People v. Rickard

language continue in the notice and would allow the agreement accept back rent and Housing delinquent Authority to mislead the lease. tenants. Housing Authori- present In the 6, 1985

ty Duran on December advised Accordingly, I would and remand reverse that: hearing. for a further you sorry to have to inform areWe say I am authorized to that Justice VOL-

that, fully paid, unless this rent is within joins LACK in this concurrence. (14) days from the date of the fourteen you, delivery of this notice to or to the occupy

premises you now as a tenant Authority Authority, the intends to your and cancel month to

terminate hope surely you

month lease. that We payments up make the rent

will owe,

you you so that can remain in your unit. Colorado, PEOPLE added.) (Emphasis Plaintiff-Appellant, complied Duran with that notice on De- 19, 1985, by making timely, abso- cember RICKARD, D. Steven lute and unconditional tender that evi- Defendant-Appellee. per- present ability intent and denced Although produce not form. she did No. 86SA386. trial, Housing Authority’s money at Colorado, Supreme Court unequivocal rejection of her offer made En Banc. unnecessary. actual tender See Gerbaz Hulsey, 132 Colo. 288 P.2d 357 Sept. (tender is not where it would be thing); idle useless Kammert Brothers

Enterprises, Tanque Plaza Inc. v. Verde

Co., 102 Ariz.

(actual it is unnecessary tender is where party accept

clear that will not

it). payment therefore

Duran’s tender of timely acceptance Housing

was a lease,

Authority’s offer to continue Duran’s

and, Marshall, under Merkowitz and agreement

parties’ to continue the lease Housing proceed- Authority

bars the from

ing Al- with its action to evict Duran.

though a notice and demand to Duran dur-

ing pendency of this action was

necessary, Housing Authority should the notice that

be bound the terms of

was served Duran. To hold otherwise meaningless. render

would the notice

Housing Authority could advise its delin-

quent during tenants eviction upon they could continue their leases rent, past due tenants

tender and evict complied demand. the notice and give plain result

Such a does not effect Chapell, Deputy Dist.

Robert A. Chief Hower, Deputy Atty., Atty., John A. Dist. Littleton, plaintiff-appellant. for P.C., Bruno, Colin, Bruno & Louis B. Bruno, La- Coyle, Michele M. James C. wonn, Lakewood, defendant-appellee. ERICKSON, Justice. prosecution appeals dismissal April grand jury indictment. On returned four-count against respondent D. Steven

indictment to dismiss the Rickard moved Rickard. claiming indictment required by jury proceedings attorney the district was breached 6.2 grand jury investigators. The granted and dismissed the the motion court indictment, finding investigators violated Crim.P. 6.2 and by dis- grand jury instructions court’s during grand closing information obtained proceedings. reverse and remand We directions. I. employed by Denver

