People v. District Court ex rel. Twenty-Second Judicial District

652 P.2d 582, 1982 Colo. LEXIS 704
CourtSupreme Court of Colorado
DecidedOctober 12, 1982
DocketNo. 82SA130
StatusPublished
Cited by3 cases

This text of 652 P.2d 582 (People v. District Court ex rel. Twenty-Second Judicial District) 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. District Court ex rel. Twenty-Second Judicial District, 652 P.2d 582, 1982 Colo. LEXIS 704 (Colo. 1982).

Opinion

ROVIRA, Justice.

The People petition this court for relief in the nature of prohibition and mandamus pursuant to C.A.R. 21. We issued our rule to show cause and now make the rule absolute in part, and we discharge it in part.

I.

On March 24, 1981, a criminal complaint was filed in the Montezuma County Court charging Joseph J. Beyette with attempted second-degree murder,1 first-degree assault,2 second-degree assault,3 and criminally negligent homicide,4 in connection with the shooting and wounding of Toby Velasquez and the death of Cindy Beyette, the defendant’s wife.5

A preliminary hearing was held at which the only evidence presented by the People was the testimony of Ronald M. Barker, a Cortez police detective. At the conclusion of the hearing, the county judge made a finding of probable cause and bound the case over to the district court.

Subsequently, Beyette filed a motion to dismiss the charges against him, or, in the alternative, for a new preliminary hearing on the grounds that he had not received a fair and impartial preliminary hearing and that the evidence failed to establish probable cause as to the offenses charged. The parties agreed that the respondent district court should read the transcript of the preliminary hearing and, based on that reading, grant or deny the defendant’s motion.

After examining the transcript, the district court granted the defendant’s motion to dismiss as to the charge of attempted second-degree murder, holding that probable cause had not been shown. It denied the motion as to the other charges and the request for another preliminary hearing.

In March 1982, at the beginning of the jury trial, defendant moved to dismiss the charge of first-degree assault, contending that section 18-3-202(l)(c), C.R.S.1973 (1978 Repl.Vol. 8), was unconstitutional. He claimed that the statute was vague and violated his right to equal protection in that it was indistinguishable from section 18-3-203, C.R.S.1973 (1978 Repl.Vol. 8), second-degree assault.

The respondent trial court held that the first-degree assault statute was constitutional, but reconsidered its earlier probable cause ruling and dismissed the charge of first-degree assault on the ground that there was insufficient evidence adduced at the preliminary hearing to support .the charge.

After the jury was selected, the defendant sought to prevent Diana Velasquez, a prosecution witness, from testifying, because she had undergone hypnosis by an officer of the Farmington, New Mexico, police department. The fact that the witness had been hypnotized for the purpose of aiding her to recall the facts in greater detail was made known at the preliminary hearing, which was held eleven months before trial. The court received into evidence two statements made by the witness prior to her hypnosis and a transcript of the statements made while under hypnosis. Relying on the case of State v. Hurd, 86 N.J. 525, 432 A.2d 86 (1981), decided by the New Jersey Supreme Court, which established certain conditions as a prerequisite for allowing a witness to testify after undergoing hypnosis, the trial court ruled that the witness would be disqualified from testifying because the hypnotic interview had tainted her, and any testimony she gave would not represent her own free memory.

For reasons not pertinent to this proceeding, a mistrial was declared. The People immediately filed their petition pursuant to C.A.R. 21 seeking reinstatement of the [585]*585charges of attempted murder in the second degree and first-degree assault and a reversal of the ruling disqualifying the witness. The People invoke the original jurisdiction of this court on the ground that if they are forced to proceed to trial on the remaining two counts jeopardy will have attached, and they will be foreclosed from proceeding on the charges which were dismissed by the respondent trial court.

II.

A threshold question that must be resolved is whether it was proper for the district court to review the county court’s finding of probable cause. We believe that it was not.

Rule 5 of the Colorado Rules of Criminal Procedure provides for a preliminary hearing in a county court to determine whether probable cause exists to believe that the offense charged in a felony complaint was committed by the defendant. If the county judge finds probable cause, “he shall order the defendant bound over to the appropriate court of record for trial.” Crim.P. 5(a)(4)(III).

In reviewing a similar provision in Rule 7, concerning preliminary hearings in the district court where a direct information is filed, we held that a district court that had previously found probable cause to believe a defendant had committed a crime did not have the authority later to order the charges dismissed or reduced based upon the concluded preliminary hearing. People ex rel. Russel v. District Court, 186 Colo. 136, 526 P.2d 289 (1974). We concluded that a finding of probable cause can have only one result, as set out in the rule — the court shall set the case for arraignment or trial. We stated the following:

“This mandate precludes subsequent reexamination or reflection. There is no provision for rehearing on or reconsideration of a ruling on completion of a preliminary hearing. In short, respondent court has no jurisdiction to later reopen the matter after bind-over and to reduce the charges.”

186 Colo. at 139, 526 P.2d at 290. We believe that this rationale applies equally to review by a district court where a county court has found probable cause.

In People ex rel. Farina v. District Court, 184 Colo. 406, 521 P.2d 778 (1974), we were faced with a question of interpretation of Crim.P. 5 that is relevant here. In Farina, the defendant had waived a preliminary hearing in the county court, but then requested one in the district court. This request was granted over the district attorney’s objection. We held that the wording of section 5(a)(5) of the rule6, directing the county court, if a preliminary hearing is not requested, to “order the defendant bound over to the appropriate court of record for trial,” precluded any consideration of probable cause by the district court. 184 Colo. at 409, 421 P.2d at 779-80. We believe that identical wording of section 5(a)(4)(III) precludes any review of the county court’s finding of probable cause. Thus, the trial court erred in dismissing the charges for lack of probable cause.7

This leaves the question of the effect of the prosecution’s stipulation that the district court review the preliminary hearing transcript in ruling on the motion to dismiss as it relates to the attempted second-degree murder charge. Because the prosecution has not raised the issue, we are willing to assume that it considers itself estopped to contest it, bringing us to the merits of the prosecution’s claim that the district court erred in finding a lack of probable cause on the attempted second-degree murder charge.

III.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Siruta v. Hesston Corp.
659 P.2d 799 (Supreme Court of Kansas, 1983)
People v. DISTRICT COURT, ETC.
652 P.2d 582 (Supreme Court of Colorado, 1982)

Cite This Page — Counsel Stack

Bluebook (online)
652 P.2d 582, 1982 Colo. LEXIS 704, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-district-court-ex-rel-twenty-second-judicial-district-colo-1982.