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Delacruz v. Peaple

Supreme Court of Colorado, En Banc

April 10, 2017

Gerardo Joel Delacruz, Petitioner:
v.
The People of the State of Colorado. Respondent:

         Certiorari to the Colorado Court of Appeals Court of Appeals Case No. 10CA2364.

          Attorneys for Petitioner: Douglas K. Wilson, Public Defender Alan Kratz, Deputy Public Defender Denver, Colorado

          Attorneys for Respondent: Cynthia H. Coffman, Attorney General Majid Yazdi, Assistant Attorney General Denver, Colorado

          MÁRQUEZ JUSTICE

         ¶1 Like Mosley v. People, 2017 CO 20, __ P.3d __, a companion decision issued today, 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]Gerardo Delacruz was convicted of first degree murder, attempted first degree murder, first degree assault, and prohibited use of a weapon arising from an altercation that took place at a bar in Denver. Like the defendant in Mosley, Delacruz's convictions were reversed on appeal and, pursuant to section 18-1-405(2), the deadline for his second trial was set for six months from the date the trial court received the court of appeals' mandate.

         ¶2 Four days before trial, and just fourteen days before the speedy trial deadline was set to expire, the prosecution learned of a potential conflict of interest involving Delacruz's defense counsel. The prosecution notified the court, which held a hearing on the matter the following day. The trial court concluded that a continuance was necessary for an independent investigation that would allow Delacruz to make an informed decision with respect to the potential conflict. The trial court also concluded that the prosecution was entitled to a continuance under subsection (6)(g)(I) and (II) of the speedy trial statute to allow the prosecution additional time to secure the presence of the witness who brought this potential conflict to the prosecution's attention. Delacruz objected to the continuance as a speedy trial violation and moved to dismiss his charges on the same grounds at a later hearing. The court of appeals concluded that the trial court did not abuse its discretion in continuing the speedy trial deadline.

         ¶3 Delacruz now petitions this court for relief, arguing, as did the defendant in Mosley, that because subsection (6) states that its exclusions apply "[i]n computing the time within which a defendant shall be brought to trial as provided in subsection (1) of [the speedy trial statute], " § 18-1-405(6) (emphasis added), these exclusions do not apply to the speedy trial calculation for a new trial following reversal of a defendant's convictions on appeal. Thus, Delacruz argues, the trial court erred in granting a continuance under subsection (6) to extend Delacruz's speedy trial deadline for his new trial. Delacruz further contends that the trial court erred in concluding that the potential conflict constituted an exceptional circumstance under subsection (6)(g)(II) justifying a continuance for further investigation because Delacruz could have waived his right to conflict-free counsel at the hearing without an investigation. Finally, Delacruz argues the trial court erred in finding that the prosecution was entitled to a continuance under subsection (6)(g)(I) because the witness was not "unavailable" nor was her testimony "material, " as required for a continuance under subsection (6)(g)(I).

         ¶4 Construing the speedy trial statute as a whole to give consistent, harmonious, and sensible effect to all its parts, we held in Mosley that the exclusions in subsection (6) of the statute apply to the speedy trial calculation for a new trial following the reversal of a defendant's conviction on appeal. Mosley, ¶ 34. Applying that decision here, we further hold that the trial court did not abuse its discretion in concluding that the late disclosure of the potential conflict constituted exceptional circumstances under subsection (6)(g)(II) of the statute justifying a continuance of the trial. We therefore affirm the judgment of the court of appeals.

         I. Facts and Procedural History

         ¶5 Gerardo Delacruz was convicted of first degree murder, attempted first degree murder, first degree assault, and prohibited use of a weapon following an early morning bar fight. On direct appeal, a division of the court of appeals reversed Delacruz's convictions and remanded the case for a new trial, concluding that the trial court abused its discretion in failing to dismiss several jurors for cause. People v. Delacruz, No. 07CA1646 (Colo.App. Mar. 19, 2009) (not published pursuant to C.A.R. 35(f)). Under section 18-1-405(2) of the speedy trial statute, the trial court's receipt of the mandate on November 27, 2009, triggered a six-month speedy trial deadline of May 27, 2010. Trial was set for May 17, 2010.

         ¶6 Four days before trial, on May 13, 2010, the prosecution submitted a notice to the court requesting a hearing regarding a potential conflict of interest involving defense counsel. The prosecution learned of the potential conflict earlier that day during a phone interview with Delacruz's ex-girlfriend, Myra Sepulveda. In the notice, the prosecution stated that, after the case was remanded for a new trial, it had tried to find Sepulveda, believing her to be in Mexico, but had been unable to do so. The prosecution explained that an investigator assigned to locate Sepulveda later informed the prosecutors that she was in El Paso, Texas. The prosecution then contacted Sepulveda to request that she appear for the trial. During this conversation, Sepulveda allegedly indicated that she had been contacted by defense counsel around the time of the first trial and that defense counsel told her that she "needed to say that she was with [Delacruz] and picked him up the night of the shooting." This contact, the prosecution implied, created a potential conflict of interest because defense counsel might have to testify at trial to rebut the statement.