Rickard was He also owned and Department. Police companies, Security Police operated two Service) Den- (Security and Metro Service (Metro Denver). Security Auto Service ver off-duty police officers to scheduled Service shopping security services two perform Company by Trammell Crow owned centers billings prepared by (Trammell). Based Rickard, Security paid Services Trammell single nances, 54-419, check for 55-176, with a services rendered 55-186(a), police off-duty towing procedures. Denver Security several officers. Ser- receipt vice’s check per- one for work Based on the overbilling of Trammell formed several different officers violat- $8,453.54 and improper operation Rickard’s ed section 114 of Depart- the Denver Police Denver, of Metro a four-count Manual, Operations ment April was returned 1986. Rickard was pay individually. Trammell officers charged in two counts violating section 18-4-401, (1978 attempted Rickard to conceal his evasion of C.R.S. Supp.) & 1985 (theft), and in two counts for by signing section 114 violations of the name Brook 18-8-104, (1978 section 8 C.R.S. & 1985 Baldridge paychecks given to individual Supp.) (obstructing officer). police Rick- officers off-duty During for their work. ard moved to dismiss the indictment assert- $26,293.79 Rickard received in net ing that, prior grand jury’s delibera- income from Trammell security based on tions, of the jury’s- pro- allegedly However, services he rendered. ceedings by prosecution was breached the indictment per states that at $13.50 on at least two occasions. The first breach impossible hour it physically for Rick- Johnson, involved Officer John C. who tes- $17,840.25. ard to receive more than 28, 1986, tified that on March he was inter- operated Metro Denver a tow truck at rogated by grand jury investigators Cap- properties. one of Trammell’s in- Rickard tain Sergeant Steve Jeffries and Daniel formed the Ethics Board of the Denver Yount. He stated that the investigators Department Police that the truck would be exhibit, showed him a jury a check provide used jump to starts and to $781, and told him that other witnesses open patrons locked vehicles for and Tram- testified differently than he did about the mell employees. granted The Board Rick- check. The second incident involved a con- company permission ard and his to own and versation between the defendant operate (Azar), specified pur- truck for the Yvonne Azar district attor- poses, ney. expressly prohibited Azar but revealed what Metro Den- had been told to by her in confidence providing towing ver another from district attor- services. Metro ney; specifically, grand juror that a Denver asked impounded nevertheless towed and Johnson whether Johnson’s memory was illegally parked several by vehicles owned impaired by mind-altering drugs. patrons of one of shopping Trammell’s cen- ters. The automobiles were returned to The district court dismissed the indict- their ranging owners after fees from to ment, $10 concluding prosecution vio- paid were $50 to Metro Denver. Metro lated Crim.P. and the court’s instruc- Denver’s towing conduct violated ordi- jury1 by tions to the disclosing infor- The court’s pro- opportunity instructions to the apprehend person to indicted part: vided in relevant opportunity before he or she has had an to jurisdiction you 8. The solemn flee the oath that of this have taken and Court. require you keep your the law counsel, to That impor- secret own matter of is of further your jurymen, and that of fellow tance in that there should not be disclosed to touching your present public service. You investigation any have al- individual ready promised your found, that in all indictments where a true bill has not been you truth, present truth, will injury the whole might reason of the fact that result to nothing Having person but the truth. taken such having such from the mere fact of his oath, requiring you connection, a solemn investigated by and the law you. to been In this secret, keep your proceedings important emphasize under no cir- it is that it is as much you divulge innocent, anyone your duty cumstances should as to indict room, place your jury what has taken probably guilty, protection ei- those by disclosing ther any unjust prosecution name of witness requires innocent from appearing appeared who you, you protect or has injury before that might them from the subject public matter of his or her knowledge