No. 80SA476Supreme Court of Colorado.
Decided March 23, 1981.
Page 632
[EDITORS’ NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]Page 633
[EDITORS’ NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]Page 634
Original Proceeding
J. Gregory Walta, State Public Defender, David D. Wymore, Deputy, Steven R. Gayle, Deputy, for petitioner.
Stuart A. Van Meveren, District Attorney, Loren B. Schall, Assistant, Stephen J. Roy, Deputy, for respondents.
En Banc.
JUSTICE QUINN delivered the opinion of the Court.
[1] In this original proceeding under C.A.R. 21, petitioner Ralph Jeffrey (petitioner) seeks relief in the nature of prohibition in connection with criminal charges of first degree criminal trespass, section 18-4-502, C.R.S. 1973 (1978 Repl. Vol. 8), and conspiracy to commit that crime, sections 18-2-201 and 18-4-502, C.R.S. 1973 (1978 Repl. Vol. 8), presently pending against him in the district court of Larimer County. Petitioner claims that the prosecution of these charges is barred by the compulsory joinder provisions of section 18-1-408(2), C.R.S. 1973 (1978 Repl. Vol. 8). We issued a rule to show cause and we now make the rule absolute. I.
[2] The facts underlying this proceeding may be summarized from the preliminary hearing and a subsequent hearing on the petitioner’s motion to dismiss. The petitioner was acquainted with Gary Ryder. Ryder learned that the woman with whom he had been living for about a year, Vada Kay Fansler, and the infant he had allegedly fathered by her were residing with another man, Clint Rice, in Rice’s house trailer located at 901 West 10th Street in Loveland, Colorado. Ryder became angry at the news and on May 10, 1980, he drove over to the Rice trailer with the petitioner and two others for the purpose of assaulting Rice and removing the child from the residence.
Page 635
on May 15, a deputy district attorney for the eighth judicial district filed a direct information in the respondent district court charging the petitioner with the felonies of first degree criminal trespass against the dwelling of Rice on May 10, 1980, and conspiracy to commit first degree criminal trespass on the same day.[3]
[5] On June 24, 1980, the petitioner appeared pro se in the Larimer County Court. A deputy district attorney for the eighth judicial district appearing on behalf of the people executed a written stipulation with the petitioner that upon the petitioner’s plea of guilty to third degree assault, a deferred judgment and sentence would enter.[4] Pursuant to this agreement the petitioner tendered a plea of guilty and the court accepted it. [6] The petitioner appeared in the respondent court with his court appointed attorney for a preliminary hearing on the felony charges on August 12, 1980. The court found probable cause and set the case for arraignment and trial. The petitioner then filed a motion to dismiss the felony charges on the ground that they were based on the same criminal episode as the county court charge of third degree assault and accordingly were barred by section 18-1-408(2). The respondent court heard evidence on the motion and, apparently relying on the “same offense” principle of double jeopardy, denied the motion on the basis that there were “sufficient differences between the charges to justify the separate actions” and”[e]ach activity is sufficiently separate even though one occurred immediately after the other.”[5] The petitioner thereafter commenced an original proceeding in this court. [7] We conclude that while the federal and state constitutional guarantees against double jeopardy do not justify the dismissal of the pending felony charges, the compulsory joinder requirements of section 18-1-408(2) prohibit the prosecution of the petitionerPage 636
for these offenses and require dismissal of the action.
II.
[8] The United States and Colorado Constitutions prohibit placing an accused twice in jeopardy for the same offense. U.S. Const. Amend. V Colo. Const. Art. II, Sec. 18. The circumstances under which an accused is considered to have been twice placed in jeopardy are codified in sections 18-1-301 and 18-1-302, C.R.S. 1973 (1978 Repl. Vol. 8). Jeopardy attaches in a jury trial when the jury is sworn. Crist v. Bretz, 437 U.S. 28, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978), or in a bench trial when the first witness is sworn, Serfass v. United States, 420 U.S. 377, 95 S.Ct. 1055, 43 L.Ed.2d 265 (1975), or when a plea of guilty has been accepted by the court, Markiewicz v. Black, 138 Colo. 128, 330 P.2d 539 (1958); section 18-1-301(1)(c), C.R.S. 1973 (1978 Repl. Vol. 8).
