*1 thirty рended days. party Neither has Ill excepted panel’s action. to the Accordingly, hereby it is ordered Lawyer Imposing The ABA Standards Randolph Sigley suspended A. be from the (1991 (ABA Sanctions Stan- Supp.1992) & thirty practice days, of law for thir- effective dards) that, ag- provides in the absence of days ty opinion. this after issuance of factors, gravating mitigating “[s]uspension or 241.21(a). See C.R.C.P. It is also ordered lawyer appropriate a generally is when respondent pay costs this of of knows a conflict of interest and does $1,885.75 proceeding in the amount fully possible to a disclose client the effect Committee, Supreme Court Grievance conflict, injury potential and causes Street, 920-S, Denver, Seventeenth Suite injury to a client.” ABA Standards 4.32. days Colorado within 90 an- hand, public On the other censure is warrant- opinion. nouncement lawyer “negligent ed if the is at most determining representation a whether the may materially
client law- be affected interests,
yer’s represen- own or whether the client, adversely will
tation affect another injury potential injury
and causes Id. 4.33.
client.” at
Suspension “appropriate is also when client,
lawyer knowingly deceives a injury potential injury
causes
client.” Id. at 4.62. But a public is censure lawyer knowingly warranted en- “when PEOPLE State gages in ... in- [noncriminal] conduct that Colorado, Petitioner, fraud, dishonesty, deceit, volves or misrepre- adversely sentation reflects on the Id. lawyer’s practice fitness to law.” at 5.13. Raymond NOLINE, Respondent. C. respon- board found that the No. cooperative proceed- dent had been 94SC736.
ings, Id. mitigating which is a at factor. Colorado, Supreme Court 9.32(e). however, aggravation, the re- En Bane. spondent exhibited dishonest or selfish mo- id. tive, 9.22(b); multiple at there of- are June 1996. fenses, 9.22(d); id. at respondent has acknowledge wrongful refused to nature Rehearing Denied June conduct, id. at 9.33(g); respon- his 9.22(h). vulnerable, id. at dent’s were victims
Finally, respondent because the received
three letters of admonition for misconduct
occurring during period the same time as the case, pattern
misconduct in this there 9.22(c).
misconduct. Id. aggravation,
Given the factors in least period suspension
short is warranted. period greater thirty days may
While than appropriate, given the circumstances of
this ease we have nevertheless elected
accept panel’s the board’s and recommenda-
tion.
(Colo.App.1994), to determine whether the investigate indict a grand jury can a case and charges county felony after the defendant on hearing held a and court has felony for lack of dismissed charges no addi- complaint on the same presented to the tional evidence is jury.1 appeals affirmed the The court of felony district court’s dismissal holding have options com- two after dismissal of (1) county court: plaint county court’s determination filing of an information direct subject per- to that court’s mission. We reverse the decision appeals hold that the are case, statute, rule, by any precluded provision proceeding with constitutional jury present the action taken here. Grand dismissal is ment after appeal of simply an alternate route to an cause determination I. 21, 1992, Raymond Noline June C.
On
Denver,
victim in
into
home
broke
out at the time
The victim was
Colorado.
awaiting her
and Noline hid in her basement
returned,
Shortly
totally
she
return.
confronted the victim her
naked Noline
Ritter, Jr.,
Attorney,
District
A. William
un-
process
She was
bedroom.
Coats,
District,
B.
Nathan
Second Judicial
dressing
only in her underwear.
was clad
Attorney,
Deputy District
Everett
Chief
sexually
grabbed
aroused and
Noline became
Attorney,
Engstrom, Deputy
Den-
District
managed
wrists.
victim
the victim’s
ver, for Petitioner.
hitting
on the head
away after
Noline
break
Vela,
Public De-
F.
Colorado State
David
fled out the
high-heeled
shoe. Noline
III,
Cleave,
fender,
Deputy
M.
Thomas
Van
was not
of the house. He
back entrance
Defender, Denver,
Respon-
for
Public
State
however,
immediately apprehended,
and he
dent.
victim.
continued to stalk the
13, 1992, Noline,
August
naked but
On
delivered
Justice MULLARKEY
sneakers, finally
captured in the
pair
was
Opinion of the Court.
vicinity
home. Detective
of the victim’s
officer,
police
testified at
Lotspeich, a Denver
granted
People’s petition for
We
Noline,
hearing
before
certiorari
were
following
brought
but
granted
on the
issue:
We
certiorari
following preliminary
probable cause
lack of
permits
in-
Whether Colorado
originally
court?
felony charges
that were
dict
17, 1992,
during
the course of his
tember
interview
initiated a mo-
defendant,
charge
tion
degree
Noline admitted break-
to dismiss the
of first
trespass
granted by
ing
home on
into
victim’s
June
day,
district court.
on that
Earlier
same
going
and also admitted
to the victim’s resi-
*3
People presented
statutory
matter
the
the
prior
dence
to and after the incident and
grand jury impaneled in
City
County
the
and
fantasizing sexually
prior
about her.
oneOn
of
testimony
Denver. After
the
of
occasion,
help
Noline had offered to
the vic-
Lotspeich,
the victim and Detective
the
yard
tim with some
work and
refused
she
the
grand jury
against
an
returned
offer. Noline further
informed Detective
of
attempt
Noline for one count
criminal
of
Lotspeich that he
the
broke into
victim’s
degree
first
sexual assault and one count of
having
home
the
intent
sex
her.
degree
burglary.
second
The
were
explained
impression
Noline
that he had the
previously
identical
those
and
heard
dis-
they
that
had “bonded” and would enter into
county
Although
missed
the
the
However,
relationship.
things
when
didn’t
grand jury
victim
the
testified before
and did
to,
work
as
out
he intended them he rаn out
testify
preliminary hearing,
the
the
the back entrance while
ran
the victim
out
presented
they
do
assert
that
screaming
help.
the
front
grand jury
additional or new evidence to the
August 18,
On
the
filed an
presented
county
that was not
to the
court.3
against
information
Noline in the Denver
moved to
Noline
dismiss the indictment on
County Court on one count
criminal
at-
grounds
could not submit the
tempt
degree
first
pursuant
sexual assault
county
matter to the
after
18-2-101,
(1986),
8B
sections
C.R.S.
and
court
complaint
dismissed the
for lack
18-3-402,
(1986),
8B C.R.S.
and one count of
holding
after
degree burglary pursuant
second
to section
hearing. The Denver District Court found
18-4-203,
(1986).