any testimo- result from ny, any person being person the name of suspected who is has ever been even of a investigated, and whether or not a true bill crime. any particular reasons, has been very found in you keep case. It is For obvious are to highly important every subject true given bill shall be secret the matter of the evidence kept give secret in you by your order to the authorities an witnesses and communications pub- indictment is made such time as an grand jury’s from the mation witness, returned, lic, Rick- Johnson, grand indictment is or until a indictment, dismissing report dealing is issued ard. findings as to wheth- Nothing made no factual investigation. court in this rule prejudiced the disclo- Rickard was general er prevent a disclosure of the shall sures.2 investigation purpose grand jury’s prosecutor. long-established poli rule embodies the II. grand jury proceedings should be cy that the court prosecution asserts secrecy. maintained See United States dismissing the in- discretion abused its Johnson, secrecy. on the breaches of dictment based (1943)(grand jury 87 L.Ed. 1546 that the disclo- concedes “indispensable”). proper secrecy is “[T]he presented of evidence sure grand jury system de functioning of our to Rickard was a violation jury Azar pro pends upon secrecy 6.2(a), contends that there were but ceedings.” Douglas v. Petrol Oil Co. grand jury secrecy. breaches 211, 218, Northwest, 441 U.S. Stops secrecy agree only that the breach of We 1667, 1672, In S.Ct. occurred when Azar disclosed Court, 187 Granbery v. District Colo. testimony to Rickard. (1975), tempered appli 531 P.2d 390 we by stating secrecy of the doctrine cation A. secrecy’s “[sjecrecy for sake should no Rather, 6.2(a) longer Rules of rule in Colorado. Rule of the Colorado be the provides: secrecy of the wall of around Criminal maintenance grounded grand jury testimony should be persons All with a associated upon reason.” 187 Colo. at sound investigations or functions should and its (quoting Parlapiano at 393 v. Dis P.2d is at all times be aware that Court, 491 P.2d 176 Colo. trict body, proceedings of investigative an (1971)). per “When disclosure kept which shall be secret. Witnesses discreetly done and limit- mitted it must be investigation persons should be under compelling need out edly, only when a privately to insure fairness. dealt with countervailing policy of secre weighs until secrecy shall continue The oath Lewis, And, fact, [People you said in the Lewis case are with each other. (1973)]: "The Court’s respect secrecy all matters with maintain Jury including on how investigating, [its] instructions to the Grand you the fi- are by you. investigation conducted were de- any should be true bill nal determination of addition, orderly development signed to assure an read Crim.P. the court digni- presentation in a calm and of evidence grand jury. they atmosphere; were not intended fied judge stated: investiga- 2. The trial open permit forum in which the case, particular in which this issue, tors at, [in larger looking perhaps, and I I’m unfortunately] attorneys, as ad- acted spe- disagree argument won’t procedures set forth in the effect, vocates. indi- prosecutor to the as I have cial rights Judge’s were to instructions earlier, particular point in this at this cated investigation, and necessar- ... of those under any particular not have been there against ily to work [to the] [not] prejudice against probability However, the defendant. investigation protect the [and under those innocent]_” possibili- the breach is that because secrecy’s go ty, back to I think we Lewis, at (Quoting at 516 P.2d 183 Colo. meaning of the Grand sake falls short of added). 418) (emphasis Jury process, of Jury process. The Grand disagree made a parties whether the court necessity, totally secret. must be prejudiced finding Rickard was not factual particular principle is delineated When that order, As we read the misconduct. presiding Judge Grand in detail die finding Jury, no factual trial court made Jury the Grand it his instructions to solely upon the fact prejudice based any breach but inferred more serious that makes it even grand jury’s was breached. Kelley drastically. As Justice be dealt with Id., June, Johnson, however, at 531 P.2d at 392.3 in cy.” 187 Colo. 1985. testified only pre jury secrecy is intended before the that he had not transpires or disclosure of what will vent