(1980); Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306(1932); People v. Mendoza, 190 Colo. 519, 549 P.2d 766 (1976) People v. Salas, 189 COlo. 111, 538 P.2d 437 (1975); People v. Hancock, 186 Colo. 30, 525 P.2d 435 (1974); People v. Bugarin, 181 Colo. 62, 507 P.2d 875 (1973). [10] Section 18-1-302(1)(a)(II) formalizes the collateral estoppel aspects of double jeopardy by preventing a second prosecution for the same conduct based on a provision of law different from the former prosecution or based on different facts, unless the offense in the subsequent prosecution requires proof of a fact not required by the former prosecution and the law defining each offense is intended to prevent a substantially different harm or evil.[6] See, e.g., People v. Horvat, 186 Colo. 202, 527 P.2d 47 (1974). This statutory prohibition does not preclude the pending prosecution. The crimes of first degree criminal trespass and conspiracy to commit first degree criminal trespass require proof of facts different from those required for third degree assault. Also, the felonies of first degree criminal trespass and conspiracy to commit that offense are directed towards the security of one’s dwelling while the misdemeanor of third degree assault seeks to protect bodily integrity. Thus, the only possible bar to the pending prosecution is the compulsory joinder provisions of section 18-1-408(2).
III.
[11] While criminal conduct resulting in more than one offense may subject the offender to prosecution for each offense, section 18-1-408(1), C.R.S. 1973 (1978 Repl. Vol. 8), the compulsory joinder provisions of section 18-1-408(2) extend further than the constitutional guarantee against double jeopardy and require that all charges be joined in a single prosecution under the following circumstances:
Page 637
[12] “If the several offenses are known to the district attorney at the time of commencing the prosecution and were committed within his judicial district, all such offenses upon which the district attorney elects to proceed must be prosecuted by separate counts in a single prosecution if they are based on the same act or series of acts arising from the same criminal episode. Any offense not thus joined by separate count cannot thereafter be the basis of a subsequent prosecution.” [13] The purposes of compulsory joinder are to protect the accused against the oppressive effect of sequential prosecutions based on conduct occurring during the same criminal episode and to conserve judicial and legal resources that otherwise would be wasted in duplicative proceedings E.g., Ruth v. County Court, 198 Colo. 6, 595 P.2d 237 (1979), affirming 38 Colo. App. 459, 563 P.2d 956 (1977); People v. Freeman, 196 Colo. 238, 583 P.2d 921 (1978); People v. Tulipane, 192 Colo. 476, 560 P.2d 94 (1977) People v. District Court, 183 Colo. 101, 515 P.2d 101 (1973); Model Penal Code § 108(2) (Tent. Draft No. 5, 1956); II ABA Standards for Criminal Justice, Joinder and Severance, Standard 13-2.3(c), commentary at 13.27-28 (2d ed. 1980). The statute can be broken down into the following elements, all of which must be satisfied in order for the bar to apply to a subsequent prosecution: (1) several offenses committed within the same judicial district; (2) a prosecution against the offender; (3) prosecutorial knowledge of the several offenses at the commencement of the prosecution; (4) the several offenses arising from the same criminal episode; and (5) the offender previously having been subjected to a single prosecution. An analysis of the statutory elements leads us to conclude that the conditions for the statutory bar have been satisfied. A.
[14] There is no dispute over the fact that all offenses filed against the petitioner were committed within the same judicial district. All the offenses occurred in the County of Larimer, which is within the eighth judicial district, section 13-5-109(1), C.R.S. 1973, and all offenses constituted violations of state law.[7] The district attorney for the eighth judicial district was involved in the prosecution of the case filed in the Larimer County Court as well as the pending felony proceeding in the respondent court.
B.
[15] The next requirement of the compulsory joinder statute is that there be a prosecution against the offender. Our statutes and rules provide for the initiation of a prosecution for a misdemeanor offense in the county court by the issuance of a summons and complaint. Section 16-2-104, C.R.S. 1973 (1978 Repl. Vol. 8); Crim. P. 4.1(b). The petitioner was issued a summons and complaint on May 12, 1980, pursuant to simplified procedures for misdemeanor prosecutions. Thus, the second requirement of section 18-1-408(2) has been satisfied.