8B C.R.S
The
court
probable cause to believe that Noline had
preliminary hearing
September
held
on
alleged
committed the
offenses based on the
and dismissed the
because it
grand jury.
evidence
Nev-
found
there was no
as to
ertheless,
and,
agreed
the court
with Noline
charged.2
offenses
The
howev- by
14, 1993,
January
dated
order
er, bound the
degree
matter over for first
indictment. The written or-
trespass pursuant
to section 18-4-
specifically
der
that
stated
motion
Noline’s
(1995
502,8B
Supp.), a
C.R.S.
lesser included
granted
dismiss was
prosecution
because the
offense.
failed to
P.
adhere to Crim.
5 and Crim. P. 7.
incorporated
ordеr
written
the oral find-
did not
the decision of
ings of the district
court which
court
permitted
as
under
following
made the
statements:
5(a)(4)(IV).
Nor
did
file direct
information
the district court under Crim.
I
prosecution
would conclude that once the
5(a)(4)(V)
7(c)(2). Instead,
way
on Sep-
proceeded by
has
of information and
comity
following
2. The
made
oral rul-
that.
here
I'm
to decide
or not
whether
ing:
defendant committed a crime
conduct that
in,
intent,
time
accompanied by
requisite
At the
the defendant
it
broke
had to
was
and I
purpose
sexually
have been for the
assault-
requisite
don’t
that
find
intent was there.
ing the victim. If he entered in the delusional
I find that there was an intent to enter the
welcomed,
his
belief that
advances would be
I
premises
permission
without
home-
requisite
do
find
that he had the
intent at
upon
premises.
owner and to remain
that
I
entiy
premises.
time
into the
I further
first-degree trespass;
find
it fits
I do not
violently
do not find that
he had
intent to
burglary
attempted
it
find that
fits
assault.
requirements
assault meet
of the other
for sexual
find
assault.
that he went in for a
Court,
(Colo.
3. See
Holmes District
view of perhaps making I see that in sions. do A. limitations, placed have the courts some opposed to on the as those II, the constitu- section 8 of Under article event, otherwise, they appear in any but tion, lim- felony prosecutions originally were Otherwise, if I would conclude that exist. However, the General ited to indictments.4 any point prior time in fact at in some un- Assembly, pursuant powers to its vested attaching, jeopardy there is some district II, constitution, 28 of the der article section which is inconsistent with court decision procedure.5 The Gener- alternate created an position, grand prosecution’s then attor- Assembly provided has al over, might if jury become a forum to start to initiate ney different means a with three will, you particular attorney deci- sidestep felony prosecution. and those The district can; (1) complaint in felony I that this is incon- a would assume file sions. court; (2) in file an information public policy which is de- with the sistent court; proceed by way of return of or in ease v. Holmes as scribed of grand jury. § 16-5- from the Stokes, I described as have well (1986). 101(l)(a)-(c), 8A C.R.S. ago. moments circumstances, I con- historically would Under the the first means Although felonies, system jury grand then that should not honor prosecuting clude jury As com- subsequent activity utilized in Colorado. one from the is seldom previously upon by has ruled mentator noted: once it has been courts, II, in not of or in criminal cases courts all 4. 8 of the Colorado Constitu- Article section record, per- provides may that: of less than twelve tion consist law, sons, by provided person may prescribed by law. Hereafter be Until otherwise shall, as felony, proceeded against persons, crimi- for a of twelve shall consist indictment, by except in nally otherwise than concurring may any find an nine whom forces, arising or in in the land or naval cases indictment; assembly may provided, general in service time militia when in actual sys- change, regulate or abolish the cases, public danger. of- In all other war or tem; further, right provided, criminally by prosecuted indict- shall be fenses any jury person shall not be denied to serve on ment information. sex, general abridged and the on account of exemp- may provide assembly law for the II, Constitu- 5. section 23 of Colorado Article jury persons classes of tion from service provides that: tion persons. right jury trial shall remain inviolate cases; (Emphasis supplied.) civil in cases in criminal but majority prosecutions itly The vast in Col- describe two courses action Only felony complaint initiated orado аre information. can take after been has population counties with more than court for lack of 100,000 standing a regularly selected have probable cause. Special juries may,
.grand jury.
5(a)(4)(IV),
Under Crim.
course,
jurisdictions
be selected for smaller
appeal to the district court:
motion,
upon proper
but
rare
generally
There
occurrence.
are
appears
If from the evidence it
regularly sitting grand juries
handful of
court that
is not
there
Colorado, and the
indictment is utilized
charged
cause to believe that the offense
percent
less than 1
of all
filed
cases
defendant,
has been committed
in the state.
court shall dismiss the
discharge
prose-
the defendant.
If the
Jeffrey Bayless,
Jury
H.
Grand
Reform:
finding
cutor
believes
court erred
its
J.,
Experience,
May
The Colorado
A.B.A.
probable cause,
prosecutor may
of no
Although
572.
this statistic is
ruling
to the district court.
dated,
changed
little seems to have
since
error,
any,
Such
if
shall not constitute
Davis, Rodney
See
L.
King
Peter
*5
refiling.
cause for
Brutality
the Decriminalization
Police
America: Direct and Judicial Access to the
5(a)(4)(V),
Under Crim.
Jury
Grand
as Remedies
Victims
Po-
to
seek
file a direct
information
the district
Brutality
lice
the Prosecutor
When
Declines
court:
Prosecute,
Md.
53
L.Rev.
328-332
(1994)
felony complaint following
Dismissal of a
(analyzing
a
applauding
and
Colorado’s
preliminary hearing
grand jury
noting
or dismissal without a
grand
scheme but
that the
being
jury
hearing
is underutilized
quoting
and
above
held shall not
passage).6
great
a
preponderance
subsequent filing
The
bar to a
of felo-
be
of a direct
prosecutions
ny
are
charging
initiated
information in the district court
district
and
courts.
defendant
the same offense....