during May worked for Trammell and June grand jury. transpire before See During interrogation, of 1985. the in- 531 P.2d at Granbery, 187 Colo. vestigators asked Johnson about the check 393. parts of his jury testimony. They him did not tell the check was a B. grand jury exhibit. He was informed that testifying Prior to his before the least two other witnesses had interrogated by grand jury, Johnson was differently testified than he The in- had. jury investigators, were who members vestigators did not disclose to Johnson the Department’s the Denver Police Internal identity of the witnesses or the content of testifying Affairs Bureau. After before testimony.4 They the witnesses’ warned interrogated Johnson was perjury Johnson that a conviction under by grand jury investigators Jeffries -509, (1986), sections 18-8-501 to 8B C.R.S. investigators Yount. The asked Johnson testimony that a defendant’s personal check which Rickard is- about testimony contradicted two sued him in the amount of $781.20. They might witnesses. told him that he produced cancelled check later for the job perjury lose his and be convicted of grand jury by alleg- Rickard. The check change edly he did not his before the paid by that Johnson was established Rickard for services rendered to Trammell reconvened. Johnson never Losavio, during ex rel. Jr. v. J.L. identified five ert Watson residence the PGA Tourna- 1985; grand jury proceed during throughout reasons for the ings: ment the course subsequent interrogation, frequent of this ref- (1) copy my grand jury prevent escape erences were made To the to a those whose in- (2) contemplated; testimony dictment and to insure that when I left the Internal grand jury Investigation the utmost freedom to the deliberations, its Inspections and Bureau on prevent persons subject 28, 1986, and to my impression March it was distinct importun- to indictment or their friends from by Investiga- from what had been said to me jurors; (3) ing grand prevent suborna- tors and Jeffries Yount that at least one other perjury tampering tion of with the witness person grand jury before the in addition to may testify grand jury who before [the] the Defendant Steven Rickard had testified it; appear later at the trial of those indicted substantially differently than I had and that encourage free and untrammeled dis- perjury charges shortly forthcoming would be by persons closures who have information me; against that this interview and the cir- crimes; (5) respect with to the commission of surrounding cumstances were im- same the innocent accused who is exoner- mediately reported my attorney Robert ated from disclosure of the fact that he has Dill. investigation, been under pense and from the ex- hearing alleged At the on the breaches of standing trial where there was jury secrecy, Johnson conceded that he probability guilt. identity was never told of the witnesses who 23, (1978) (quot 195 Colo. 580 P.2d 28 testimony. contradicted his He inferred from ing United States v. Indust. Chem. Amazon questions investigators that one of the (D.Md.1931)); Corp., 55 F.2d 254 see also Gran witnesses was Rickard. He said that at no time bery, 187 Colo. at 531 P.2d at 393. during interrogation investigators did read grand jury testimony to him of other wit- affidavit, 4. In his Johnson claimed: nesses. He could not recall whether he was investigators That said advised me that oth- specifically investigators told that other er witnesses before the at least testimony concerning witnesses contradicted his number, differently two in had; had testified than I building. his work at Trammell’s office He was grand jury considering was investigators certain informed him that oth- filing peijury charges against I me and that testimony er witnesses contradicted his cerning con- approximately voluntarily had two weeks to presence his at Watson’s residence. He grand jury my return to the and to "correct” grand jury testified before the that he had not testimony; earlier that the Defendant Steven provided security for Trammell at its office differently Rickard had testified than I had June, 1986, building during May regarding and that the above-referenced check in the Watson, $781.00, supervised differently regarding my he the children of Robert sum of off Crow, duty security partner during building in Trammell work at an office senior differently regarding my presence at the Rob- PGA tournament.

