Opinion
No. 99CA0360
October 26, 2000
Appeal from the District Court of El Paso County, Honorable Gilbert A. Martinez, Judge, No. 97CR2978.
ORDER AFFIRMED, JUDGMENT REVERSED, AND CAUSE REMANDED WITH DIRECTIONS.
Jeanne M. Smith, District Attorney, David H. Zook, Chief Deputy District Attorney, Colorado Springs, Colorado; Ken Salazar, Attorney General, John J. Krause, First Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellant and Cross-Appellee
David S. Kaplan, Colorado State Public Defender, Dana Nichols, Deputy State Public Defender, Douglas D. Barnes, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellee and Cross-Appellant
The Fourth Judicial District Attorney (District Attorney) appeals the disqualification of her office and the appointment of a special prosecutor in a criminal action against the defendant, Michael Witty. In that action, defendant entered a guilty plea to the charge of felony theft, but with the District Attorney's consent, specifically reserved the right to appeal on the basis that his speedy trial rights had been violated. Alleging violation of those rights, defendant cross-appeals. We affirm the disqualification and reverse the conviction.
Defendant was charged by information on August 14, 1997, and entered a not guilty plea on February 9, 1998. On March 10, 1998, defendant moved to disqualify the District Attorney and for the appointment of a special prosecutor.
In seeking disqualification of the District Attorney, defendant alleged that he had been the Pension Fund Manager for the El Paso County Retirement Plan, that in an earlier case, he had been charged with 46 felony counts of theft involving the Plan, and that he had been ordered to pay approximately $500,000 in restitution. The motion for disqualification also alleged that all employees of the District Attorney's office were members of the Plan, that the office had been disqualified in the previous case, that the Plan had sued the defendant in a civil action, and that defendant had counterclaimed against the Plan.
The trial court granted the motion on June 4, 1998, and on July 20 appointed the District Attorney of the Second Judicial District to be special prosecutor.
Seeking to overturn the disqualification, the District Attorney filed a petition for a writ in the nature of prohibition in the supreme court on July 7, 1998. The supreme court denied the petition the next day.
The District Attorney then appealed the issue of her disqualification to this court on July 20, 1998. Because there was no final judgment, this court dismissed that appeal without prejudice on December 8, 1998, issuing its mandate on January 4, 1999.
On January 12, 1999, 337 days after entry of a not guilty plea, defendant changed his plea to guilty, reserving the right to appeal on speedy trial grounds, and this appeal and cross-appeal followed.
I. A.
In appealing its disqualification from prosecuting this case, the District Attorney's principal contention is that the doctrine of separation of powers prohibits the court from disqualifying an elected district attorney on grounds other than those set forth by statute. We are not persuaded.
In support of this argument, the District Attorney relies upon the following constitutional and statutory provisions:
District Attorneys shall . . . perform such duties as provided by law. Colo. Const. art. VI, § 13.
Every District Attorney shall appear on behalf of the state and the several counties of his district: in all indictments, actions, and proceedings which may be pending in the district court in any county within his district wherein the state or the people thereof or any county of his district may be a party. Section 20-1-112(1), C.R.S. 2000 (emphasis supplied)
[T]he Chief Deputy District Attorney has all the powers of the District Attorney. Section 20-1-204, C.R.S. 2000.
The District Attorney points to three instances in which the General Assembly had authorized the appointment of a special prosecutor: interest in a case (§ 20-1-107, C.R.S. 2000); sickness or absence (§ 20-1-108, C.R.S. 2000); and refusal to prosecute (§ 16-5-209, C.R.S. 2000). The District Attorney argues that a court may disqualify her on one of these grounds and no other, and because "appearance of impropriety" is not one of the statutorily enumerated grounds for disqualification, the District Attorney argues that the court erred in disqualifying her on this basis.
In making this argument, the District Attorney urges that we limit the following language in People v. Garcia, 698 P.2d 801, 806 (Colo. 1985):
[T]he determination of whether a District Attorney and his staff should be disqualified is a matter largely within the discretion of the district court.