The
accompanied by
information shall be
attorney
If the
proceed
district
chooses to
prosecutor
a written statement from the
felony
by
complaint
filed in the
alleging facts which establish
evi-
governing procedures
“shall be in accor-
good
dence exists which for
cause was not
required by
dance with
as
applicable
and
presented by
prosecutor
prelim-
at the
provisions of the
procedure
rules of criminal
inary hearing.
twenty days
Within
of de-
promulgated by
supreme
court of Colora-
appearance following
fendant’s first
the di-
7
(1986).
16-5-101(2),
§
do.”
8A C.R.S.
filing
may
rect
request
the defendant
accurately
by
As
set
ap-
evidentiary hearing
out
the court
prosecu-
at which the
peals,
explic-
procedure
rules
criminal
good
tor shall establish the existеnce of
dition,
Notably,
Assembly
in 1977 the
required
General
enacted
the 1977
amendments
sweeping
amendments to the
present
statute
reporter always
during grand jury
provided
safeguards against
which
numerous
proceedings
proceedings
and that the
be record-
overreaching by
prosecution.
example,
For
16-5-204(4)(f),
(1986);
§ed.
8A C.R.S.
Crim. P.
(1) provided
the 1977 amendments:
an avenue of
transcripts
grand jury,
6.4.
*6
attorney has
attorney,
prosecuting
now
narrow issue
before
sion addresses the
relevant to
discovered additional evidence
us.
inquiry.8
such
protecting
provision as
We construed this
B.
“suspected
committing a
individuals
of
crime
Thomas,
its conclusion
appeals
The
of
reached
being
by
court
harassed
the state.”
from
Colo,
cases,
previous
by relying on three of our
P.2d at 770. Further-
198
at
596
Court,
(Colo. more,
P.2d 11
in
668
we
that result to be
accord
Holmes v. District
found
Freiman,
(Colo.
1983),
process
452
due
principles
667 P.2d
basic
of
state,
Court,
1983),
power,
all
County
prohibits
the
“with
its
from
and Thomas v.
(1979).
attempting
justification
without
repeatedly
None
these
1263
have been amended to
county
procedure
court and
tory
that both
nature
remedy
16-5-204(3),
additional
allow the
§
8A
lack.
district court
See
cause determina-
(1986).9 Therefore,
jury is
grand
C.R.S.
Noline,
P.2d at
district court.
tion
body
cannot be
unique
a distinct and
However,
concluded that “nei-
the court
of the two courts. Noth-
equated with either
have bеen
the rules nor
statutes
ther
explicitly
either
ing
decision
in the Thomas
authorize the commence-
amended so as to
precludes presentment
implicitly
cir-
jury proceedings in such
grand
ment
jury
dismissal
grand
agree that
Id. While we
cumstances.”
prior
appeal to the district
to an
court and
spe-
were not amended
rules and statutes
grand
cifically
of a
permit commencement
posture
Similarly,
different
between
circumstances,
jury proceeding under these
and Holmes
this
and both Freiman
case
cases,
statutes,
rules,
and constitutional
analyses
inapplica
those cases
renders
of ac-
do not foreclose the course
provisions
grand jury indictment was
before
ble. A
People in this case. Fur-
tion taken
dis
Freiman or Holmes. As
us in either
ther, the course of action taken
above,
jury
grand
separate
is a
cussed
comprise
undue harassment or
here does
entity.
do not raise
Its actions
distinct
oppression
indi-
accused
unwarranted
jurisdictional
identified
problems
óf
vidual.
arising between
in Thomas as
Freiman,
and, in
court and
district court
C.
arising
divisions of the dis
as
between two
Cregar,
v.
172 Ill.
trict court. See
appeals
construed our deci-
The court
613, 621,
526 N.E.2d
App.3d
122 Ill.Dec.
Holmes, Freiman,
and Thomas as
sions
(“a finding
1376, 1384
pre-
enunciating
“spirit
policy”
hearing
a subse
does not bar
jury
presentment
under
cluded
charging
...
quent
as the two
Noline,
circumstances of
ease.
exclusive”) (cita
mutually
procedures are not
Thus,
appeals
conclud-
at 4.
P.2d
denied,
omitted), appeal
123 Ill.2d
tions
ed that:
(1988);
“exclusive” inappropriately ex- these three cases longer because the rules applicable fa) against 16-5-204(3), (1986), duty inquire offenses Its into sets 8A C.R.S. Section Colorado part laws of the state of that: the criminal forth in relevant committed; alleged to have been impanelment grand jury, the Upon of each (b) interrogate right wit- to call and Its grand jury adequate give to shall such court nesses; and shall as- written notice of and reasonable (c) production right request reasonably Its grand jury that under- sure documents or other evidence. of: the nature stands pands testimony it describes as im- meeting what “Colorado’s informant’s as that rule’s requirement of or new additional evidence. portant public policy It of nonharassment.” that, law, held require- We as a matter of important recognize is that the nature of 7(c)(2) ments Crim. P. are met when justice system necessarily the criminal incon- present seek to the same evidence veniences those individuals who been have in a different form. found Because we a rule point accused crimes. From accused’s any possi- violation we did not have to reach view, justice system always the criminal Nevertheless, ble constitutional violations. oppres- entails some level of harassment and noted in balancing “right we dicta that ordinary sion. That level of inconvenience is attorney prosecute in prior opinions. what was addressed our against protect need to cases the accused prosecutorial conduct which must be oppression” weighs from discrimination and scrupulously avoided undue harassment in favor of the accused when the oppression rising unwarranted present make tactical decision not to process level of a due violation. If the Peo- preliminary hearing informant at a ple follow statutes and rules as set out county court subjecting to avoid him to cross Assembly the General and this then- Holmes, stage. examination at that actions cannot be harassing characterized as at 14. in constitutionally prohibited As a sense. very Holmes decision is short and corollary, if act in bad faith little is disclosed underlying about the facts. engaging seriously tactics which violate or Hence, we must drawing be cautious in too rules,
undermine the
or
statutes
such
general
much from Holmes other
than
proposition
prosecutorial
action can
undue
constitute
bad faith tac-
harassment
tics can rise to the level of undue harassment
oppression of
unwarranted
the accused. Our
oppression
and unwarranted
of the accused.