193 grand jury. testify changed jury his fore the Azar did not grand jury. charged perjury. with In view the reasons for Hackenbach’s disclosure of confi secrecy, we conclude that the conduct jury grand jury to Azar did dential information investigators grand jury neither violated grand jury only secrecy. not violate Since nor the instruc prosecutors ordinarily appear one or two Johnson, questioning In the investi tions. grand jury, provision before must be only parts of gators disclosed Johnson’s made, practical necessity, as a matter testimony; they revealing any avoided own attorneys for disclosure those to other specific information about prosecutor’s 1 members staff.5 W. gave proceedings. Additionally, they jury Israel, LaFave & J. Criminal modify opportunity his testi Johnson (1984). jurisdictions Most disclo 632 allow being mony charged perjury. to avoid sures of information to mem bers of the staff without purpose investi Id.; 1 Wright, order. C. court Federal gation to discover enable facts that will (1982 Practice and Procedure 107 & § grand jury to for determine whether see, Supp.); e.g., v. United States charges mal should be filed. v. See Cir.1987) (10th F.2d Kilpatrick, 821 146-47, Maestas, 199 Colo. 606 P.2d 6(e) (Fed.R.Crim.P. permits employ federal (1980). questioning 851-52 John jury assisting grand prosecutor to ees ac son, investigator to insure endeavored cess materials without court only reliable evidence was before the provided order the materials are used to charges against and that the government attorneys enforcing assist supported probable Rickard were cause. — laws), U.S. —, aff'd, federal criminal investigate (purpose is to Id. (1988); indepen possible offenses and as an to act Cook, (10th United States 794 F.2d 561 protecting innocent from dent barrier Cir.1986), denied, cert. Court, prosecution); Gher District 93 L.Ed.2d S.Ct. Since (grand attorney Azar was a accusatory body acts not as but also office, grand prosecutor’s jury information facts, investigative body). Under the to her could be disclosed without a court investigators of the not the conduct did potential The fact that order. she was secrecy grand jury. the breach of the is grand jury dispositive witness be grand cause she never testified before the C. was, however, Azar jury. improper It Hackenbach, chief David W. the grand jury the defendant that the to tell attorney in the Denver District At- drugs. questioned Johnson his use of about office, torney’s told a member of Azar that conclude violated We therefore that Azar grand jury had the had asked Johnson disclosing secrecy grand jury the of the “mind-altering drugs” caused taken that How confidential information to Rickard. listed memory. him to lose his Azar was ever, of the issue is whether dismissal the grand potential the as a witness before grand on the of indictment based breach her on jury and Hackenbach admonished an jury secrecy was abuse of discretion. under an oath two occasions she was secrecy of not to disclose the information III. Despite admoni- anyone. Hackenbach’s Lewis, tions, on People informed of the In reliance v. Azar Rickard (1973), P.2d Rickard question after be- juror’s Rickard testified Investigators." only per- January Jury The order trial court issued order dated 5. The an grand jury acquired permitting materials before the tained to certain grand disclosure to, alia, Attorney, jury on 1986. Testi- "District convened March materials duly inter the jury mony the was not deputies, the Dis- elicited before sworn members of [and] Attorney’s sworn in as the order. trict staff who have been covered jury judge’s in ses- forth in the instructions were to that while claims rights that violates those under any investi- sion breach deviations, court’s instructions gation, 6.2 and the such as shown prejudices the here, necessarily prejudice work to the of the indict- justifies dismissal system and investigation. those under ment, though defendant was not even (emphasis 183 Colo. at 516 P.2d prosecutorial misconduct. prejudiced by the added). view, of the indictment is In dismissal our in The conduct violations of warranted improper this case was but did not warrant prejudiced by secrecy if the defendant was factual dismissal of the absent improper disclosures. findings prejudice to Rickard. The mis showing prejudice by An affirmative justify conduct not so severe as to was necessary justify dismissal defendant is presumption we made in prosecutorial indictment based an investigators Lems, Lewis. Unlike the in grand jury. See misconduct before prosecution in this act in case did not (Colo.1980).6 People Meyers, information, role, dual but did disclose al Lewis, upheld the trial In we ready to outsid known finding based on court’s Israel, supra, & J. ers. See W. LaFave miscon- serious nature (courts discussing 329-30 breaches Lewis, grand investigators, jury In duct. have oath, not under acted dual who were suggested flagrant that even the most vio prosecutors and witnesses inter- roles as purposeful press— lation—a leak to the making rogating grand jury witnesses and dismissing justify would not an indictment grand jury. The defend- comments to the since the violation itself would not create a grand jury’s in- ant to dismiss the moved prejudice). likelihood of The reasonable granted and the trial court dictments fact that the disclosure violated instruc prosecution appealed, con- motion. dispositive tions is not tending court erred trial because simply the issue. The instructions reit the defendant had made affirmative secrecy requirement of Crim.P. erated showing affirming prejudice. the tri- per their violation not a se court, stated: al we process. prosecution’s denial due The court’s instructions not, the instructions did failure to follow investigation on how its should be con- Lewis, prevent orderly development “an designed ducted were to assure an order- presentation evidence in a calm and ly development presentation of evi- dignified atmosphere.” 