Instead, the District Attorney urges us to follow an earlier opinion in which the court stated that: "Under the Constitution, the legislature is the only body empowered to circumscribe the duties of the district attorney." People ex rel. Losavio v. Gentry, 199 Colo. 153, 157, 606 P.2d 57, 67 (1980).
In Losavio, the district attorney had requested the appointment of a special prosecutor to investigate allegations of budgetary improprieties in certain county agencies. Because the district attorney's office might be a subject of the investigation, the district attorney felt he was precluded from conducting the investigation. The district court approved the motion and appointed a special prosecutor, Gentry. Gentry conducted the investigation, the result of which was the indictment of a county commissioner on charges of embezzlement of public property.
Thereafter, Gentry also sought to prosecute the county commissioner on a charge of theft of a trailer. The county commissioner filed a motion challenging Gentry's authority to investigate the alleged theft. The trial court denied the motion, but the supreme court disagreed, holding that the special prosecutor had exceeded his authority in investigating and prosecuting anything beyond the scope of budgetary irregularities.
In our view, the Losavio case is distinguishable on its facts, and the quoted language cannot be held to limit the power of a court to exercise its discretion to disqualify a district attorney on the basis of an appearance of impropriety.
Without addressing the separation of powers issues raised here, Colorado appellate courts have approved the disqualification of district attorneys in cases where the appearance of impropriety exists. See Pease v. District Court, 708 P.2d 800 (Colo. 1985) (district attorney disqualified from prosecuting case in which two former prosecutors from that office were material witnesses); People v. Stevens, 642 P.2d 39 (Colo.App. 1981) (convictions reversed where trial court denied defendant's motion for appointment of special prosecutor on ground that defendant's prior attorney worked in office of district attorney who tried the case); see also People v. Garcia, supra. Cases from other jurisdictions cited by the District Attorney are distinguishable on their facts, or otherwise do not support her position.
Board of Commissioners v. Crump, 18 Colo. App. 59, 70 P. 159 (1902) recognized that a trial court has the inherent power to appoint a special prosecutor to assist a district attorney; but, the case does not deal with the question of disqualification.
Although premised on interpretation of the California Constitution,People v. Superior Court, 19 Cal.3d 255, 561 P.2d 1164 (1977) does address the issue whether judicial disqualification of the district attorney is a separation of powers violation. There, the district attorney charged the defendant with murder in a case which the victim's mother was employed as a clerk in the district attorney's office. The trial court concluded that, under these circumstances, the district attorney should be disqualified and, therefore, directed the attorney general to prosecute the case. The attorney general appealed, claiming a separation of powers violation.
The California Supreme Court disagreed, holding that the California constitutional prohibition against any branch of state government exercising the powers of another branch did not prohibit judges from disqualifying a prosecutor whose participation would "taint the proceeding." In so holding, it noted that:
Once the decision to prosecute has been made, the disposition of the charge becomes a judicial responsibility. A denial of a trial judge's authority to disqualify a district attorney would undermine the judge's traditional power to enforce the law, and this could lead to absurd results. For example, a trial judge without power to recuse a prosecutor for a conflict of interest would be forced to preside over a proceeding that the judge finds `improper and which appears destined for reversal on appeal.'
People v. Superior Court, supra, 19 Cal. 3d at 265, 561 P.2d at 1171.
Finally, in words applicable here, in People v. Superior Court, 19 Cal.3d 255, 270, 561 P.2d 1164, 1175, the court concluded its opinion by stating that:
[I]t was within the bounds of the court's discretion to determine that the prosecutor might at least appear to have an emotional stake in the case of the sort which could disturb his exercise of impartial judgment in pretrial and trial proceedings. (emphasis added)
Consequently, we hold that there was no violation of the separation of powers doctrine.
B.
Relying upon People v. Jiminez, 187 Colo. 97, 528 P.2d 913 (1974), the District Attorney next argues that, by engaging in plea negotiations, defendant waived his standing to request disqualification.
