Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Mosley v. State

Supreme Court of Colorado, En Banc

April 10, 2017

Victor Mosley, Petitioner:
v.
The People of the State of Colorado. Respondent:

         Certiorari to the Colorado Court of Appeals Court of Appeals Case No. 08CA1565

          Attorneys for Petitioner: Douglas K. Wilson, Public Defender Karen N. Taylor, Deputy Public Defender Denver, Colorado

          Attorneys for Respondent: George H. Brauchler, District Attorney, Eighteenth Judicial District Richard Orman, Senior Deputy District Attorney David C. Jones, Senior Deputy District Attorney Centennial, Colorado

          MÁRQUEZ JUSTICE

         ¶1 A jury convicted Victor Mosley of sexually assaulting his youngest daughter. The court of appeals later reversed his convictions and remanded the case for a new trial. People v. Mosley, 167 P.3d 157 (Colo.App. 2007). Mosley now contends that the trial court violated his statutory speedy trial right on retrial when it granted the prosecution's request for a continuance. Consequently, he argues, the charges against him must be dismissed.

         ¶2 This case requires us to examine the interplay between various subsections of Colorado's speedy trial statute, section 18-1-405, C.R.S. (2016), and specifically, whether the exclusions listed in subsection (6) of the statute apply to the six-month speedy trial calculation for a new trial following reversal of a defendant's convictions on appeal.[1]

         ¶3 Subsection (1) of the speedy trial statute provides that if a criminal defendant is not brought to trial within six months from the date of the entry of a plea of not guilty, the defendant shall be discharged from custody and the pending charges shall be dismissed. § 18-1-405(1). Subsection (2) provides that, if a defendant's convictions are reversed on appeal, "any new trial must be commenced within six months after the date of the receipt by the trial court of the mandate from the appellate court." § 18-1-405(2). Subsection (6) lists circumstances that are excluded from the speedy trial calculation, including delay resulting from a continuance granted because material evidence is unavailable despite the prosecutor's diligent efforts to obtain such evidence. See § 18-1-405(6)(g)(I).

         ¶4 Subsection (6) provides that these exclusions from the speedy trial calculation apply "[i]n computing the time within which a defendant shall be brought to trial as provided in subsection (1)." § 18-1-405(6) (emphasis added). Mosley contends that, because this language refers only to subsection (1), the exclusions listed in subsection (6) do not apply to the speedy trial calculation for a new trial under subsection (2). He argues that the trial court therefore erred in granting the prosecution's request for a continuance of his second trial under subsection (6)(g)(I) due to the unavailability of the complaining witness. He contends that his speedy trial right was violated because his new trial was held beyond the six-month deadline in subsection (2), and therefore, the charges against him must be dismissed. In the alternative, Mosley contends that, even assuming the exclusions in subsection (6) apply to the speedy trial calculation for a new trial under subsection (2), the continuance in this case was unjustified because the prosecution failed to act with due diligence to locate the complaining witness, as required by subsection (6)(g)(I).

         ¶5 The court of appeals rejected Mosley's arguments, and we granted Mosley's petition for certiorari review. Construing the speedy trial statute as a whole to give consistent, harmonious, and sensible effect to all its parts, we hold the exclusions in subsection (6) of the statute apply to the six-month speedy trial calculation for a new trial following the reversal of a defendant's conviction on appeal. We further hold that the trial court did not abuse its discretion by finding that the prosecution exercised due diligence in attempting to locate and obtain the presence of the complaining witness, and accordingly, did not violate Mosley's statutory speedy trial right when it granted the prosecution's request for a continuance under subsection (6)(g)(I). We therefore affirm the judgment of the court of appeals.

         I. Facts and Procedural History

         ¶6 Victor Mosley was convicted of three counts of sexual assault on a child by a person in a position of trust (pattern of abuse), nine counts of sexual assault on a child by a person in a position of trust, and one count of crime of violence. People v. Mosley, 167 P.3d 157, 158 (Colo.App. 2007). The prosecution alleged that Mosley sexually assaulted his youngest daughter from 1996 to 2001, when she was between the ages of seven and twelve. Id. A division of the court of appeals reversed Mosley's convictions and remanded the case for a new trial, concluding that the trial court violated Mosley's confrontation rights when it placed a barrier between Mosley and his accuser during her testimony at trial. Id. at 159-62.

         ¶7 Under section 18-1-405(2) of the speedy trial statute, the trial court's receipt of the court of appeals' mandate on September 19, 2007, triggered a six-month speedy trial deadline of March 19, 2008. However, on October 29, 2007, Mosley waived his right to a speedy trial and his six-month speedy trial deadline was recalculated to April 29, 2008.[2]Trial was set for April 8, 2008.

