Opinion
No. 80SA343
Decided November 24, 1980. Rehearing denied December 15, 1980.
Original Proceeding
Dale Tooley, District Attorney, Brooke Wunnicke, Chief Appellate Deputy, for petitioner.
Craig A. Murdock, for respondents.
En Banc.
In this original proceeding the People seek relief in the nature of prohibition directing the respondent district court to deny the defendant Robert Sunshine's ("Sunshine") motion seeking discovery of the transcript of a colloquy between the district attorney and the grand jury. The court granted the defendant's motion for discovery, but granted a stay while the district attorney filed an original proceeding under C.A.R. 21. We issued a rule to show cause and now make that rule absolute.
Our opinion in People v. District Court for the Second Judicial District, 200 Colo. 65, 610 P.2d 490 (1980), determines the issue before us. In that case, Jerry A. McFarland, who was indicted along with Sunshine by the 1978 statutory Denver Grand Jury, sought a transcript of the same colloquy between the district attorney and the grand jury that Sunshine seeks here. The district court ordered the transcript produced for an in camera inspection, and then made it available to McFarland to assist him in preparing a motion for a preliminary hearing and dismissal of the indictment due to the district attorney's allegedly improper conduct before the grand jury. The district attorney immediately sought a rule prohibiting the district court from giving the transcript to counsel for McFarland and we directed the trial court not to deliver it to defense counsel. People v. District Court, supra.
The original motion for the transcript had been made by Sunshine, but neither he nor his counsel was present at the hearing when the district judge ordered the transcript to be delivered to defendant McFarland.
On January 7, 1980, we stayed delivery of a transcript of the colloquy to Sunshine pending our resolution of People v. District Court. After that case was announced on April 7, 1980, the stay was vacated and the district court was instructed to rule on Sunshine's discovery motion in accordance with the opinion in People v. District Court. Sunshine's motion was heard on July 8, 1980.
People v. District Court directed the trial court, when considering disclosure to a defendant of a transcript containing colloquy between the district attorney and the grand jury, to decide whether there is "more than a speculative basis for overturning an indictment because of improper conduct by the district attorney in securing a true bill." Id. at 493. The trial court's decision
". . . requires the weighing of a number of conflicting factors, including the traditional requirement that grand jury proceedings be conducted in secrecy. [Footnote omitted.] While the defendant's need for access to all materials relevant to his defense should be given great weight, the trial judge must also consider the grand jury's right and need for confidentiality. Only in those cases where clear examples of inappropriate conduct by the district attorney may affect the validity of the defendant's indictment or the determination of probable cause, should the trial court sacrifice the confidentiality of the grand jury proceedings and release a transcript of the grand jury colloquy to defense counsel."
At the hearing on Sunshine's discovery motion, the trial court judge expressed confusion as to whether the decision in People v. District Court directed him to consider Sunshine's motion in light of the criteria set forth in the opinion or to deny Sunshine's request for discovery of the identical transcript denied to McFarland. The trial court chose the former course. After finding that a large portion of the colloquy referred to Sunshine and only a small portion of the colloquy applied to McFarland, the trial court ruled that the colloquy contained improper statements by the district attorney and that there was more than a merely speculative basis for overturning the indictment.
However, the opinion in People v. District Court specifically stated that it controlled the defendant Sunshine's discovery request. The rule issued ordered the respondent court to refrain from enforcing similar discovery orders at the request of the defendant Sunshine and other defendants. In People v. District Court, we reviewed the colloquy transcript and found that the district attorney's statements did not furnish a potential basis for invalidating the probable cause determination on grounds of misconduct. Although there were more references in the transcript to the defendant Sunshine than to McFarland, the comments, if improper as to one, would be equally improper as to the other.
We have reviewed the sealed record containing the transcript of the grand jury colloquy a second time, and again we conclude that the trial court's order that the colloquy be disclosed to defense counsel was an abuse of discretion.
Accordingly, the rule to show cause is made absolute.