183 Colo. at dignified in a calm and atmo- dence 516 P.2d at sphere; they permit were not intended to per urged by rule Rickard would open investigators forum in se which the procedures require all violations of acted as advocates. The set Annotation, breached, Israel, see, grand jury secrecy supra, But Pres 6. When is state at 322. 6(d) by virtually in ence Persons not Rule and federal courts are unanimous Authorized of of During requiring showing prejudice Ses an affirmative of to Federal Rules Criminal Jury Warranting as Dismissal the defendant before the indictment will be dis sion Grand Indictment, Israel, (1984 supra, 798 & 1987 missed. 2 W. LaFave & J. 68 A.L.R.Fed. 322-23, 329-30; see, (most presence e.g., Supp.) Kilpa federal courts treat United States v. — trick, (10th Cir.1987), during grand jury pro aff’d, persons 821 F.2d 1456 unauthorized ceedings, 6(d) -, of Fed.R.Crim.P. as U.S. (1988); 108 S.Ct. 101 L.Ed.2d 228 in violation McKenzie, grounds to set aside indictment with United States v. 678 F.2d 629 sufficient Annotation, (5th denied, Cir.), showing prejudice); Pres cert. 103 S.Ct. out a 459 U.S. (1982); During Persons 74 604 States v. ence L.Ed.2d United Unauthorized Indictment, Stone, (9th Cir.1979). Affecting Jury Proceedings Prejudice 633 F.2d 1272 Grand (1983 Supp.) (jurisdic significantly infringed 4th 397 & 1987 exists if the misconduct 23 A.L.R. showing split upon jury's ability re to exercise inde tions quired whether pendent judgment justify based dismissal or if the misconduct influ persons during presence grand jury's decisionmaking enced the function. of unauthorized 1475; grand jury proceedings). Kilpatrick, 821 F.2d at 2 LaFave & J. W. LOHR, J., part indictment. concurs in secrecy require dismissal of an part. in dissents impose prepared so strict We are grand jury proceedings. The rule rule on C.J., KIRSHBAUM, J., QUINN, Supreme articulated the United States join in the concurrence and dissent. in v. United Court Bank Nova Scotia LOHR, Justice, concurring part in — States, U.S. —, S.Ct. dissenting part: (1988), applicable L.Ed.2d 228 is to the agree majority I with the that David W. facts of this case. When errors that are Hackenbach’s disclosure of in- raised, dimension are not of constitutional Azar, formation to Yvonne a member of his analysis provides a harmless error staff, did not violate Rule proper Dismissal of an criteria review. 6.2(a) of the Colorado Rules of Criminal grounds is indictment on the agree I Procedure. also that Azar’s disclo- appropriate only “if it is established defendant, sure of this information to substantially influenced the violation Rickard, D. Steven violated indict,” grand jury’s if decision there grand jury. Contrary majority, “grave grand jury’s is deci doubt” however, I would hold that a breach of substantially sion to indict was not influ grand jury secrecy also occurred when the Id., enced the violations. 108 S.Ct. at grand jury investigators confronted Officer Mechanik, (quoting United States Johnson with news that at least two 938, 945-46, other witnesses had testified differently Finally, than had I Johnson. (1986)). The determination of agree cannot that dismissal of a grand jury secrecy whether violations of secrecy justified indictment for breach of is accused, prejudiced the and was not harm only prejudice to the defendant is affirm- error, depends upon less the facts in each atively Accordingly, I demonstrated. the facts of this it is case.7 Under would reverse the trial court and remand difficult conceive how Rickard would be for a either in- determination whether prejudiced by the made disclosures to him. stance of disclosure of confidential However, that issue is resolved best jury information warrants dismissal of the view, trial court. In our the dismissal of indictment. factual, indictment, findings absent Turning grand jury investiga- first to the prejudiced, defendant was an abuse Johnson, I tors’ disclosure would charac- Israel, discretion. See W. LaFave & J. investigators’ terize the conduct as a viola- (“each supra, at 324 misconduct dismissal 6.2(a). investiga- tion of Crim.P. That the facts”). tends to stand on its own identity tors did not disclose the Because the trial court made no factual precise witnesses or the findings preju- whether Rickard was fact content of their cannot obscure prosecution’s improper diced disclo- provided the fact that the information sure, we reverse the trial court and remand Johnson had its source for further consistent with this proceedings and breached the veil of secre- 6.2(a). opinion. cy imposed by majority regarding necessary prejudice. 7. Jurisdictions conflict establish the likelihood of 2 W. La- Israel, 324; Comment, evidentiary prejudice. showing supra, to establish Fave & J. Prosecutor, Proceedings: require Jury Some courts a “reasonable likeli- the Trial Judge, Influence, hood" that the misconduct influenced the and Undue 39 U.Chi.L.Rev.761 jury’s decisionmaking strength 2 W. on the function. LaFave & Other courts focus 324; Israel, see, Good, preju- supra, e.g., State v. the evidence and will not find misconduct J. (1969); guilt. Ariz.App. 10 460 P.2d 662 State v. dicial if there is Substantial evidence of 2 Joao, Israel, 324; see, (1971); supra, e.g., W. 53 Haw. 491 P.2d 1089 LaFave & J. Paulsen, 1979). Riccobene, (Iowa Be- States v. 451 586 v. 286 N.W.2d 157 United F.2d (3d.Cir.1971). jurisdictions agree specific cause it is difficult to find establishing evidence Most prejudice that the misconduct influenced the defendant is not to establish will, jurors. spe- by presenting testimony grand 2 serious misconduct absent Israel, contrary, presumed supra, be W. & J. at 324. cific evidence to the LaFave 196 deemed fundamen proposition that because the errors are authority for the