Holmes, Freiman,
decisions
and Thomas
Subsequently,
routinely
we have
held that
all
address tactics undertaken in
faith
bad
rely
solely
hearsay
cannot
way
that in one
consti-
another
preliminary hearing
in a
evidence
when an
tuted undue
op-
harassment
unwarranted
eyewitness
testify.
is available to
People v.
pression of the accused.
Horn,
(Colo.1989)
(citing
P.2d
cases).
Thomas,
“However,
In
we
explained
have also noted that
process
due
hearsay
may
great
evidence
constitute the
principles prevent
grand jury
from fur-
prosecution’s
bulk
evidence
such
investigation
ther
issues
eases).
proceedings.”
(citing
simply
Id.
We
a “no
showing by
true bill” without a
quantum
hearsay
do not know the
evi-
People that there
is new
additional evi-
dence
presented by
versus direct evidence
permits
dence that
reindictment.
held We
People in
Holmes.
process principles applied
the same due
Freiman,
People sought
circum-
Thomas,
to the situation
where
vent one district
ruling by application
People sought
to refile in the
to another division of the district court. We
court after the
had
ruled
that:
held
there was not
support
causе to
The trial
properly applied
the stan-
indictment. The
were
[balancing
rights
dard
of the district
acting
by attempting
in bad faith
to under-
attorney
prosecute against
rights
mine the decision of the district court as the
*9
accused]
to the facts of this case. The
statutory final
probable
trial level arbiter of
judge
trial
found that the
actions
cause.
attorney in
district
appealing
first
unsuccessfully
court decision
Holmes,
In
People
present
chose to
attempting
then
to file a direct information
hearsay testimony
instead
the informant’s
“oppressive.”
had become
testimony
direct
preliminary hearing
at a
Freiman,
sought directly file in to court district Holmes, As with the Freiman decision is 7(c)(2) pursuant to Crim. P. provide offered short and does not much back- grand jury. However, indictment to the it clear that Frei- sion ground. is In in which the matter is ad- man, states in reach- dispositive consideration statute, gener- by have dressed the courts oppression, was ing finding of unwarranted is ally that there no reason to that, concluded Beyond faith. prosecutorial bad prohibit or of the restrict the submission from the Freiman deci- much can be drawn charges grand jury. sion. Bryson, 1 Sara Sun Beale & William C. appeals, In to the court contrast 6:41, Jury § Grand Law and Practice Ch. course of action taken conclude (footnotes (1986) at 244 and cases cited not constitute un-
here
does
omitted).
therein
oppression
or unwarranted
due harassment
Holmes, Thomas, and
Frei-
as evinced
Eaton,
example, in
462 A.2d
For
State
Appeal
court’s decision
man.
(Me.1983),
Supreme
Court of
Judicial
5(a)(4)(IV).
P.
permitted
Crim.
is
under
held that the State is not barred from
Maine
they
option:
The
have an alternate
prosecuting
by grand
indict-
an offender
to
proceed by presentment
complaint
ment after dismissal of a
is
jury.
appropriate
of these
Either
avenues
court10
of the
failure
district
because
State’s
requirements
if the
cannot meet
hearing.
The
proceed
to
bind-over
filing in the
court
seeking
a direct
originally filed
the district
complaint was
7(c)(2).
5(a)(4)(V) or
under
Crim.
analogized
opinion,
In its
court.
generate
of in-
Both routes
the same level
complaint
is dismissed
the situation where
individual;
convenience for the accused
nei- by
probable
district court for lack of
more
than the other.
ther is
burdensome
The court reasoned that
cause.
(the
16-5-101(2),
jurisdiction
§
8A C.R.S.
determine
See
court does not have
guilt
It
is
felony prosecution by
the defendant’s
or innocence.
can initiate
binding
superior
over to the
felony complaint in
fil-
limited
direct
Discharge under
if it finds
court, or
ing in district
return of an indict-
applicable
procedure,
Maine’s
rule of
jury).
Proeedurally,
ment
5(e),
acquittal.
not act as an
Rule
does
effect. More-
both routes have
same
“[Tjherefore
of a
a dismissal
over,
part
will
in the next
as we
discuss
prevent subsequent
reason does not
policy
support
opinion,
sound
reasons
prosecution
the same offense
indict-
allowing grand jury proceed-
the conclusion
at 508.
ment or otherwise.” Id.
ings
go
circumstances.
forward
these
however,
noted,
that:
The Maine court
D.
always
is
Superior
Court
vested
power
to dismiss an indictment
permitted presentment
have
Other states
higher com-
duplicates a Class C or
after court dismissal for
plaint previously
by the District
insufficient
cause:
Court,
clearly appears that the whole
it
if
finding
cause at a
A
action
course of
generally
re-
is not
the accused.
amounts to harassment of
garded
presentation
as a bar
(emphasis supplied).
Id. at 504
grand jury.
to a
same
Several
lay
“hard-and-fast
loath to
down
stating
have
or court rules
states
statutes
harassment.11
as to
constituted
rules”
what
at the
finding
of no
Commonwealth, 373 Mass.
hearing stage
not bar
In Burke v.