C.
[16] The statutory bar of section 18-1-408(2) requires that the several offenses be known to the district attorney “at the time of commencing the prosecution.” The critical inquiry here is whether the requirement of prosecutorial knowledge refers to that stage of the criminal proceeding at which a charging document is filed or, instead, to the stage at which jeopardy attaches. We construe the statutory language to mean prosecutorial knowledge at the commencement of the jeopardy phase of the criminal prosecution.
Page 638
[17] Under simplified procedures it is not likely that the district attorney would know of the initiation of criminal proceedings by the peace officer’s issuance of a summons and complaint. Even with felony filings under Crim. P. 5 and 7, it is conceivable that the district attorney, either because of incomplete investigation or inadvertence, might initiate a prosecution for less than all of the offenses arising from the same criminal episode. A construction of section 18-1-408(2) that permits multiple prosecutions for a series of acts arising from the same criminal episode merely because of prosecutorial lack of knowledge at the filing stage of the first case frustrates the salutary purpose of the joinder requirement. Such a construction rewards prosecutorial inattention to the joinder issue and adds to the accused’s burden of defense by prolonging the anxiety and increasing the expenses associated with multiple prosecutions. Furthermore, it proliferates, rather than alleviates, the unnecessary expenditure of criminal justice resources on duplicative prosecutions, the issues of which readily can be resolved in a single case. The joint trial of offenses arising from the same criminal episode “enables the state to avoid the duplication of evidence required by separate trials, to reduce the inconvenience to victims and witnesses, to minimize the time required to dispose of the offenses, and to achieve a variety of other economies in connection with prosecutorial and judicial resources.” II ABA Standards for Criminal Justice, Joinder and Severance, Standard 13-2.1, commentary at 13.12 (2d ed. 1980). [18] The overriding purposes of the joinder requirement are achieved by a focus on prosecutorial knowledge at that stage of the initial prosecution at which jeopardy commences. If, at that point, the district attorney has knowledge of other offenses that could have been joined in a single prosecution under Crim. P. 8(a), and had sufficient opportunity to add the additional offenses by amendment under Crim. P. 7(e) or to consolidate separately filed cases into a single prosecution under Crim. P. 13, but took no action in that respect, the district attorney cannot thereafter prosecute the accused for other offenses based on the same act or series of acts arising from the same criminal episode. Such a rule not only protects an accused from unnecessary sequential prosecutions but also safeguards the “ethical and diligent prosecutor from technical, arbitrary bans to subsequent prosecution of companion offenses discoverable too late to permit consolidation.” II ABA Standards for Criminal Justice, Joinder and Severance, Standard 13-2.3(c), commentary at 13.27-28 (2d ed. 1980). [19] Liberal amendment and consolidation are particularly appropriate in the context of the statutory joinder requirements of section 18-1-408(2). See People v. Freeman, supra. Crim. P. 7(e) authorizes the court to permit an information to be amended as to form and substance at any time before trial. Crim. P. 13 permits the court to order “two or more indictments, informations, complaints, or summons and complaints to be tried together if the offenses . . . could have been joined in a single indictment, information, complaint or summons and complaint.” In the event the accused objects to the amendment or consolidation and the court denies the prosecutor’s motion, section 18-1-408(2) would not bar sequential prosecutions because the failure to join is not the result of prosecutorial neglect. Rather, non-joinder in that instance results from the accused’s opposition to a joint prosecution. See Jeffers v. United States, 432 U.S. 137, 97 S.Ct. 2207, 53 L.Ed.2d 168 (1977); II ABA Standards for Criminal Justice, Joinder and Severance, Standard 13-2.3(c) (2d ed. 1980). Likewise, if the accused consents to successive prosecutions, there is a waiver of his statutory right to joinder in one prosecution. See United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267(1976). [20] This construction of section 18-1-408(2) follows in the wake of our prior interpretation of the statute. In People v. District Court, supra, we noted that section 18-1-408(2) does not prohibit the court from permitting the district attorney to add to a criminal information other counts that
Page 639
arise from the same criminal episode as the original count so long as the additional counts are filed prior to the jeopardy stage of the prosecution. The compulsory joinder statute, in other words, does not insulate the accused from prosecution for “the same criminal episode offenses” until jeopardy attaches to the first prosecution. Ruth v. County Court, supra; People v. Freeman, supra; People v. District Court, supra.
