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People v. Fisher7/5/1988
or." Fisher realized that Vizina was bleeding and called for emergency services.
Two paramedics who arrived at the scene before the detective described Fisher as "quite hysterical" and "agitated." Detective Penington arrived a half hour to an hour after the arrival of the paramedics and the fire department. Fisher's second statement was taken later in the evening and was videotaped. The videotape was entered into evidence at the preliminary hearing, and viewed by the judge during the hearing. When asked to describe Fisher's condition, Detective Penington responded: "Her condition was shook up; she seemed somewhat intoxicated; she was scared; she was uncertain of what had happened and what was happening; in the condition of Mr. Vizina, she was uncertain what the situation w s there."
The results of fingerprint analysis performed on the revolver were negative; no fingerprints were recovered from the weapon. However, it was established that both bullets had been fired from the weapon found in the front room. Based on the location of the bullet in the ceiling, it appeared that the shot had been fired from the vicinity of the front door.
On cross-examination, the detective explained that gunshot residue was found on the back of Fisher's left hand, and that " person would have to hold that gun in their hand at the time of firing it to have any residue on the back of their hand." However, the results of the test were considered to be inconclusive.
Fisher was charged by information with second degree murder, in violation of section 18-3-103(1)(a), and crime of violence, in violation of section 16-11-309. A preliminary hearing was held in Denver County Court in October 1986. At the conclusion of the preliminary hearing, the county court ruled that probable cause was not established on the charge of second degree murder and dismissed Count I. Count II, the crime of violence charge, was also dismissed. In a sua sponte ruling, the county court held that probable cause had been established to support a charge of reckless manslaughter. The case was bound over to the Denver District Court on that charge.
The prosecution filed a Motion to File Information Directly in the District Court, pursuant to Crim. P. (7)(c)(2), 7B C.R.S. (1984). The prosecution argued that the county court "erred as a matter of law in concluding that probable cause was not established as to Count I." After conducting a hearing, the district court agreed with the county court "that there is not probable cause to believe that the defendant's actions -- that she was aware that her actions were practically certain to cause the result that it did, and, therefore, the motion to file the charge directly in district court is denied." The defendant was arraigned on the reckless manslaughter charge and she entered a plea of not guilty.
The prosecution filed a notice of appeal in this court, asking us to reverse the orders entered below and remand the case for reinstatement of the original charges.
II.
The issue before us is whether the district court abused its discretion in denying the prosecution's motion to file a direct information. Holmes v. District Court, 668 P.2d 11, 14 (Colo. 1983); People v. Freiman, 657 P.2d 452, 453 (Colo. 1983). This ruling was based on the court's conclusion that the county court correctly ruled that there was insufficient evidence to find probable cause on the charge of second degree murder.
The purpose of a preliminary hearing is "to determine if there is probable cause to believe that an offense has been committed and that the pers
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