Summary
In VanMeveren, the witness (1) "testified concerning his observations of the alleged victim when she made her complaint," and (2) "personally interviewed the defendant and witnesses whose statements he related."
Summary of this case from People v. HugginsOpinion
No. 27799
Decided February 21, 1978.
Original proceeding by district attorney seeking relief in the nature of prohibition and mandamus against district judge who allegedly abused his discretion when he dismissed a first-degree sexual assault charge at the conclusion of a preliminary hearing. Rule to show cause issued.
Rule Made Absolute
1. RAPE — Sexual Assault — Preliminary Hearing — Dismissal — Hearsay — Error — Investigating Officer — Testimony — Cross-Examination. Where respondent judge dismissed a first-degree sexual assault charge against defendant at the conclusion of a preliminary hearing assigning as his first reason for the dismissal — that the evidence presented by the district attorney was entirely hearsay, held, in so ruling, trial judge erred; the prosecution's evidence — even though much of the testimony was hearsay — was based on investigating officer's testimony concerning his knowledge and information about many aspects of the alleged crime and his personal interview of defendant and other witnesses whose statements he related and upon which testimony he was comprehensively cross-examined.
2. Sexual Assault — Preliminary Hearing — Probable Cause — Doctor's Report. Where respondent judge dismissed a first-degree sexual assault charge against defendant at the conclusion of a preliminary hearing, assigning as his second reason for the dismissal — that the prosecution produced insufficient evidence of force, violence, threats or intimidation, held, in so ruling, trial judge erred; record reflects sufficient evidence to support a finding of probable cause as to the element of "the actual application of physical force" by defendant, which was buttressed by the doctor's report in evidence.
3. CRIMINAL PROCEDURE — Preliminary Hearing — Weigh — Credibility — Statement — Incredible — Lack of Finding. It is not the function of the presiding judge at a preliminary hearing to weigh the credibility of a witness' statement, unless the testimony is "implausible or incredible as a matter of law"; the respondent judge made no such finding in instant case.
Original Proceeding
Stuart A. VanMeveren, District Attorney, Loren B. Schall, Assistant, Terence A. Gilmore Deputy, for petitioners.
Frey Huisjen, John P. Frey, for respondents.
Petitioner, the district attorney for the Eighth Judicial District of Colorado, brought this original proceeding seeking relief in the nature of prohibition and mandamus against the district court of Larimer County and a judge of that court. The petitioner maintains that the respondent judge abused his discretion when he dismissed a first-degree sexual assault charge against one Waheeb Esam Ismail at the conclusion of a preliminary hearing.
The respondent district judge grounded the dismissal on findings that the evidence presented by the district attorney was entirely hearsay and there was insufficient evidence to establish the element of physical force or violence required to prove the crime. We issued a rule to show cause why the charge should not be reinstated. Both parties have responded. The prosecution's evidence at the preliminary hearing was sufficient to withstand a motion for dismissal. Therefore, the dismissal was improper and we now make the rule absolute.
The officer who investigated the case was the only witness produced by the prosecution at the preliminary hearing. He testified as to statements made to him by the complaining witness, the defendant and other witnesses. He also testified regarding the appearance and behavior of the complaining witness when she made her complaint to him.
The following story emerged from the officer's testimony. The complaining witness was hitchhiking and accepted a ride from the defendant and his friend. She voluntarily spent the next six hours in the defendant's company, doing her laundry at his apartment complex, going out to dinner, and watching television at the defendant's apartment with him and his friends. She voluntarily entered the defendant's bedroom, and he began to make sexual overtures, which she resisted. Some time later, she accepted the defendant's offer to spend the night in the apartment, but she insisted upon sleeping on the floor. The alleged assault occurred around 3:00 a.m. in the following manner, as quoted from the officer's testimony:
"She told me that he grabbed her breasts, held on to her breasts very tightly and he reached up under her dress and removed her Kotex and threw it to the side and that he had sexual intercourse with her against her will."