Jeopardy attaches upon the court’s acceptance of a plea of guilty Markiewicz v. Black, 138 Colo. 128, 330 P.2d 539 (1958); section 18-1-301(1)(c), C.R.S. 1973 (1978 Repl. Vol. 8), and the attachment of jeopardy is what triggers the statutory bar of section 18-1-408(2).
D.
[23] We next consider whether the felony offenses of first degree criminal trespass and conspiracy to commit first degree criminal trespass arose from the same criminal episode as third degree assault. The compulsory joinder requirement of section 18-1-408(2) is broader than both the “same offense” principle of double jeopardy as codified in section 18-1-301 and the collateral estoppel effect of a prior determination of an ultimate fact as outlined in section 18-1-302. The “same criminal episode” terminology of section 18-1-408(2) goes beyond the same act or conduct resulting in more than one crime. See II ABA Standards for Criminal Justice, Joinder and Severance, Standard 13-1.2, commentary at 12.10 (2d ed. 1980). The test for the “same criminal episode” under section 18-1-408(2) should be identical to the standard for joinder under Crim. P. 8(a), since both the statute and the rule employ practically identical language.[8] For purposes of joinder under Crim. P. 8(a), “a series of acts arising from the same criminal episode” would include physical acts that are committed simultaneously or in close sequence, that occur in the same place or closely related places, and that form part of a schematic whole. II
Page 640
ABA Standards for Criminal Justice, Joinder and Severance, Standard 13-1.2, supra; see also People v. McCrary, 190 Colo. 538, 549 P.2d 1320 (1976); People v. Walker, 189 Colo. 545, 542 P.2d 1283 (1975).
[24] The question whether several criminal acts arise from the same criminal episode for purposes of the compulsory joinder statute depends upon an analysis of the facts of the particular case. See, e.g., Ruth v. County Court, 198 Colo. 6, 595 P.2d 237 (1979); Brutcher v. District Court, 195 Colo. 579, 580 P.2d 396 (1978); Hunter v. District Court, 193 Colo. 308, 565 P.2d 942 (1977). In People v. Tulipane, 192 Colo. 476, 479, 560 P.2d 94, 96 (1977), we cited as an example of compulsory joinder tandem charges (burglary and theft) arising out of multiple acts committed in close temporal sequence and at the same location.[9] Here the record establishes that the petitioner and Ryder, while driving over to Rice’s trailer in Loveland, planned and agreed to the assault of Rice and the removal of the child. Upon their arrival at the trailer they engaged in overt acts in pursuance of their illegal agreement (the conspiracy charge). By law a conspiracy is deemed a continuing offense which terminates when the crime or crimes which are its object are committed. Section 18-2-204, C.R.S. 1973 (1978 Repl. Vol. 8). Ryder and the petitioner unlawfully entered the trailer (the first degree trespass charge) and immediately thereafter the petitioner struck Fansler while removing the child from the trailer (the third degree assault charge). Although each offense involved a separate act, the acts themselves occurred sequentially in a narrow time frame and in virtually the same place. Certainly, these offenses are sufficiently related as to require their joinder under Crim. P. 8(a) as based on “a series of acts arising from the same criminal episode.” E.
[25] The last inquiry is whether the petitioner was subjected to a single prosecution for purposes of the compulsory joinder statute. Ruth v. County Court, supra, settled the meaning of a single prosecution. Ruth pled guilty to one traffic offense but thereafter was subjected to a separate prosecution for two other traffic offenses arising from the same criminal episode. In holding that the subsequent prosecution was barred under section 18-1-408(2), this court stated:
Page 641
[28] The rule to show cause is made absolute and the cause is remanded to the respondent court with directions to dismiss the pending information charging the petitioner with first degree criminal trespass and conspiracy to commit that offense.