Summary
describing the exceptions to law of the case doctrine
Summary of this case from Lobato v. StateOpinion
No. 93SC132
Decided June 20, 1994
Certiorari to the District Court, Arapahoe County Honorable Ethan D. Feldman, Judge
JUDGMENT REVERSED AND CASE REMANDED WITH DIRECTIONS
City of Aurora, Colorado, Charles H. Richardson, Stephen R. Ruddick, and Robert Davis Beard, all of Aurora, Colorado, Attorneys for Petitioner
Rodney Allison (The Law Firm of Leonard M. Chesler) of Denver, Colorado, and Laird Blue, of Denver, Colorado, Attorneys for Respondent
Gale A. Norton, Attorney General, Stephen K. ErkenBrack, Chief Deputy Attorney General, Timothy M. Tymkovich, Solicitor General, John Daniel Dailey, Deputy Attorney General, Robert Mark Russel, First Assistant Attorney General, and Laurie A. Booras, Assistant Attorney General, Criminal Enforcement Section, all of Denver, Colorado, Attorneys for Amicus Curiae the State of Colorado
Forrest W. Lewis (Schoenwald Lewis, P.C.), of Denver, Colorado, Attorneys for Amicus Curiae Colorado Criminal Defense Bar
Ty Gee (Haddon, Morgan Foreman, P.C.) of Denver, Colorado Attorneys for Amicus Curiae Aurora Municipal Court Public Defender's Office
The defendant, Robert W. Allen (Allen), was arrested, charged, and later convicted of soliciting oral sex from an undercover Aurora police officer posing as a prostitute. The solicitation was monitored by other police officers and recorded on audio tape. The tape was reused in the course of subsequent transactions, and was not preserved as evidence.
Because the tape was not available, the trial court sanctioned the prosecution by suppressing the testimony of the police officer and dismissed the case. The People appealed to the district court, which reversed the trial court and reinstated the case for trial. At trial, Allen was convicted. He appealed his conviction to the district court, which reversed the conviction, ruling that Allen's right to a speedy trial had been violated and that the testimony of the police officer should have been suppressed.
We granted certiorari to decide whether suppression of an undercover police officer's testimony is required where the police did not act in bad faith in failing to preserve evidence, whether Allen's right to a speedy trial was violated, and whether a ruling by an appellate court on a question of law becomes the law of the case to be followed in successive stages of the same litigation. We reverse and remand to the district court with directions to reinstate the judgment of conviction and sentence.
I.
On July 20, 1990, the Aurora Police Department conducted an undercover operation in which female police officers posed as prostitutes to target men who were soliciting women for prostitution on East Colfax Avenue. At approximately 11:30 p.m., Allen drove his car into a parking lot and Officer Roberta Coleman approached him. She testified that she asked Allen, "What's up?" He replied, "I'm looking for a date." She told him she was working out of Room 7 at the motel across the street, and he responded, "Okay, fine." She then asked him what he was interested in, and he responded, "Head." She testified that she told Allen the cost would be $20, and he showed her a $20 bill. Allen then drove to Room 7, where he met Officer Coleman at the door. When they entered the room, he was arrested by uniformed officers waiting inside.
Officer Coleman testified that, in street jargon, this is the phrase used to inquire whether a woman is available for hire as a prostitute.
The transaction was monitored by other police officers and recorded on a reel-to-reel tape. Officer Coleman testified that the purpose of the monitoring and recording was to ensure the safety of the female officers and to assist the officers in remembering details of conversations when they wrote their police reports. However, she testified that she did not listen to the tape of her conversation with Allen. After the arrest, according to normal procedures, the tape was rewound and used to monitor other transactions that night.
Trial in the Aurora Municipal Court was originally set for November 15, 1990, eighty-four days after Allen's arraignment. On the morning of trial, Allen made a motion to suppress the testimony of Officer Coleman because of the unavailability of the tape. The trial court did not rule on the motion, but rather, pursuant to C.M.C.R. 248(b), granted the People a continuance to respond to the motion, and extended the time limit for speedy trial an additional thirty days, until December 21, 1990. Trial was rescheduled for December 11, 1990. By its written order of December 5, 1990, however, the trial court vacated the December 11 trial date. On December 13, via telephone conference, the court found that, although the actions of the police in erasing the tape were not taken in bad faith, because the erasure was intentional and not accidental, the testimony had to be suppressed. The court granted Allen's motions to suppress the evidence and dismiss the case. At no time did either side raise a speedy-trial objection.
C.M.C.R. 248(b) allows for one thirty-day continuance.
