Opinion
No. 75-524
Decided December 11, 1975. Rehearing denied January 15, 1976. Certiorari denied March 22, 1976.
Trial court dismissed information charging second degree assault on basis that material defense witness could not be located, and the People appealed.
Reversed
1. CRIMINAL LAW — Dismissal of Information — Basis — Missing Defense Witness — Due Process Considerations — State Not at Fault — Diligent Attempts to Locate — On Court's Own Motion — Error. Due process did not require that trial court dismiss information charging defendant with second degree assault when a six-month effort by the District Attorney and the defense failed to locate an essential defense witness who was unavailable through no fault of the prosecution, and the court's dismissal of the action on its own motion prior to trial and over the objection of the District Attorney was therefore error.
Appeal from the District Court of the County of Arapahoe, Honorable Richard D. Greene, Judge.
Robert R. Gallagher, Jr., District Attorney, Jerry B. Tompkins, Deputy District Attorney, for plaintiff-appellant.
Leland S. Huttner, for defendant-appellee.
Division II.
The defendant, George Robert Butz, was charged with second degree assault. Prior to trial, the trial court, after several continuances, dismissed the information on its own motion, on the basis that a material witness was unavailable and that therefore the defendant would be denied a fair trial. The People appeal that dismissal. We reverse.
A preliminary hearing was held on the charge and the defendant bound over for trial to a jury. The case was continued due to the unavailability of Mrs. Dorothy Eby, who is the former wife of the defendant and the present wife of the victim. The District Attorney and the defense expended considerable effort in their attempts to locate the missing witness, but were unable to subpoena her. After several continuances, and more than six months after the original charge, the trial court ordered a dismissal of the information. It stated that the unavailability of Mrs. Eby, a material witness, precluded the defendant from presenting a defense, and receiving a fair trial.
While due process does require that the state afford the defendant an opportunity to present witnesses in his behalf, it does not guarantee him a dismissal if his witness is unavailable. It does require that the state make a good faith effort to provide the defendant with witnesses with which to present his theory of the defense, but where the state is blameless for the loss of evidence or is unable to subpoena a witness and "where it has the burden of proving each issue in contest beyond a reasonable doubt, . . . fundamental fairness does not require that prosecution cease." United States ex rel. Parson v. Anderson, 354 F. Supp. 1060 (D. Del.).
The defense concedes that in this case the prosecution has played no role in causing the deficiency and that the People have made every attempt to locate the missing witness. Therefore, it was not constitutionally required that the trial court dismiss this action against the defendant because an important witness was unavailable. See United States ex rel. Williams v. Deegan, 279 F. Supp. 53 (D.S.D. New York); Moore v. Beto, 320 F. Supp. 469 (D.S.D. Tex.).
Since we have determined that due process did not require the dismissal of this action, we must next determine whether the trial court acted within its authority in entering a dismissal on its own motion.
[1] The Colorado Rules of Criminal Procedure state two situations where the court may dismiss a case prior to trial on its own motion. Crim. P. 48(b) allows the trial court to dismiss where there is unnecessary delay in the filing of an indictment or information, and, with certain exceptions, mandates such dismissal where the defendant is not brought to trial within six months of the entry of a plea of not guilty. These are the only two specific situations where a trial court is authorized under the rules to dismiss an action on its own motion prior to trial. A trial court may not dismiss an action on behalf of the state for any other reason prior to trial over the objection of the District Attorney. People v. Dennis, 164 Colo. 163, 433 P.2d 339; People v. Zobel, 54 Colo. 284, 130 P. 837. Accordingly, we hold that the trial court may not, on its own motion, dismiss an action on behalf of the defendant prior to trial over the objection of the District Attorney where such dismissal is not authorized under the rules and is not required by due process. Therefore it was error, under the facts of this case, for the court to have dismissed the information.
Judgment reversed and cause remanded with directions to reinstate the information.
JUDGE PIERCE and JUDGE KELLY concur.