does
(1977),
Supreme
including
Judicial Court Massachusetts held that the that absent believe a rule prose- contrary, Commonwealth was not barred from to statute are not cuting by grand jury precluded indictment after dis- pursuing from course of action proba- missal the district court for lack of grand jury taken here. Presentment regardless cause ble fact merely is an alternate route that the presented evidence in the two forums was Moreover, opt to take. the rationale for finding identical. After permitting such applicable. action remains finding probable (1) court’s no was not a cause Specifically, jeopardy no double has at- issue, determination final Massachu- preliminary hearing tached because a does highest explained setts’ court when no adjudicate innocence, therefore, guilt decision, appeal lies (2) discharge acquittal, is not an “the mechanism to unique body unique is a proceeding ensure that the has been characteristics, independent some an na- correctly.” terminated Id. 365 N.E.2d at and, hence, ture should be treated as an recourse, such 813. Without would “[i]t route. alternate cases, many leave class of which involve In Kysar, v. 422 United States 459 F.2d crimes, prosecu- serious lost to either further (10th Cir.1972), the Tenth Circuit considered appellate tion In review.” Id. reach- government prosecute by whether could holding, ing this the court concluded that it grand jury indictment after a United States “merely adhering] to general was rule Commissioner had jurisdictions followed in other that absent a grand lack probable jury cause. in- The right an adverse determination of was dictment based on the identical evidence probable prosecutor may seek a presented to the Commissioner. The grand jury indictment.” Id. 365 N.E.2d at eases). persuad- answered the affirmative. It was (citing 814 ed unique characteristics cases, acknowledge We that some as for jury: Burke, example permit preliminary The examination has as its proceed by grand jury partially sole function the determination of whether on the basis that no appеal lies from the trial evidence sufficient exists to warrant Burke, finding of no grand jury, defendant’s detention. The 811; Kent, 365 N.E.2d see also v. 54 function, possess- while endowed Ill.2d (proba 295 N.E.2d es an investigative additional function finding cause finality ble has no and is nei judicial unique process. appealable any way ther nor “in conclusive jury’s investigative power may exer- upon prosecution”); Thomas, State motion; its (Mo.1975) cised on own results of the (permitting grand S.W.2d investigation may be the indict- basis preliminary indictment after hearing examining discharge magistrate, ment. The preliminary hearing because: on the does hand, place jeopardy, the accused in other determines there is no preliminary solely link between the the evidence him at and the indictment, and ap hearing. “since the state cannot peal a at a hearing, dismissal it (footnotes omitted). Furthermore, Id. at 423 public deny would policy frustrate jeop because there threat double opportunity state prosecute”). further ardy, permitted presentment Colorado, Assembly grand jury. Dobbs, See General has also United States v. provided Cir.1975) (“A 445, 447 (5th avenue of from the coun- 506 F.2d dismissal ty determination. lack of cause at the prefaced by signal sufficiently analogous
these cases were support.” but to lend “cf" signifies authority supports (15 ed.1991). the “cited Blue Book 23 proposition proposition different from main
1267 lack of at the magistrate finds prevented the subse- hearing not have would hearing com- and dismisses the preliminary indictment.”); Bryson, 1 Beale & quent may defendant still be indicted plaint, the 6:41, § 6 Jury Law Practice Ch. and Grand offense” because and convicted for same (footnotes and cases cited therein at 243 procedure supersedes complaint indictment omitted) (“Double imposes jeopardy no bar 313, Hodge, v. procedure); People 53 N.Y.2d jury grand has to resubmission because 231, 234, 1060,1063 441 423 N.E.2d N.Y.S.2d that the evidence determined (1981) hearing (“though preliminary a results probable cause to indict the did not establish dismissal, prosecution] may [the in neverthe- preliminary determina- accused” and “[t]his obtaining in an at the less succeed indictment jury’s quite trial is different from the tion Jury”); People rel. hands of the ex Grand on the ultimate issue of the defen- verdict Close, 258, v. 152 Hirschberg 1 N.Y.2d innocence.”). guilt or dant’s 3, (1956) 1, 818, N.Y.S.2d 134 N.E.2d 819 magistrate (although proceedings under were by is further reinforced Our conclusion “[njevertheless, Jury act- defective Grand have, jurisdictions that more number of other depend ing powers within its did not own grand jury in- summarily, permitted or less authority authority could not be its hearing dis- preliminary after dictments by any previous magistrate’s hear- cut down See, e.g., City Long charge. De Anda v. 447, Mitchell, v. 42 ing”); Ohio St.2d State Cir.1993) (“a Beach, (9th 1418, 7 1422 F.3d (1975) (a 682, N.E.2d 684-85 329 preliminary hearing a has no dismissal sought may still after a defen- indictment be law”); preclusive under California Peo- effect discharged is on a dant Uhlemann, 662, Cal.Rptr. ple v. 9 Cal.3d 108 by magistrate). (“It (1973) 658, 609, 657, has 610 Thus, that, hold after dismissal magis- long been the in this state that rule county court for lack of following charges trate’s dismissal of options are faced three other does not bar the preliminary examination charges. People can: dropping than refiling either the same (1) appeal cause determination seeking in- magistrate or an before another (2) court; seek to file a direct to charges.”); upon dictment based those Wells subject the district court 745, 199, Stynchcombe, v. Ga. 200 231 S.E.2d (3) discretion; grand that court’s or seek a (1973) (probable cause determination 747 However, if the jury indictment. guilt not of the does settle innocence proceed choose discharge civil accused therefore dismissal, they can after the indictment); subsequent not bar State does simultaneously subsequently (La.1979) 103, Sterling, v. 376 So.2d 104 court’s determination. Prosecuto- (“discharge of a defendant pursuit rial of both courses of action would preclude the subse- examination does undue harassment and unwarrant constitute indictment, information, quent filing of an essence, oppression ed accused. offense”); against him for the affidavit same simply presentment Rubek, 537, State v. 220 Neb. 371 N.W.2d alternate route to (stating, context of probable cause determination. filing the district court after dis- second offense, charge identical court on III. majority “it rule appear would reasons, foregoing For the we reverse
throughout that an the United States exam- appeals and of the court of hold decision ining a defendant magistrate’s refusal bind jury in- prosecute refiling the identical over does bar by county after dismissal dictment ability rejecting charges” argument preliminary hearing for lack appeal county cur- court’s determination refile); right prosecutor’s State tails J., dissents, LOHR, Boykin, N.J.Super. 274 A.2d and KIRSHBAUM Div.1971) (“Even SCOTT, (Law JJ., join in the dissent. municipal if *12 dissenting: Lotspeieh Justice LOHR tective testified that Noline had a hope healthy delusional relationship presents This case the issue of whether the victim, with fantasy but that Noline’s People may prosecute by grand a defendant when he partially shattered confronted the previ- indiсtment after a unclothed victim in her bedroom after break- ously felony complaint charging ing removing into her home and his own People the same offenses because the failed clothes: probable to establish cause at a Q. right. you say All And when he hearing. granted The district court the de- mind, changed specifically his did indi- he fendant’s motion dismiss you cate to he changed his intentions indictment, holding did not things way or that in a worked out differ- comply P. 5 and that those anticipated? ent than he procedure rules of criminal provided two sole avenues relief from a things A. He stated had worked dismissal of criminal for lack of differently, out she because was now appeal, cause. On the Colorado him, She past scared. tried run and he Noline, of Appeals Court affirmed. grabbed said, her. going He “I’m not (Colo.App.1994). you.” hurt hit him in She the head awith shoe, high-heeled which caused his head to On certiorari review this the ma- bleed, caused a laceration to his head. She jority holds that the can seek indict- then ran out of the house via the front ment after a door, He, screaming then, for help. ran determination cause as an out back door. “alternate route” to a district court Maj. op. court’s decision. at 1267. Lotspeieh Detective reinforced this account procedure Because our rules of criminal pro- of the incident point during later route,” vide for no such “alternate and be- preliminary hearing: prior strongly our cases indicate for Q. Mr. Noline told [the victim] that he available, reasons that none is I re- her, going was not to hurt correct? spectfully majority opinion. dissent agree appeals’ interpreta- the court of A. Correct. governing law, tion rules and case judgment would affirm the of that court. See
Noline,
he?