cites no cases, at 2375. In these tal.” Id. 108 S.Ct. specific content only a disclosure protections “the structural amount to a testimony would compromised as to ren jury have been so I see no jury secrecy, and breach unfair, fundamentally proceedings Furthermore, der the for such a rule. basis allowing prejudice.” presumption jury wit- of some use added); (emphasis Vasquez v. Id. see also change his another to persuade nesses to 254, 260-64, Hillery, 474 U.S. 106 S.Ct. employ- of loss testimony under threat (dismis 617, 622-24, (1986) 88 L.Ed.2d perjury tampers for ment and upheld it could sal of indictment where be grand jury process integrity of the with the presumed that racial discrimination in se product of a com- and is no means prejudice grand jurors lection of would outweighing countervail- pelling need defendant); States, Ballard v. United contemplated by ing policy secrecy as (1946) 67 S.Ct. 91 L.Ed. 181 U.S. Court, 187 Colo. Granbery v. District (defendant presumed prejudiced to be (1975). 531 P.2d 390 intentionally where had been and women se- Having determined from the systematically excluded breached, I describe crecy has would been panel any inquiry into harmless indictment quashing the standard required unguided specu have error would majori- differently than does the somewhat lation). agree I that harmless error ty. While pre principle prejudice may be secrecy apply analysis should comports in with our sumed select cases violations, remedy of I not limit the would Lewis, decision in in which the defendant dismissal to cases (1973). Lewis, pre we prejudice in fact. can show grand jury investi sumed where majority say that I understand gators as advocates before the acted indictment can no dismissal of an there be jury. practice This was antithetical to the finding for breach of without development presentation “orderly finding prejudice; such a the error absent dignified in a calm and atmo evidence Maj. op. at 193 deemed harmless.1 will be sphere,” “necessarily to the work[ed] According majority, prejudice -195. investigation.” prejudice of those under “only exist if it is established would 241, 516 P.2d at 418. As a 183 Colo. at substantially influenced violation the indictments consequence, dismissal of indict, grand jury’s decision to or if there is required. was not grave doubt that the indictment in jury secrecy contributes several substantially influenced the violations.” grand jury’s dual roles as an ways to the op. Su Maj. at 195. The United States protecting investigative body and a shield this preme provides Court the source for against oppressive and individual citizens rule in Bank Nova v. United Scotia government prosecution. W. — unfounded U.S. —, States, Israel, J. LaFave & Criminal (1988) (applying a harmless Granbery in As we stated analysis on Fed.R.Crim.P. error based Court, we maintain District 52(a)). 52(a), to Crim.P. which is identical following Court, however, The Bank Nova Scotia reasons: holding narrowly so limit its did not prevent escape of those whose To require every case. actual contemplated; be Supreme that a class of cases Court noted dismissed, freedom to the insure the utmost exists which “indictments are deliberations, grand jury in its prej particular without a assessment persons subject to indictment prevent impact udicial of the errors each error, defect, Error,” irregularity, 52(a), Any or variance captioned “Harmless 1. Crim.P. rights shall not affect substantial which does provides: disregarded.