         ¶8 On March 31, 2008, the People moved under section 18-1-405(6)(g)(I) to continue the trial beyond the April 29 speedy trial deadline on grounds that the People could not locate the complaining witness. Mosley objected, arguing that the People had not acted with due diligence in attempting to locate the witness and that, therefore, the requirements of subsection (6)(g)(I) had not been satisfied. The trial court found that the alleged victim was a material witness and that the People acted with due diligence in attempting to locate her. It therefore granted the continuance and extended the speedy trial period for an additional six months to September 30, 2008, and rescheduled the trial for June 17, 2008.

         ¶9 On April 30, 2008, Mosley moved to dismiss the charges against him, arguing that his speedy trial right had been violated. Specifically, Mosley argued that the prosecution failed to satisfy the diligence requirement of subsection (6)(g)(I), and that the trial court should not have extended the speedy trial deadline by six months when the prosecution indicated it needed only six to eight weeks to locate the complaining witness. It appears from the record that the trial court did not rule on this motion prior to trial. Trial commenced on June 17, 2008, and the complaining witness was present and testified. On June 25, 2008, the court declared a mistrial because of a hung jury.

         ¶10 Mosley thereafter filed a second motion to dismiss for violation of his speedy trial right, asserting for the first time that the exclusions listed in subsection (6) do not apply to subsection (2) of the speedy trial statute. The trial court agreed and granted Mosley's motion, reasoning that the exclusions from the speedy trial calculation listed in subsection (6) do not apply to retrials under subsection (2), barring delay attributable to the defendant. The trial court dismissed the charges with prejudice.

         ¶11 On appeal, the court of appeals reversed and remanded with directions to reinstate the charges. People v. Mosley, __ P.3d __, slip op. at 18 (Colo.App. No. 08CA1565, Nov. 23, 2011). The court concluded that subsection (2) is ambiguous because it does not contain a remedy in the event that a new trial is not held within six months. Id. at 9-10. The court concluded that the remedy of dismissal from subsection (1) must be imported into subsection (2) to effectuate the intent of the statute, id. at 11- 12, which is "to implement the constitutional right to a speedy trial by requiring dismissal of the case whenever the defendant is not tried within the six month period and the delay does not qualify for one of the express exclusionary categories set out in the statute, " id. at 11 (quoting People v. Deason, 670 P.2d 792, 796 (Colo. 1983)). The court further discerned no logical reason why the exclusions in subsection (6) would apply to a defendant's first trial but not that same defendant's retrial after his convictions are reversed on appeal. Id. at 12. The court concluded that to interpret the exclusions in subsection (6) not to apply to a retrial would lead to absurd results and fail to effectuate the legislature's intent. Id. at 13-16. It declined to apply the rule of lenity, reasoning that this rule of last resort may not be applied to defeat legislative intent. Id. at 17. Finally, the court concluded that the record supported the trial court's finding that the People exercised due diligence in attempting to locate the complaining witness; the court thus rejected Mosley's alternative argument that the continuance was improper because the prosecutor did not satisfy the requirements of subsection (6)(g)(I). Id. at 17-18.

         II. Analysis

         ¶12 To resolve this case, we must determine whether the exclusions in subsection (6) of the speedy trial statute apply to a defendant's new trial following reversal of his conviction on appeal, as contemplated in subsection (2). If the exclusions do apply, we must then determine whether the trial court properly granted the prosecution's request for a continuance under subsection (6)(g)(I); specifically, we must determine whether the trial court abused its discretion in finding that the prosecution acted with due diligence in trying to obtain the presence of the complaining witness.

         ¶13 Construing the speedy trial statute as a whole to give consistent, harmonious, and sensible effect to all its parts, we conclude that subsection (1) of the statute establishes the basic right to a speedy trial, along with the remedy of dismissal for violation of that right. We further conclude that subsection (2) does not create an independent and distinct speedy trial right unique to cases on retrial. Rather, like other subsections of the speedy trial statute, subsection (2) clarifies the basic six-month speedy trial right established in subsection (1). Specifically, subsection (2) identifies the triggering event (the trial court's receipt of the mandate) that starts the six-month clock for a new trial following reversal of a defendant's conviction on appeal. Because the basic right to a speedy trial is established in subsection (1), the exclusions from the speedy trial calculation set forth in subsection (6) logically refer to the basic right in subsection (1). And because a defendant's basic right to a speedy trial-even on retrial-derives from subsection (1), the exclusions from that six-month speedy trial calculation apply to a new trial following reversal of a conviction on appeal.

         ¶14 In this case, the trial court did not abuse its discretion by finding that the prosecution exercised due diligence in attempting to locate and obtain the presence of the complaining witness. Therefore, the trial court properly granted the prosecution's request for a continuance under subsection (6)(g)(I) and did not violate Mosley's statutory speedy trial right. Accordingly, we affirm the judgment of the court of appeals.

         A. Standard of Review

         ¶15 Whether a defendant's statutory speedy trial right has been violated is a matter of construction and application of Colorado's speedy trial statute, section 18-1-405. See People v. Duncan, 31 P.3d 874, 876 (Colo. 2001). Statutory interpretation involves questions of law, which we ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.