I. No, A. he did not. 21, 1992, Raymond present any On chose not to June C. testimo- Noline ny by preliminary hearing. the victim broke into the at the victim’s home. Based on this ensued, conduct and the events that the Peo- Lotspeich’s After Detective testi- complaint against ple filed a Noline in the mony, presiding judge held the Peo- County Court, charging Denver one count of ple presented had not evidence of intent attempt degree criminal to commit first sexu- necessary attempted to sustain the first de- pursuant 18-2-101, al assault to sections 8B gree burglary sexual assault or counts. For (1986), 18-3-402, C.R.S. 8B C.R.S. reason, judge dismissed those counts (1986), degree and one count of second bur- for lack of cause but held that there pursuant glary 18-4r-203, to sectiоn 8B was sufficient cause to sustain (1986). C.R.S. At a hearing on trespass charge: 16, 1992, September support one witness in complaint. in, At the time the defendant broke it witness, That Greg Lotspeieh, Detective tes- had have purpose been of sexual- regarding tified ly his interview of Noline. assaulting De- victim. If he entered People, was to calm most favorable that his advances belief delusional doing her here that he wasn’t [sic] and tell welcomed, I not find that he do would her, and how I to hurt that’s viewed at the time of requisite intent had that.... I find that the defendant lacked *13 I further do not entry premises. the into intent, my that was rul- requisite and violently to that had the intent find he ing. require- any of the other assault or meet I find that he assault. ments for sexual ruling, In view of the thé liaison, is in a sexual one that went explicit People options two under this had per- one which a reasonable delusional and maj. procedure. court’s rules of criminal See expect. son would not First, they at could op. pursuant decision to interpretation of the I don’t find that his 5(a)(4)(IV). Second, they could file Crim. P. reasonable, not to is but I’m here facts pur- a direct information the district court or I’m here to decide whether decide that. 5(a)(4)(V) they if could to Crim. suant committed a crime not the defendant good that “evidence exists which for establish req- accompanied conduct that was prosecutor presented at was intent, I find that uisite don’t preliminary hearing.” Crim. P. requisite intent was there. 5(a)(4)CV)-1 However, in- chose intent to enter I find that there grand jury to a present stead to matter premises permission of the without the day, and then to move for dismissal next prem- upon count, that and to remain trespass homeowner which the of the criminal first-degree granted upon I find that it fits tres- ises. district court based jury’s burglary I it fits of Noline on aris- pass; do not find that ing episode. out of the same attempted assault. sexual recess, judge explained the presented very After a basis evi- The different maj. op. admittedly grand jury. But see at for his reluctant decision: dence to the (“Although the testified before victim only offered The evidence testify grand jury and at the did regard that offered with to intent was dur- hearing, People do not assert preliminary hearing, in ing the which the preliminary evi- they presented that additional new have con- believed he would defendant present- that was dence to the sex, pur- for that and he entered sensual court.”). ed .... pose I found that the evidence victim, testimony by gave who heard regard intent offered involving Nоline that account of the incident to commit a showed a lack intent dramatically comparatively from the differed crime.... benign of events to which Detective version Lotspeich at the hear- testified ing. The victim testified: evidence, right up ... to the From said, you doing my A. “What are point right up point which — immediately across He bounced house?” him, he believed which she confronted grabbed by the floor and me bedroom succeed; right up to that going he was anything. say didn’t It was wrists. He point at which he point. And that was, though. what his intent real obvious proceed, he going to realized he wasn’t grabbed my He both wrists. attempt then to force himself made no her; The state- upon Q. you none whatsoever. did—how would describe What you by the arm as lead to be- grabbed ment he her his demeanor would determined, were? light lieve his intentions by, I what she went following 7(c)(2) 7(h)(4) provide lack like alter- 1. Crim. refiling in the event direct hearing. natives of is dismissed for filed in district court say anything just A. He —he didn’t cause determination —he grabbed filing me. And it seemed —he was or a of a direct information getting naked. He had waited until I was and that the had new pur- It was his undressed. obvious that evidence without show- pose rape me. was to ing of granted Noline’s motion dismiss, People’s based on the fаilure to Q. happened you hit him [after What appeal, adhere Crim. P. 5 and 7. On your shoe]? Appeals Colorado Court of affirmed the dis- Well, A. there —I had a knife that I *14 trict court’s jury dismissal of the in- keep I on the other side of the bed. was Noline, dictment. at 5. Relying P.2d on on wrong the side of the bed from it. I our procedure, rules criminal the court of get tried to over crawl the bed to it. He appeals held: grabbed again from I me the back. decid- People [O]nee fail to establish the exis point away ed at that I get could from tence of cause to believe that a got door, him.... IAnd out the bedroom offense, defendant has committed an such get kept and tried to down the He hall. subjected a defendant cannot be to subse hang trying to on to me from behind.
quent refilings, People unless the can dem onstrate the existence additional evi previously dence not Q. good considered during [for was he Where this whole cause]. you attempting proceed time were [that to thirty feet from the to bedroom review, Id. at On certiorari majority front door]? now holds that “absent a rule or statute to literally I dragging A. was him down contrary, People precluded are not the hall. I was —most of I the time was on pursuing from the course of аction taken my trying hands and knees. And he was here,” maj. op. 1266, at and concludes that hang me—on keep on to to me and me “presentment simply doing from that. alternate route to an appeal county determination,” maj. cause Q. you, he hanging When was on to op. disagree. at 1267-1268. I part body your hanging what was he to? II. hips.
