Borg v. District Court of the Second Judicial District, for the City & County of Denver

DUBOFSKY, Justice. In this original proceeding under C.A.R. 21, we issued a rule to show cause why the respondent district court’s order, permitting the filing of a direct information charging the defendant Karen E. Borg with criminally negligent homicide under section 18-3-105, 8 C.R.S. (1983 Supp.), should not be vacated and the case dismissed.1 We now make the rule absolute. On August 25, 1983, a dry, clear day, the defendant drove her automobile through a red light, striking and killing Fatimah Hus-sin, a pedestrian. The People charged the defendant with criminally negligent homicide. On November 4, 1983, at the preliminary hearing in Denver County Court, a witness who was a passenger in the defendant’s car testified that the defendant had been driving between 35 to 40 miles per hour and did not see the red light until it was too late to avoid entering the intersection. According to the passenger, the defendant sped up about three miles per hour upon realizing that she was about to enter the intersection against the light. The passenger testified that although he had seen the pedestrian and, grabbing the steering wheel, had tried to turn the automobile into another lane, the defendant never saw the pedestrian before striking her. A police traffic investigator testified that he had determined from the skid marks at the accident scene that the defendant had been traveling at 36.8 miles per hour. The investigator also testified that the speed limit at the intersection was 30 miles per hour. The county court dismissed the charge against the defendant, holding that the People had not established probable cause to believe that the defendant committed criminally negligent homicide. Proceeding under Crim.P. 7(c)(2), the People moved the Denver District Court for permission to file a direct information in district court charging the defendant with criminally negligent homicide. On December 9, 1983, the presiding district court judge for the criminal division granted the People’s ex parte motion. On December 16,1983, the defendant requested the district court judge to whom the case had been assigned to dismiss the charges, alleging that the People had failed to provide reasons for refiling as required by Holmes v. District Court, 668 P.2d 11 (Colo.1983). The second district court judge denied the defendant’s motion to dismiss, and the defendant sought relief in this court under C.A.R. 21. Crim.P. 7(c)(2) provides that “[t]he prosecuting attorney, with the consent of the court having trial jurisdiction, may file a direct information if ... [a] preliminary hearing was held in the county court and the accused person was discharged.” In Holmes v. District Court, 668 P.2d 11 (Colo.1983), this court addressed the scope of a district court’s discretion under Crim.P. 7(c)(2). We stated: The requirement of court consent prescribed by Crim.P. 7(c)(2) “implies a real application of discretion.” People v. Swazo, 191 Colo. 425, 427, 553 P.2d 782 (1976). Before the district court may properly exercise its discretion, there must be a sufficient evidentiary disclosure by the prosecution to apprise the district court of the earlier dismissal of the identical charges in the county court and the reasons for the requested re-filing. When exercising its discretion in deciding whether to permit the direct [783] filing of an information under Crim.P. 7(c)(2), the district court is required to balance the right of the district attorney to prosecute criminal cases against the need to protect the accused from discrimination and oppression. People v. Frei-man, 657 P.2d 452 (Colo.1983). Id. at 14 (emphasis added). The People failed in this case to make a “sufficient evidentiary disclosure” to establish the reasons for re-filing as required by Holmes. The People’s Crim.P. 7(c)(2) motion contained a statement that the district court had jurisdiction; a summary of Crim.P. 7(c)(2); and a summary of the facts of this case, including the date of the preliminary hearing. The People did not allege that the county court erred in its finding of no probable cause. The People’s motion did not describe the testimony before the county court in detail sufficient for the district court to decide on an informed basis whether the county court’s determination was correct. The People did not submit a transcript of the county court proceeding with its motion. Rather, the motion asserted that the passenger gave a statement at the preliminary hearing consistent with a statement attached to the motion. The attached statement, dated September 1983, included the following facts: “Karen [the defendant] mentioned the [light] was red and because by this time we were close to the intersection she made the decision to run the [light].” The People’s motion therefore implied that the passenger had testified at the preliminary hearing that the defendant made a conscious choice to run the light. In contrast, the passenger testified at the preliminary hearing as follows: I was going to say something to Karen, but, just as I was going to say that, she interrupted me by saying, “Oh, my God, the light’s red!” At that point there was really nothing she could do but go through the intersection, and she didn’t see the girl. Given the difference between the passenger’s statement which was before the district court and the passenger’s preliminary hearing testimony which was not, coupled with the lack of identification of the county court’s alleged error, the motion provided an inadequate basis for ex parte exercise of the district court’s discretion. We conclude, therefore, that under Holmes v. District Court, 668 P.2d 11 (Colo.1983), it was an error of law for the district court to grant the motion. Accordingly, we remand this case and direct that the district court dismiss without prejudice the charge filed against the defendant. The rule is made absolute. LOHR, J., dissents, and ROVIRA, J., joins in the dissent. Footnotes [1] Under 18-3-105, 8 C.R.S. (1983 Supp.): Any person who causes the death of another person by conduct amounting to criminal negligence commits criminally negligent homicide which is a class 1 misdemeanor. Section 18-1-501(3), 8 C.R.S. (1978) defines “criminal negligence” as follows: A person acts with criminal negligence when, through a gross deviation from the standard of care that a reasonable person would exercise, he fails to perceive a substantial and unjustifiable risk that a result will occur or that a circumstance exists.