Opinion
Rehearing Denied Sept. 3, 1975.
J. D. MacFarlane, Atty. Gen., Edward G. Donovan, Sol. Gen., E. Ronald Beeks, Asst. Atty. Gen., Denver, for plaintiff-appellee.
Miller & Gray, P.C., Robert Bruce Miller, Boulder, for defendant-appellant.
KELLY, Judge.
Howard appeals his jury convictions of seven counts of felony theft and one count of conspiracy. 1967 Perm.Supp., C.R.S.1963, 40--5--2 and C.R.S.1963, 40--7--35. He contends that the trial court erred in requiring him to proceed to trial in the absence of a proper bill of particulars from the People and that he was denied his right to a speedy trial. We affirm. On August 24, 1972, Howard was indicted by a grand jury and was charged in seven separate counts with thefts of checks and moneys in each of the seven months from September 1971, through March 1972. An eighth count charged conspiracy to commit these thefts. In each count, it was alleged that the checks and moneys were the property of John H. Stamper, Land Title Guarantee Company, Kassler and Company, and Title Insurance Company of Minnesota.
In December 1972, Howard filed a motion for a bill of particulars, a portion of which was granted in January 1973. In May, the People filed a motion for continuance of the trial on the ground, among others, that additional time was required for plea negotiation. Howard interposed no objection to this motion. In August, the parties filed a written stipulation, confirming their prior oral agreement, to vacate a July trial date. In the stipulation, they recited the possibility of resolving the case without trial, and Howard expressly waived his right to a speedy trial.
In November, Howard filed a motion to dismiss the prosecution. In this motion, he alleged that his waiver of his right to a speedy trial had been based on an 'understanding' between defense counsel and a deputy district attorney that the case would be presented to a newly impanelled grand jury, an 'understanding' the district attorney had subsequently declined to honor. The trial court denied this motion on January 21, 1974, after an evidentiary hearing, and the case was set for trial on April 9, 1974. The bill of particulars which had been previously ordered was filed by the People on March 4, 1974, but was not served on Howard's attorney until April 2.
I
That portion of Howard's motion for bill of particulars which was granted by the trial court states:
'The Defendant moves for particulars as to which of the following individuals, John H. Stamper, Land Title Guarantee Company, Kassler and Co., and Title Insurance Company of Minnesota, own the money referred to in each of the eight counts. Said statement is necessary in that each of said companies or individuals is listed as the owner of the 'thing of value'. If each of them is the owner of a 'thing of value' the Defendant requests knowledge as to the percentage of ownership by said individual or company.'
The particulars supplied by the People set forth, in substance, that Stamper was the 'borrower-debtor' of the funds; that Kassler and Company was the 'primary lender;' that Land Title Guarantee Company was 'disbursing agent for lender;' and that Title Insurance Company of Minnesota was 'insuror and escrowee for disbursor, borrower and lender.'
During a hearing in chambers just prior to trial, Howard's attorney argued that the information supplied by the People was both inadequate and untimely. The record does not disclose whether he was seeking a continuance or dismissal of the charges for these reasons, although he argued his inability to proceed to trial without additional specification of the facts pleaded in the indictment. The trial court ruled that the People had complied with the order requiring a bill of particulars and the trial proceeded.
On appeal, Howard again urges that the particulars furnished by the People were too little, too late. Although he has not elaborated, either in his brief or on oral argument, wherein he was prejudiced by the trial court's ruling, he asks this court to rule that the People's failure to produce a bill of particulars more swiftly and abundantly is prejudicial as a matter of law. We decline to do so.
In our view, the trial court would have been justified in denying Howard's motion for a bill of particulars in its entirety. See Self v. People, 167 Colo. 292, 448 P.2d 619. A theft prosecution is not 'the proper platform to determine the so-called legal ownership' of the property stolen, Kelley v. People, 166 Colo. 322, 443 P.2d 734, since the 'condition of the legal title is immaterial to the thief.' Sloan v. People, 65 Colo. 456, 176 P. 481. The information sought by Howard was not necessary to his defense, and the indictment and bill of particulars provided by the People sufficiently advised him of the offenses with which he was charged. See Howe v. People, 178 Colo. 248, 496 P.2d 1040; Griffin v. People, 157 Colo. 72, 400 P.2d 928.
II
Howard's contention that he was denied his right to a speedy trial rests on his continuing assertion that he was induced to waive this constitutional right by the 'assurance' of a deputy district attorney that the facts underlying the prosecution would again be presented to a new grand jury. He argues that the district attorney was bound by these assurances of his deputy and that the failure to fulfill this 'express promise by the prosecution' renders his waiver involuntary.
The testimony at the evidentiary hearing on Howard's motion to dismiss was conflicting. It was uncontroverted that a deputy district attorney and defense counsel had discussed the possibility of impaneling a new grand jury to consider the case, but the evidence was certainly inadequate to justify a finding by the trial court that these discussions had ripened into a promise, nor did the trial court so find.
Rather, the trial court found that the purpose of the continuance prior to the stipulation was to 'explore the possibility of plea negotiations,' and that, in entering into the stipulation, defense counsel 'was looking for all the advantages that he could look for in the best interests of his client.' These findings are supported by the record and do not provide the basis for declaring that Howard was denied his right to a speedy trial. See Maynes v. People, 178 Colo. 88, 495 P.2d 551.
Even were we to assume that a promise had been made and recanted, we fail to perceive what prejudice could have resulted to Howard. See People v. Buggs, Colo., 525 P.2d 421; People v. Spencer, 182 Colo. 189, 512 P.2d 260. At best, he could anticipate that a different grand jury might not return a true bill, yet even this sanguine expectation would entail additional delay in the ultimate disposition of the case. Unrequited hope does not afford the basis for a conclusion that a speedy trial has been denied, See Maynes v. People, supra, nor does it render Howard's waiver involuntary.
Judgment affirmed.
SILVERSTEIN, C.J., and RULAND, J., concur.