A. The waist or the agree majority with the that “[a]s accu- Q. you? Did make he statements to rately by set out appeals, court Yes, A. did. he procedure explicitly rules de- two scribe courses of action can Q. say? What did he take after a complaint has been dis- said, A. “I He could sure use some missed proba- lack of cooperation.” Maj. First, ble op. cause.” at 1260. the Peo- ple can testify The victim continued that Noline’s cause determination to the district court. “quite clear,”
intentions were “[h]e 5(a)(4)(IV); maj. op. Crim. P. at 1260-1261. had broken rape into house to me.” The Second, can seek to file a direct attempt indicted Noline for the district court. Crim. P. degree commit first sexual assault and for 5(a)(4)(V); maj. 1260-1261; op. burglary, at see specifically relying Crim. on the victim’s 7(c)(2). Furthermore, People may account P. objected by of the incident. Noline filing a file a motion dismiss with the direct information in the district claiming not com- after a count has had been dismissed plied procedures for an of a court unless “the information [is] ac- provided parties with suffi- tices but has statement eompanied a written procedural options.3 cient alleging facts establish prosecutor exists which evidence My support precedent position finds prelimi- at the prosecutor disagree of this and I further with the 5(a)(4)(V); see nary hearing.” Crim. interpretation of majority’s belabored our 7(c)(2).2 maj. op. at analogous case law. See 1261- majori- However, 1265. In Holmes v. District Court Sum- agree with the I cannot 11, (Colo.1983), County, 668 mit P.2d ty’s refile conclusion that felony complaints through option” or “al- court dismissed an “alternate “specifi- against two defendants for lack of rules route” that our do ternate maj. “made tactical cally permit,” op. at not to call the informant as a witness simply rules “do not foreclose decision because those hearing.” The district taken the course action ease,” maj. op. legislature attorney subsequently obtained district court 1263. The permission charges by procedures refile the identical explicitly provided “[t]he *15 felony in that court on the complaints in the coun- informatiоn based governing filed attorney’s assertion that the infor- ty ... shall in accordance with and district court be testimony would constitute new and required applicable provisions the mant’s as of a procedure promulgated additional evidence. This court issued rule the criminal rules of § to cause later made that rule abso- supreme the of Colorado.” 16-5- show court (1986) added). lute, 101(2), thereby reversing the district court’s (emphasis C.R.S. 8A case, filing charges. comply permit to the People In the did not with decision “[wjhen 5(a)(4)(IV) county the court P. P. We held that dis- either or Crim. Crim. 5(a)(4)(V), complaint holding a respectively provide that misses a which preliminary hearing pursuant to Crim. P. upon determination of lack a 5(a)(4)(IV), remedy to the sole available people permission of the ruling prosecution requesting is the district court refile direct to to charging court file a direct information court district district 7(c)(2).” at with Id. 13- after show- accordance defendant with the same offense (footnote omitted).4 14 ing good “[t]he We stated that evidence exists which for attorney candidly admits he made a preliminary was not at the hear- to not to call the informant and ing. permit parties not craft tactical decision We should proce- subjеct him to The Peo- cross-examination. their own “alternate” rules criminal [defendants], 1265, dure, 1267, ple, than must bear maj. op. when this rather at see at prac- of that decision.” Id. 14-15. explicitly forbidden such burden court has appealed Similarly, Assembly pro- to that order to 2. chose have General refiling so, hibit before second they having cannot recom- Not done showing People absent a defendant, irrespective prosecution mence subsequent evidence discovered additional prosecution, for such with- the means chosen grand jury’s decision not to indict: initial they possess demonstrating out further evi- true has returned a no bill Once previously considered dence transaction, transactions, upon a set of based they admittedly [for cause]. Because event, events, grand jury inquiry into the demonstration, make trial failed to such transaction or events shall not initi- same prosecu- prohibited properly further their finds, proper upon ated unless defendant.’’). tion of attorney, showing prosecuting prosecuting attorney has discovered additional inquiry. evidence relevant to such remedy appeal was 4.The alternative 16-5-204(4)(e), (1986); § C.R.S. see also Peo- 8A proce- part adopted as of our rules of criminal 1, Noline, (Colo.App.1994). ple 894 P.2d 3 v. See Crim. until after Holmes decided. dure (1995 5, Supp.) (noting that the rule 7B C.R.S. Noline, 1, (Colo. People 5 See 894 P.2d 3. also v. 31, 1988, January was amended March effective ("If App.1994) considered the 1, erroneous, 1989). they could court’s dismissal to be 1272 sanc- for our decision was that the evidence was available. Id. This court
The basis
re
jected
refilings
requiring compli-
People’s
amounting
tactic as
tioning of
without
apple,’” holding
“‘consecutive bites
procedure
of criminal
ance with our rules
prosecu
(1)
that the remedies available to the
encourage
present
as
would
when
tion
a case is dismissed in the
possible
preliminary
at
little
as
evidence
court for lack of
are
limited
hearings
providing
with
procedures
to those
for which our rules of
(2)
apple,
security of two bites at the
unnec-
procedure explicitly provide.
criminal
Id. at
judicial
essarily
already
tax
strained
re-
judge’s ruling).
(quoting
453-54
trial
(3)
sources,
subject
unfairly
the accused
discrimination,
oppression and
create
Holmes, Freiman, and Thomas and the
comply
little incentive for the
procedure upon
they
rules
which
governing
hearings.
the rules
importance
are based reflect
that we
agreе
appeals
Id. at
the court
15.
preliminary hearings.
have attached to
A
applicable to
that Holmes is
the case at hand.
early
is an
screening
Noline,
maj. op.
894 P.2d at
But see
impartial judge
device conducted
before
1262,1264-1265.
assure that
those
rising
has evidence
to the level of
appeals’
The court
decision
this case
permitted
proceed
cause shall be
County
also
accordance with Thomas v.
Holmes,
15;
E.g.,
to trial.
