People v. Arellano-Avila

20 P.3d 1191, 2001 DJCAR 1512
CourtSupreme Court of Colorado
DecidedMarch 26, 2001
DocketNo. 01SA1
StatusPublished
Cited by5 cases

This text of 20 P.3d 1191 (People v. Arellano-Avila) is published on Counsel Stack Legal Research, covering Supreme Court of Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Arellano-Avila, 20 P.3d 1191, 2001 DJCAR 1512 (Colo. 2001).

Opinion

Justice HOBBS

delivered the Opinion of the Court.

Pursuant to C.A.R. 21, the People petitioned for relief from a district court order that directed the parties to take the deposition of a Mexican citizen residing in Mexico. The district court held that the deposition was "necessary" within the meaning of Crim. P. 15, and that the rule did not bar the court from ordering the deposition to be taken outside of the United States. We issued a rule to show cause why the order should not be vacated. We hold that a Colorado court lacks authority under Crim. P. 15 to order a deposition of a person outside of its jurisdiction. No other provision of law authorizes the taking of the deposition ordered by the court in this case. . We make the rule absolute.

I.

The prosecution charged the defendant, Diomedes Arellano-Avila, with one count of sexual assault and one count of sexual assault on a child by force. On November 22, 2000, Arellano-Avila filed a motion to take the deposition of Usbaldo Lopez-Avila, the nephew of Arellano-Avila, who was present in Arellano Avila's home during one of the alleged sexual assaults.

Lopez-Avila is a citizen of Mexico and resides there. In his motion and supporting affidavit, Arellano-Avila argued that the trial court could issue an order to take the deposition under Crim. P. 15 because: (1) Lopez-Avila's testimony was material and relevant to the case and contradicted the testimony of the complaining witness on several counts; and (2) the fact that Lopez-Avila would not voluntarily travel to Colorado, coupled with the fact that he was outside the court's subpoena power, meant that he was a person who "may be unable to attend a trial" under Crim. P. 15.

The prosecution opposed the motion on the basis that the trial court lacked jurisdiction to order the deposition of a person who is beyond the subpoena power of the court. The district court held a hearing on December 5, 2000. The court ruled preliminarily that it had the power and authority to order a deposition of a foreign citizen residing in a foreign country, but the court requested Ar-ellano-Avila to file a supplemental affidavit in support of his motion.

On December 8, 2000, the district court issued a minute order granting Arellano-Avila's motion. In its order, the district court concluded that the deposition was "necessary under [Crim. P.] 15," provided that the district attorney should attend to eross-examine the witness, and the court assessed the prosecution's costs of travel against the Public Defender's office.

II.

We hold that neither Crim. P. 15, nor any other provision of law brought to our attention, allows the district court to order that a deposition be taken outside of its presence and jurisdiction.

A.

Crim. P. 15

In ascertaining the appropriate construction of a rule of criminal procedure, we look to its plain meaning in pari materia with the other rules, see People ex rel. Farina v. District Court, 184 Colo. 406, 410, 521 P.2d 778, 780 (1974), while keeping in mind that the rules "are intended to provide for the [1193]*1193just determination of criminal proceedings. They shall be construed to secure simplicity in procedure, fairness in administration, and the elimination of unjustifiable expense and delay." Crim. P. 2.

Crim. P. 15 governs the taking of depositions in a criminal proceeding. A court may order the deposition of a prospective witness upon motion by either party, "supported by an affidavit showing that [the] prospective witness may be unable to attend a trial or hearing and that it is necessary to take his deposition to prevent injustice." Crim. P. 15(a). The rule further provides that "[ujpon entering an order for the taking of a deposition, the court shall direct that a subpoena issue for each person named in the order." Crim. P. 15(b).

The rule is specific about the purpose and use of a deposition. Its purpose is "to prevent injustice" by allowing for preservation of the testimony of a witness who "may be unable to attend a trial or hearing." Crim. P. 15(a). The deposition is to occur before the court issuing the subpoena, as fixed by the court's order:

The order shall fix the time for taking the deposition before the court where the case is pending and may require that any designated books, papers, documents, photographs, or other tangible objects, not privileged, be produced at that time and place.

Id. (emphasis added). The evident purpose of the rule is to preserve the testimony of the likely unavailable witness through an in-person appearance before the court, as though the person were testifying at the time of trial. There is no provision in the rule for taking the deposition outside of the court's presence and jurisdiction.

The purpose of the subpoena implementing the court's order is to compel appearance of the witness for deposition before the court in which the case is pending. The subpoena requirement is an important constraint on the court's ability to order depositions, because the court must direct a subpoena to issue for the party to be deposed. It logically follows that the court may not order a deposition of any person who may not be legally served a subpoena.1

A subpoena may be served on a witness outside of Colorado "only as provided by law." Crim. P. 17(F)(2). Legal mechanisms giving recognition to Colorado laws or court orders outside of the state may include reciprocal uniform acts, compacts, and comity. See Solliday v. District Court, 135 Colo. 489, 498, 313 P.2d 1000, 1004 (1957). Without an explicit grant of authority, however, a Colorado court may not procure the testimony of parties outside its jurisdiction. "[Nlo state court or government has authority beyond its own borders, each state being sovereign as to its own territory and those residing therein." State ex rel. Minn. Attorney Gen. v. District Court, 155 Colo. 521, 525, 395 P.2d 601, 602 (1964); Solliday, 135 Colo. at 497-98, 313 P.2d at 1004.

B.

Lack of an Authorizing Provision for Taking the Deposition Elsewhere

Because jurisdiction is so bound up with sovereignty, see, e.g., Atchison, Topeka & Santa Fe R.R. Co. v. Maggard, 6 Colo.App. 85, 88-89, 39 P. 985, 986 (1895), and jurisdictional limitations are so fundamental to American jurisprudence, a number of federal and state courts have determined that a court cannot order the deposition or compel the testimony of persons residing outside its jurisdictional boundaries. See Minder v. Georgia, 183 U.S. 559, 561-62, 22 S.Ct. 224, 225, 46 L.Ed. 328, 330 (1902); Walker v. Coiner, 474 F.2d 887, 889 (4th Cir.1973); People v. Cavanaugh, 69 Cal.2d 262, 70 Cal.Rptr. 438, 444 P.2d 110, 112 (1968); Wilkerson v. State, 139 Ga.App. 725, 229 S.E.2d 529, 530-31 (1976); Kardy v. Shook, 237 Md. 524,

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