However, in Jiminez, the supreme court held that, if a defendant knows of grounds for disqualification prior to trial but makes no objection or request for disqualification, he or she may not assert that ground as a basis for reversal. That case has no relevance here. Hence, the contention fails.
C.
We also reject the District Attorney's argument that, under the facts before it, the trial court abused its discretion in ruling that there was an appearance of impropriety. Indeed, had the court failed to disqualify the District Attorney's Office on these facts, defendant would have solid ground for an appeal on the issue.
II.
In the cross-appeal, defendant contends that the trial court erred when it declined to dismiss the charges against him for violation of the speedy trial statute. We agree that defendant's statutory speedy trial rights were violated.
Section 18-1-405(1), C.R.S. 2000, provides that:
[I]f a defendant is not brought to trial on the issues raised by the complaint, information, or indictment within six months from the date of the entry of a plea of not guilty, he shall be discharged from custody [and] . . . the pending charges shall be dismissed . . . .
Under § 18-1-405(6), C.R.S. 2000, certain periods are to be excluded in computing the time within which a defendant shall be brought to trial. Among these is the following:
(b) The period of delay caused by an interlocutory appeal whether commenced by the defendant or by the prosecution;
(emphasis added)
Whether the speedy trial period has run turns on treatment of the 5 l/2 month period between July 20, 1998, when the District Attorney first appealed to this court, and January 4, 1999, when the appeal was dismissed. If that appeal was "interlocutory" under § 18-1-405(1)(b), C.R.S. 2000, the speedy trial period has not run; conversely, if it was not, defendant's speedy trial rights were violated.
The Attorney General argues that the speedy trial period was extended both by the District Attorney's original proceeding in the supreme court and by the appeal to this court because each constitutes an "interlocutory appeal" which tolls the running of the speedy trial statute. On the other hand, the District Attorney's brief asserts that: "never did the prosecution pursue an interlocutory appeal under C.R.S. 16-12-102(2) [sic]," but nevertheless argues that defendant's speedy trial rights were not violated. Defendant argues that the speedy trial period had run because there was no interlocutory appeal. We agree with defendant.
In People v. Gallegos, 946 P.2d 946, 953 (Colo. 1997), the supreme court held that an "interlocutory appeal," for purposes of the speedy trial statute, is an:
[A]ppeal which is taken in good faith before a defendant has been convicted and sentence is imposed, and which necessarily disrupts the course of proceeding to a final resolution of the allegations before the court. An appeal is taken in good faith when the assertion that such an appeal is authorized has arguable merit, is not taken for the purpose of delay, and the issues raised have a substantial effect on the prosecution's case. An appeal necessarily disrupts the course of proceeding to a final resolution when, absent a stay of the proceedings, there can be no effective remedy.
(emphasis added)
Under these criteria, the District Attorney's appeals were not interlocutory; the issue that was appealed — the order disqualifying the District Attorney — had no substantial effect on the prosecution's case, given the pending appointment of a special prosecutor. While an order disqualifying the District Attorney's office may create some delay attributable to the defendant, it has no substantial effect on the prosecution's case for purposes of determining whether appeal of that order is an interlocutory appeal.
When a competent special prosecutor has been appointed, the case can proceed, and the District Attorney's interest in ensuring that justice is done has been met. See § 20-10-1-107, C.R.S. 2000; Harris v. People, 888 P.2d 259 (Colo. 1995). Such was the case here. A defendant, presumed innocent, should not have his or her period of incarceration extended while the government sorts out who should prosecute.
When the one month period between defendant's not guilty plea and the filing of the motion for a special prosecutor is added to the time between the granting of the motion and the plea of guilty, the six-month speedy trial period was exceeded.
Accordingly, we conclude the trial court should have granted defendant's motion to dismiss the charges against him.
The disqualification of the District Attorney is affirmed. The judgment of conviction is reversed, and the cause is remanded with directions to dismiss the charges.
JUDGE TAUBMAN and JUDGE NIETO concur.