The People appealed the suppression and dismissal orders on December 28, 1990. On June 26, 1991, Chief Judge Joyce Steinhardt of the district court, holding that there was no due process violation unless Allen could show bad faith by the police in erasing the tape, reversed the trial court and reinstated the case for trial. Allen did not appeal Judge Steinhardt's decision to this court. Judge Steinhardt's order was received by the city attorney on July 2, 1991, and trial was set for September 24, 1991.
Because trial was to the Aurora Municipal Court, the People appealed to the Arapahoe County District Court, which heard argument sitting as an appellate court.
At a pretrial hearing on the day of trial, Allen made a motion to dismiss, claiming that after the case had been returned to the municipal court after appeal, the city had failed to bring him to trial within the speedy-trial period. The court denied his motion because Allen's attorney had not objected to the setting of the trial date and had first raised the issue on the day of trial. The trial court heard the case and found Allen guilty. Allen received a suspended sentence of fifteen days and a fine of $150.
A defendant is not entitled to a dismissal on speedy-trial grounds if neither he nor his attorney objected to the setting: If a trial date is offered by the court to a defendant who is represented by counsel and neither the defendant nor his counsel expressly objects to the offered date as being beyond the time within which such trial shall be had pursuant to this section, then the period within which the trial shall be had is extended until such trial date and may be extended further pursuant to any other applicable provisions of this section. § 18-1-405(5.1), 8B C.R.S. (1986).
Allen appealed his conviction to the district court. Acting District Judge Ethan Feldman heard the appeal and held that, because trial had not been held on December 11, 1990, when it was originally scheduled, the time allowed for a speedy trial had expired and Allen was entitled to a dismissal. The court reasoned that the statutory exceptions to the speedy-trial requirement, e.g., section 18-1-405(6), 8B C.R.S. (1986), and Crim. P. 48, did not apply to violations of municipal ordinances. Judge Feldman also reviewed Judge Steinhardt's order of June 26, 1991, which reversed the trial court's suppression of the officer's testimony, and found that the testimony should have been suppressed. He found that Judge Steinhardt had misinterpreted the case law and erroneously required a showing of bad faith before she would suppress the testimony. Instead, Judge Feldman ruled, the destruction of a tape recording was not subject to a bad-faith analysis. Alternatively, he held that the intentional — as opposed to accidental — destruction of the tape amounted to bad faith per se.
II.
We first address Judge Feldman's ruling on whether Allen's right to a speedy trial was violated. Judge Feldman held that, because the Municipal Court Rules were silent on the running of speedy trial during periods of appeal, speedy trial continued to run and was not tolled by the exceptions listed in section 18-1-405(6), 8B C.R.S. (1986), or Crim. P. 48. We disagree with his conclusion.
Pursuant to Colorado Municipal Court Rule 248, a defendant must generally be brought to trial within ninety days of the date of his entry of a plea of not guilty to the charges in the complaint. Under the same rule, a court may extend the period an additional thirty days. The computation of the speedy-trial period begins from the entry of the last not-guilty plea. Amon v. People, 198 Colo. 172, 597 P.2d 569 (1979). If the charges brought against the defendant are dismissed without prejudice, they become a nullity. People v. Small, 631 P.2d 148 (Colo. 1981); People v. Dunhill, 40 Colo. App. 137, 570 P.2d 1097 (1977), cert. denied (Jan. 9, 1978). Dismissal of all the charges is a final judgment on the case. If and when the defendant is arraigned under a subsequent information, the speedy-trial period begins anew, even if the charges are identical. People v. Small, 631 P.2d at 155; People v. Kraemer, 795 P.2d 1371, 1374 (Colo.App.), cert. denied (Sept. 4, 1990).
The prosecution may not file and dismiss charges indiscriminately, however. Jaramillo v. District Court, 174 Colo. 561, 484 P.2d 1219 (1971).
Speedy trial is tolled while an appeal is pending. People v. Jamerson, 198 Colo. 92, 596 P.2d 764 (1979).
On December 13, 1990, the first trial judge suppressed the police officer's testimony and dismissed the only charge against Allen. At this point, the charge became a nullity, and Allen was no longer affected by speedy-trial concerns. No charges were pending against him. The prosecution then appealed the suppression and dismissal orders to the district court. Even if the case had not been dismissed, speedy trial would not continue to run during the appeal. On appeal, Judge Steinhardt reinstated the case against Allen. When the case was remanded to the municipal court, the speedy-trial period began running anew, beginning with the first day of the ninety-day period allotted under the Municipal Rules. Allen's trial took place on September 24, 1991, the eighty-fourth day of the speedy-trial period. We find no violation of Allen's right to a speedy trial.
