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Paul v. People1/31/2005
JUDGMENT REVERSED AND REMANDED
EN BANC
Both the People and defendant Kevin Paul petitioned for review of various aspects of the court of appeals judgment affirming the trial court's refusal to dismiss criminal charges following a mistrial. People v. Paul, 83 P.3d 1171 (Colo. App. 2003). The trial court denied without comment Paul's pretrial motion asserting former jeopardy. The court of appeals agreed with Paul that the denial of his motion was an immediately appealable order, but it affirmed the lower court judgment, holding that Paul implicitly consented to the mistrial by failing to expressly object and that there was, in any event, manifest necessity for ordering a mistrial.
Although denial of the defendant's pretrial motion was not an immediately appealable order, we choose to exercise our original jurisdiction pursuant to C.A.R. 21, and we hold that under the circumstances of this case, the court's declaration of a mistrial was neither consented to nor justified by manifest necessity. The judgment of the court of appeals is therefore reversed and remanded with instructions to order the charges dismissed.
I.
Kevin Paul was charged with vehicular assault and driving under the influence . Twelve days before trial, the People moved to strike the defendant's accident reconstruction expert on the grounds that the defendant's disclosures were untimely and incomplete. Six days before trial, the trial court heard the motion but made no ruling.
At a conference two days before trial, the court again addressed the People's motion to strike, stating that it felt sand-bagged by defense counsel and finding defense disclosures incomplete. The court offered the People a continuance with sanctions, including payment for all trial preparation costs and unused airline tickets. The People rejected this proposal, and the issue remained unsettled.
On the fifth day of trial, the defense called its expert to testify, and the People renewed their motion to strike. At that point, the court informed the parties that that they could either request a continuance or it could declare a mistrial. Indicating that the trial should already have been over, that it was late in the day, and that it was doubtful whether trial could finish by the next day, the court ignored a suggestion by the People that the witness' testimony be limited as a sanction, and instead restated the same two options to the parties. The prosecuting attorney responded that he was not requesting either alternative, and defense counsel similarly responded, "Nor do I." The court then declared a mistrial sua sponte. No further objection was voiced by either party, and the court gave the following explanation to the jury:
I have a lot of questions as to whether or not we can get through with this lawsuit tomorrow. Now, tomorrow will be the third additional day. We were scheduled for three days to begin with. Tomorrow is the third day. Miss Key, who was deemed the alternate, was released because she had an activity planned with her daughter, and I think that some of the rest of you had activities planned as well. In light of all that, I have decided to declare a mistrial, so your services are no longer needed.
Prior to the commencement of a second trial, the defendant moved to dismiss the charges, asserting former jeopardy as a bar. The trial court orally denied the motion, and the defendant directly appealed to the court of appeals. Finding that Colorado recognizes the federal collateral order exception to the final judgment rule and that the defendant had an immediate right to appeal, the court of appeals nevertheless upheld denial of the motion, ruling tha
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