The officer testified that the complaining witness was taken to a hospital for examination, and the doctor's report indicated bruises on her breasts.
In dismissing the charge, the respondent judge stated that all the evidence tending to show probable cause was hearsay and further, that there was inadequate evidence of physical force, violence, threats or intimidation of the alleged victim. We disagree with these conclusions as a matter of law.
I.
[1] In support of dismissal because the evidence consisted entirely of hearsay testimony, the respondent judge alluded to the case of Maestas v. Dist. Ct., 189 Colo. 443, 541 P.2d 889 (1975). That case does not support dismissal here. In Maestas, the only witness for the prosecution was a detective who was, at most, peripherally involved in the investigation of the case. He was neither a key witness nor the arresting officer and all of the testimony he gave was totally hearsay and consisted mostly of information he obtained from police files. We held that such testimony could not support the prosecutor's case in a preliminary hearing, and we observed that the inordinate use of hearsay "foils the protective defense against unwarranted prosecutions that preliminary hearings are designed to afford to the innocent." In Maestas, the witness was so unfamiliar with the case that an effective cross-examination could not be afforded the defendant, and the screening function of the preliminary hearing was rendered meaningless.
On the contrary, in this case the prosecution witness is the investigating officer of the case who had knowledge and information about many of the aspects of the alleged crime. Although much of his testimony was hearsay, he also testified concerning his observations of the alleged victim when she made her complaint to him. Also, he personally interviewed the defendant and witnesses whose statements he related. The transcript reflects that defendant's counsel comprehensively cross-examined the witness here.
II.
[2] The second reason assigned by the respondent district judge for dismissing the charge was that the prosecution produced insufficient evidence of force, violence, threats or intimidation. The first-degree sexual assault statute, Section 18-3-402, C.R.S. 1973 (1976 Supp.), provides in pertinent part as follows:
"(1) Any actor who inflicts sexual penetration on a victim commits a sexual assault in the first degree if: (a) The actor causes submission of the victim through the actual application of physical force or physical violence; . . ."
According to the officer's testimony, one instance of the application of physical force or violence was the grabbing of the complaining witness' breasts in the manner she described to the officer. We must determine whether this evidence was sufficient to support a finding of probable cause as to the element of "the actual application of physical force."
The defendant admitted that sexual penetration occurred. No evidence in the record would support a charge based on any other subsection of the first-degree sexual assault statute. Therefore, only the "actual application of physical force" is in question.
We recently, in People v. Treat, 193 Colo. 570, 568 P.2d 473 (1977), defined the probable cause standard for preliminary hearings as follows:
"The probable cause standard requires evidence sufficient to induce a person of ordinary prudence and caution conscientiously to entertain a reasonable belief that the defendant may have committed the crimes charged." (Emphasis added.)
Considering the evidence in the light most favorable to the prosecution, Hunter v. Dist. Ct., 190 Colo. 48, 543 P.2d 1265 (1975), it is convincingly clear that an ordinarily prudent person could conscientiously believe that the defendant here may have committed the crime of first-degree sexual assault. The complaining witness' allegation that the defendant grabbed her breasts and held them very tightly is certainly evidence of the "actual application of physical force." This is buttressed by the doctor's report in evidence.
III.
[3] In their answer to the rule to show cause, the respondents assert that the judge's order to dismiss was properly based on a determination that the alleged victim's statements were incredible as a matter of law. The judge's statements in the record make no mention of this consideration, but if this was his hidden reason for dismissing the case, he abused his discretion.
It is not the function of the presiding judge at a preliminary hearing to weigh the credibility of a witness' statement, unless the testimony is "implausible or incredible as a matter of law." Hunter v. Dist. Ct., 190 Colo. 48, 543 P.2d 1265 (1975). The respondent judge made no such finding in this case.
The rule is made absolute.
MR. JUSTICE ERICKSON and MR. JUSTICE CARRIGAN dissent.