Allen mistakenly characterizes the first appeal to the district court as an interlocutory appeal. It is not. No part of the case remained pending in the municipal court when the appeal was taken. Because it is not an interlocutory appeal, we find Allen's argument that we should apply People v. Beyette, 711 P.2d 1263 (Colo. 1986), unpersuasive.
The trial court resolved Allen's speedy-trial argument by ruling that Allen had waived his right to claim a speedy-trial violation because his attorney had not objected to the trial date set by the court. The trial court was correct. Section 18-1-405(5.1) states: If a trial date is offered by the court to a defendant who is represented by counsel and neither the defendant nor his counsel expressly objects to the offered date as being beyond the time within which such trial shall be had . . . , then the period within which the trial shall be had is extended until such trial date. The record indicates that the court clerk contacted the office of Allen's attorney after the case had been remanded to the municipal court, and the parties agreed on a date for trial. It was not until the day of trial that Allen's attorney objected to the trial date on speedy-trial grounds. We find that, under § 18-1-405(5.1), Allen waived his ability to claim that his right to a speedy trial had been violated.
III.
We turn next to the issue of whether a showing of bad faith is required before a defendant can claim that destruction of evidence violated his due process rights. The prosecution appeals the district court's order dismissing the case and contends that the destruction of the tape recording by the police did not violate Allen's due process rights. This issue is not properly before this court, and we decline to rule on it.
On November 15, 1990, the day this case was first set for trial in the municipal court, Allen made a motion to suppress the testimony of the undercover police officer because the tape the police used to monitor the conversation was unavailable. He also made a motion to dismiss the case. Four weeks later, the municipal court granted both of Allen's motions, finding that, although the actions of the police in erasing the tape were not taken in bad faith, because the erasure was intentional and not accidental, the testimony had to be suppressed. The prosecution appealed the suppression and dismissal orders to the district court. Chief Judge Steinhardt of the district court reversed the trial court and held that there was no due process violation unless Allen could show bad faith on the part of the police. She reinstated the charges and remanded the case for trial in the municipal court. Allen did not appeal this ruling to our court, nor did he raise the issue when the case was remanded for trial in the municipal court.
After Allen was found guilty at trial, he appealed to the district court. Acting District Court Judge Feldman reviewed and reversed District Judge Steinhardt's earlier appellate order on the suppression and dismissal. He found that the testimony should have been suppressed because Colorado law did not require that the destruction of the tape recording be subject to a bad-faith analysis. The prosecution appealed Judge Feldman's order to this court.
The issue of whether Allen must show bad faith on the part of the police before the testimony would be suppressed was not properly before Judge Feldman, and he should not have addressed it. After Judge Steinhardt, as an appellate judge, ruled on the question of law and Allen did not appeal, her ruling became the law of the case.
A prior ruling on a question of law made at one stage of a case becomes binding precedent to be followed in successive stages of the same litigation. People v. Roybal, 672 P.2d 1003 (Colo. 1983); People v. Casey, 192 Colo. 568, 563 P.2d 2 (1977). The ruling must be followed as the law of the case unless the court determines that it is no longer sound because of changed conditions, factual errors in the previous ruling, intervening changes in the law, or manifest injustice resulting from the original ruling. People ex rel. Gallagher v. District Court, 666 P.2d 550 (Colo. 1983).
Judge Steinhardt's ruling on appeal that bad faith had to be shown before the trial court could suppress the testimony became the law of the case when Allen did not appeal it to this court. Because circumstances had not changed between the time of Judge Steinhardt's ruling and Judge Feldman's ruling, Judge Feldman was required to follow the law of the case. We further note that, after Judge Steinhardt's remand to reinstate the charge, Allen did not renew his motion to suppress the testimony of the police officer because of the unavailability of the tape. Allen's failure to raise the issue at trial prevented Judge Feldman from considering it on appeal. See A.O. Smith Harvestore Prods., Inc. v. Kallsen, 817 P.2d 1038 (Colo. 1991); Alzado v. Blinder, Robinson Co., 752 P.2d 544 (Colo. 1988).
Because of our holding, we do not address whether the suppression of Officer Coleman's testimony would be the proper sanction against the prosecution in this case, if there were a due process violation.
IV.
We hold that Allen's right to a speedy trial was not violated. After the case was dismissed, the speedy-trial period began to run anew when it was reinstated. The suppression issue is not properly before us, and we decline to address it. Judge Steinhardt's order that the police officer's testimony should not be suppressed became the law of the case.
We reverse and remand to the district court with directions to reinstate the judgment of conviction and sentence.
JUSTICE LOHR concurs in part, dissents in part, and concurs in the judgment.