19? presumed can and from should be importuning friends their cases. certain jurors; (3) perjury of prevent subornation hold that the of I would limited breaches who tampering with witnesses jury secrecy occurred in this that and later testify before fundamentally not so unfair as case were it; the trial of indicted appear at those give presumption prejudice. rise to a of (4) encourage and untrammeled free error there- The harmless standard should infor- by persons have disclosures who applied respect with to each of fore be respect to the commission mation with issue here. breaches crimes; trial court case should be remanded to the innocent accused who application standard. from the fact disclosure of exonerated J., C.J., KIRSHBAUM, investigation, QUINN, and and he has been under expense standing trial where join in this concurrence and dissent. from probability guilt. there was 390, P.2d

187 Colo. Gam

(quoting United States v. Procter &

ble, 681-82 n. Thus, (1958)). n. accused, protecting the se addition PLACE, LTD.; Part requirement Marin crecy ensures CARRARA Ltd.; Falls, Ltd.; ners, operates independent body, free M-B Orchard Tuscany Associates; prosecutorial Triad Associates outside influence and from Ltd.; Colorado, As overreaching. analytical A Plaza harmless error Orchard L.P.; Bank presump leaves III First Interstate framework that room sociates Denver, N.A.; Co.; fundamentally Insurance based on Allstate tions Ltd.; Associates, prescribed Place Kroh deviations from the Park unfair Development Company; grand jury process accommodate Brothers would (Great-West P.E.R.S.; Lewis, 183 objectives. People v. of California these Cf. Company), Life Assurance Great- Jay Company; C. Life Assurance West im- difficulty assessing the actual Walters; Bill Plaza Colora Roulier and fundamentally pact of unfair breaches Ltd.; Compa do, Travelers Insurance under- prescribed procedure Ltd.; Building, ny; Office Glendale recognition the need for continued scores Ltd.; Venture, Corp.; Linclay Tower I appropri- presumption of a Blinder, Meyer and Lillian Joint presumption ate circumstances. Such Tenants, Plaintiffs-Appellants, insur- from the the often lift accused would discovering prov- mountable burden egregious viola-

ing prejudice in cases of COUNTY OF ARAPAHOE BOARD grand jury procedure. Because tions EQUALIZATION, grand jury process itself secrecy of the Defendant-Appellee, preju- conceal both existence can Maurer, Mary Property Tax Anne misconduct, impact of dicial Administrator, Intervenor. should be left some the accused avenue prosecutorial miscon- serious redress when No. 86SA341. rendering proceedings fundamen- duct Colorado, Supreme Court of light preju- comes but actual tally unfair En Banc. affirmatively demonstrated. dice cannot be Sept. reasons, join in these I would For adoption of error majority’s the harmless understanding

standard breaching grand impact prejudicial

Case Details

Case Name: People v. Rickard

Court Name: Supreme Court of Colorado

Date Published: Sep 12, 1988

Citation: 761 P.2d 188

Docket Number: 86SA386

Court Abbreviation: Colo.