 93 S.Ct. at 1049; Washington, 388 U.S. at 19, 87 S.Ct. at 1923; Curtis, 681 P.2d at 509-11; Hendershott, 653 P.2d at 391; People v. Moore, 36 Colo.App. 328, 539 P.2d 489 (1975). While the sanction of exclusion remains, within the limits of constitutional application, a matter of judicial discretion, several courts have held that, because of the significance of the rights at stake, the exercise of that discretion must be properly informed by an adequate inquiry into and consideration of the circumstances underlying the defendant‘s noncompliance and the effect of the exclusion sanction on both the prosecution and the defense. See, e.g., State v. Smith, 123 Ariz. 243, 599 P.2d 199 (1979); Slaughter v. State, 330 So.2d 156 (Fla.App.1976); State v. Christensen, 323 N.W.2d 219 (Iowa 1982); State v. Bias, 393 So.2d 677 (La. 1981); State v. Merritt, 396 Mich. 67, 238 N.W.2d 31 (1976); State v. Mitchell, 149 N.J.Super. 259, 373 A.2d 700 (1977). The factors pertinent to the court‘s ultimate determination include the following: the reason for and the degree of culpability associated with the failure to timely respond to the prosecution‘s specification of time and place;13 whether and to what extent the nondisclosure prejudiced the prosecution‘s opportunity to effectively prepare for trial;14 whether events occurring subsequent to the defendant‘s noncompliance mitigate the prejudice to the prosecution;15 whether there is a reasonable and less drastic alternative to the preclusion of alibi evidence;16 and any other relevant factors arising out of the circumstances of the case. E.g., Smith, 123 Ariz. 243, 599 P.2d 199; Christensen, 323 N.W.2d 219; Bias, 393 So.2d 677; Merritt, 396 Mich. 67, 238 N.W.2d 31. In ruling on a motion to exclude defense alibi evidence, the trial court should identify on the record those factors which it considers critical to its ultimate determination that there is or is not good cause to permit the alibi evidence in spite of the defendant‘s noncompliance with the disclosure requirement. Only in this way can there be meaningful appellate review of the trial court‘s ruling.
In this case the court failed to give any reasons for its exclusion of the alibi evidence, and we are therefore unable to determine whether the court properly
The judgment is accordingly vacated and the cause is remanded to the district court for further proceedings in accordance with the views herein expressed.
ROVIRA, J., concurs in part and dissents in part.
ERICKSON, C.J., joins in the concurrence and dissent.
ROVIRA, Justice, concurring in part and dissenting in part:
I concur with all of the opinion except Part III, C, from which I respectfully dissent.
In my opinion, the record in this case amply supports the trial court‘s ruling and establishes that the trial court properly exercised its discretion in imposing the exclusion sanction of
The majority opinion vacates the judgment of conviction and orders a remand because the trial court “failed to give any reasons for its exclusion of the alibi evidence.” Maj. op. at 778. It outlines five factors, supported by four explanatory footnotes, which should guide the trial court in its ultimate determination.
We can review the record and, on the basis of that review, come to our own conclusion whether there was good cause shown to permit the alibi evidence to be introduced in spite of the defendant‘s noncompliance with the disclosure requirement. In my judgment, the facts set out in Part I of the majority opinion, and my reading of the record, support the trial court‘s ruling.
The People gave notice to the defendant concerning an alibi defense on September 29, 1977. Over a year later, on Friday, November 24, 1978, three days before the trial was to start, the defendant‘s attorney told the People that there might be an alibi defense but did not provide the names of alibi witnesses. On Tuesday, November 28, 1978, the defendant provided the People with the names of two alibi witnesses. On Friday morning, December 1, 1978, the defendant provided the People with the name of a third alibi witness. This information came shortly before the People rested their case at 10:55 a.m. After excusing the jury, the court considered various motions, including the People‘s motion to exclude testimony of alibi witnesses. The court allowed the defendant to make an offer of proof to show good cause why he waited for over one year after receiving the People‘s notice to provide the names of alibi witnesses.
As his offer of proof, the defendant put his investigator on the stand. The investigator testified that he was given the names of three individuals who would supposedly state that the defendant had been at a
The People pointed out that the nature of the alibi defense is such that a defendant should usually know that he was somewhere else at the time in question, and often he should know who he was with. Further, even though defense counsel may have disclosed the defense shortly after learning of it, no explanation was offered by the defendant as to why he waited until one week before trial to disclose the defense to his counsel, and the lack of compliance should be attributed to the defendant as well as his attorney.
The People also pointed out that they had not been able to interview the witnesses until that morning, December 1, and that the remedy for noncompliance with
After hearing the arguments on both sides, the court granted the People‘s motion to exclude the testimony of alibi witnesses. Although the court did not state its reasons for the ruling, the record demonstrates that the factors listed in the majority opinion were brought to the trial court‘s attention. I do not believe it is necessary for adequate appellate review to remand the case and require that the trial judge recite the factors supporting his decision.
Thus, based upon the evidence submitted to the trial court, I would affirm the trial court‘s ruling and reach the other issues raised by the defendant in this case. See Maj. op. at 769 n. 1.
I am authorized to say that Chief Justice ERICKSON joins me in the concurrence and dissent.
TATTERED COVER, INC., a Colorado corporation, d/b/a Tattered Cover Bookstore; Joyce Knauer; Pioneer Ventures, Inc., a Colorado corporation, d/b/a Columbine Books and Records; Larry Hamilton; American Booksellers Association, Inc.; Association of American Publishers, Inc., a New York corporation, and Council For Periodical Distributors Associations, Plaintiffs-Appellees, Cross-Appellants, v. Dale TOOLEY, District Attorney, Second Judicial District; Arthur Dill, Chief of Police, Denver Police Department; and Jerry Kennedy, Captain, Vice Squad, Denver Police Department, Defendants-Appellants, Cross-Appellees.
No. 82SA85.
Supreme Court of Colorado, En Banc.
Feb. 25, 1985.
Rehearing Denied April 1, 1985.
Notes
This response, we believe, points up precisely why the defendant‘s proposed construction ofI had no intent to call any of these people, no firm intent to call them, until Monday or Tuesday of this week, and I tried to give [the prosecution] notice, the minute I made up my mind that I was going to call these people.