668 P.2d at Maes
Court,
(1979),
198 Colo.
1273 (“We cases, some as for acknowledge that III. Burke, prosecution to example permit from majority relies on decisions also by grand jury partially proceed support jurisdictions to its conclusion other appeal lies the trial the basis that no from addi- showing of new or absent a that even cause.”), 24 finding no court’s previously pre- evidence that was tional (“In Colorado, Assembly has the General grand jury indict- for sented appeal the coun- provided avenue of from permissible after ment is probable cause ty court’s determination. charges for Nevertheless, criminal of the same dismissal a rule we believe absent Maj. op. contrary, at 1265- are not lack or statute to the agree appeals’ pursuing of action precluded with the court course 1267. here.”). majority’s Accordingly, per- cases tаken that these “are determination jurisdictions other reliance on cases from stat- manner which our as suasive provide appellate review is do not such interpreted.” No- and rules should be utes maj. op. at misplaced. See line, P.2d 894 at 5. Second, majority mark- overlooks the First, provides ap- specifically for Colorado power juries edly grand different role and judicial review of a dismissal pellate system applying federal federal for cause. See charges lack of question to the easelaw Colorado 7(h)(4); 5(a)(4)(IV); § 16- Crim. today. majority us procedure before (1986 12-102, Supp.). In 8A & 1995 C.R.S. proposition several federal cases cites jurisdictions provide that do not those body unique is a that “the review, previ- appellate resubmission of such characteristics, indepen- unique some of an ously nature,” maj. op. at such that dent remedying may method simply an grand jury is “presentment to the judicial a lack of improper determination of to an alternate route Commonwealth, probable cause. Burke determination,” maj. Mass. N.E.2d Colorado, 16-5- op. at 1267. section (“Where, here, as lies from (1986), 204(4)(k), 8B C.R.S. allows decision, is the Court District indictment of “dismiss *17 to ensure that the criminal mechanism ... jury if such court finds distriсt correctly.”). proceeding has terminated been not jury finding probable cause is grand cases, Otherwise, would leave class of “[i]t ap- court of supported the record.” The crimes, lost many involve serious pro- highlighted importance of this peals any appellate to further either vision: For exam-
review.” Id. 365 N.E.2d
813.
proce-
system, unlike the
the federal
[I]n
Commonwealth,
in Burke
ple,
v.
16-5-204(4)(k),
by §
dure established
therein,
applicable
laws
cited
state
cases
authority
go
court has no
behind
appellate
provide
not
review
did
jury
to determine wheth-
grand
indictment
finding
probable
of a lack
such indictment is based on
er
cause;
The Supreme
N.E.2d at 814.
Judicial
consti-
Id. 365
return
prob-
its
Burke limited
tutes a conclusive determination
Court Massachusetts
Hence,
[United
right
able
exists.
holding
that “absent
decision
determination
States] [Commissioner's
determination
appeal
adverse
grand
preempt
contrary cannot
cause,
jury
may
grand
prosecutor
seek a
jury’s function.
(empha-
N.E.2d at 814
indictment.” Id. 365
added).
specifical-
Colorado law
sis
Because
Noline,
(citing
at 5
United States
right
(10th Cir.1972)).
People with the
ly provides the
In
Kysar,
route to where determination subject
itself is
IV. ease, chose not to cause determina- pursuant
tion to the to Crim. 5(a)(4)(rV), oral and the asserted at they attempt
argument before us that did not pursu-
to refile the in district court 5(a)(4)(V)
ant to because the “re- why
quirement that we show
had not new before [the evidence] problematic.”
... I would hold that the
procedure per- followed procedure, our
mitted rules of criminal reasons,
and for aforementioned re-
spectfully majority dissent opinion. SCOTT, JJ., join in
KIRSHBAUM and
this dissent. TITLE,
In the Matter of the BALLOT CLAUSE, AND
TITLE SUBMISSION
AND SUMMARY FOR THE PRO-
POSED INITIATED CONSTITUTION-
AL AMENDMENT “1996-3” ADOPTED 3, 1996,
ON APRIL AND MOTION FOR
REHEARING DENIED ON APRIL ARMSTRONG, Petitioner,
Vickie *18 O’TOOLE, Fogel,
Neil Marshall Garcia, Respondents,
Roman Poole, Lennahan,
Carol Rebecca Westfall, Setting
Richard Title
Board, Respondents.
No. 96SA153.
Supreme Colorado, Court
En Banc. 10, 1996.
June notes jury grand review the district sealed, which are can be at released historically cause determination which appearing court's discretion. Id. be- Witnesses review, 16-5-204(4)(k), subject § was not 8A request copy fore the can also (1986); (2) C.R.S. barred reindictment unless the 5—204(4)(h), testimony. § their 8A C.R.S. 16— prosecution proper showing a made dis- (1986). trict court there was additional evidence inquiry, 16-5-204(4)(e), § relevant 8A VI, 7. Under article section 21 of the Colorado (1986); C.R.S. barred the Constitution, empowered “pro- have been using grand jury system discovery as a mulgate governing practice procedure rules already charged tool if the defendant had been information, indictment, civil and criminal cases.” complaint, 5—204(4)(h)(i)(I), (1986). § 8A C.R.S. ad- 16— 1261 comprised charge of first de- complaint one informa- filing of the direct for the perjury that was identical to two of the gree tion. charges. new No evi- previously dismissed 7(c)(2) prose- reiterates Grim. P. attorney by the was submitted district dence information can file direct cutor held court. We if: attorney not take such action: could held Either a indictment has been dismissed Once the did probable cause and the court found lack the district court for with- or the case was dismissed exist jurisdiction court lacks being preliminary hearing held.... out without address the accompanied shall be court, upon a permission of the district prosecutor from the a written statement showing new or additional evidence. that evi- alleging facts which establish Colo, Thomas, P.2d at 770. good which for cause was dence exists interpretation on our This decision was based pre- prosecutor 16-5-204(4)(e), (1978), of section C.R.S. twenty days of liminary hearing. Within provides: following appearance first defendant’s request may filing the direct defendant jury no has returned true Once prosecu- evidentiary hearing at which transaction, upon a set trans- bill based the existence of tor shall establish actions, event, events, in- filing of direct informa- cause for the quiry into the same transaction events tion. finds, unless the court shall not be initiated showing by prosecuting upon proper Hence, statutory provi- or constitutional