         ¶7 At a hearing on May 14, 2010, three days before trial, defense counsel denied any potential conflict. Given that trial was imminent, the court determined that a continuance was necessary to appoint independent counsel to conduct an investigation into Sepulveda's allegations and to advise Delacruz regarding the possible conflict so that he could make an informed decision either to waive his right to conflict-free counsel or to have new counsel appointed. The court further concluded that the prosecution acted with due diligence in attempting to locate Sepulveda and obtain her presence for trial. Delacruz objected to any continuance.

         ¶8 The court concluded the prosecution had established good cause for a continuance of the trial date beyond the speedy trial deadline on two bases. First, the trial court reasoned that the continuance was warranted under section 18-1-405(6)(g)(I) because evidence material to the prosecution's case was unavailable, namely, the testimony of Sepulveda about her alleged conversation with defense counsel and the possible testimony of defense counsel to rebut Sepulveda's statement. The trial court noted that it was "uncertain" whether the prosecution had exercised due diligence to obtain Sepulveda's testimony, given that it had recently located her in Texas, but concluded there were reasonable grounds to believe her testimony would be available at a later date through her voluntary appearance or the prosecution's efforts to secure her presence at trial. Second, the trial court ruled that the continuance was warranted under section 18-1-405(6)(g)(II) to allow the prosecution additional time to prepare its case in light of exceptional circumstances, citing Sepulveda's late disclosure of information to the prosecution and the need to investigate her claims. The court also reasoned that these exceptional circumstances required that Delacruz be afforded a reasonable opportunity to confer with independent counsel regarding the possible conflict. The court therefore granted the continuance, extended the speedy trial deadline by six months, and rescheduled the trial for September 27, 2010.

         ¶9 The court held another hearing on June 4, 2010, after independent counsel conducted an investigation regarding the possible conflict. Independent counsel explained to the court that Sepulveda now denied that there was any improper communication between her and defense counsel. After discussing the matter with independent counsel, Delacruz decided to waive any potential conflict and to proceed to trial with his defense attorney. Delacruz thereafter moved to dismiss the charges, arguing that the continuance was unwarranted and that, therefore, his speedy trial right had been violated. The trial court denied the motion at a hearing on August 27, 2010. Following his second trial, a jury again convicted Delacruz of first degree murder, attempted first degree murder, first degree assault, and prohibited use of a weapon.

         ¶10 On appeal, Delacruz argued for the first time that the exclusions to the six-month deadline listed in section 18-1-405(6) do not apply to the speedy trial calculation for a new trial following reversal of a defendant's convictions on appeal. Specifically, he argued that, because subsection (6) states that its exclusions apply "[i]n computing the time within which a defendant shall be brought to trial as provided in subsection (1), " § 18-1-405(6), the plain language of subsection (6) indicates that its exclusions apply only to subsection (1), and not to subsection (2). The court of appeals rejected this argument, instead agreeing with the division in People v. Mosley, __ P.3d __(Colo.App. No. 08CA1565, Nov. 23, 2011), which 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. People v. Delacruz, No. 10CA2364, slip op. at 7-11 (Colo.App. Oct. 31, 2013) (not published pursuant to C.A.R. 35(f)) (citing Mosley, __ P.3d __, No. 08CA1565). The court of appeals also rejected Delacruz's alternative argument that even if the exclusions in subsection (6) do apply, the trial court nevertheless erred in granting a continuance under subsection (6) in this case. Id. at 11-17. The court of appeals reasoned that the investigation into a possible conflict with defense counsel was arguably necessary to allow Delacruz to make a voluntary, knowing, and intelligent waiver of his rights because the parties lacked thorough and detailed information about defense counsel's alleged conflict at the time of the pretrial hearing. Id. at 12-15. The court also concluded that the trial court did not abuse its discretion in finding that Sepulveda was a material witness and was unavailable for purposes of subsection (6)(g)(I). Id. at 15-17.

         II. Analysis

         ¶11 We begin with a discussion of section 18-1-405 and our opinion, also announced today, in Mosley v. People, 2017 CO 20, __ P.3d __, holding that subsection (6)'s exclusions apply to the speedy trial calculation for a new trial following reversal of a defendant's convictions on appeal. We then conclude that the trial court did not abuse its discretion in concluding that the late disclosure of the potential conflict in this case constituted exceptional circumstances warranting a continuance under subsection (6)(g)(II). The trial court therefore properly ...


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