People v. Bakari

Chief Justice QUINN

dissenting:

I dissent from this court’s holding that the district court abused its discretion by denying the prosecution’s motion for a continuance of the suppression hearing and by granting the defendant’s motions to suppress. In my view, the district court acted within the limits of its discretion when it denied the motion for a continuance and granted the defendant’s suppression motions as a sanction for prosecutorial unpreparedness.

I.

The sparse record shows that a hewing was scheduled on the defendant’s motion to suppress various items of evidence seized from his person at the time of his arrest and a motion to suppress a custodial statement made by him to the police. A hearing on the motions was originally scheduled for February 10, 1989, but on February 8 the hearing was rescheduled at the request of the prosecution to March 10, 1989. Both the district attorney and defense counsel were present in court when the hearing was continued. On March 10, 1989, the deputy district attorney to whom the case had been recently assigned requested another continuance because he was not prepared to proceed. The district court denied the request for a continuance, observing that over the past several months prosecu-torial requests for continuances have become all too frequent. After remarking that such requests were disruptive of the court’s docket, the court determined that there was no good cause for the continuance and accordingly denied the motion. When the deputy district attorney acknowledged that the People were not ready for the suppression hearing, the court granted the defendant’s motions to suppress.1

II.

The record clearly demonstrates that the court granted the defendant’s motions to suppress as a sanction for prosecutorial unpreparedness and not because of some form of unconstitutional police conduct. In light of the stated basis of the district court’s order of suppression, I am of the view that this appeal is not within the *1095scope of C.A.R. 4.1(a), which authorizes an interlocutory appeal from a ruling of a district court “granting a motion under Crim.P. 41(e) and (g) and Crim.P. 41.1(i)”.

Crim.P. 41(e) authorizes motions to suppress evidence acquired by governmental officials during an unconstitutional search and seizure. In a similar fashion, Crim.P. 41(e) authorizes a defendant to move for the suppression of a statement or confession obtained in violation of his federal or state constitutional rights. Crim.P. 41.1(i) authorizes a defendant to file a motion to suppress nontestimonial identification evidence seized pursuant to a court order.

Since I do not read C.A.R. 4.1 as authorizing an interlocutory appeal of a ruling entered as a sanction for prosecutorial unpreparedness,2 I would dismiss this appeal as beyond the limitations of the rule. See, e.g., People v. Dailey, 639 P.2d 1068, 1076 n. 8 (Colo.1982); People v. McNulty, 173 Colo. 491, 480 P.2d 560 (1971); People v. Thornburg, 173 Colo. 230, 477 P.2d 372 (1970). The majority, however, chooses a different course, and I turn to the propriety of the district court’s ruling.

III.

I believe the district court acted within its discretion in denying the prosecution’s motion to continue the hearing on the suppression motions. “A motion for continuance is addressed to the sound discretion of the trial court, and the trial court’s ruling will not be disturbed in the absence of an abuse of discretion.” People v. Hampton, 758 P.2d 1344, 1353 (Colo.1988). To say that a court has discretion in resolving an issue means that it has “the power to choose between two or more courses of action and is therefore not bound in all cases to select one over the other.” People v. Milton, 732 P.2d 1199, 1207 (Colo.1987).

The record in this case shows no abuse of discretion on the part of the district court in denying the prosecution’s motion for a continuance. The district court granted the prosecution’s initial request to continue the suppression hearing from February 10 to March 10, 1989. The prosecution thus had four weeks to prepare for the rescheduled hearing. Given this state of the record, I fail to see how the trial court’s denial of the prosecution’s second motion for a continuance somehow amounted to an abuse of discretion. If anything, I view the district court’s denial of a second prose-cutorial motion for a continuance as an exercise of sound discretion calculated to ensure efficient management of its docket.

IV.

In contrast to the majority, I do not interpret the district court’s order granting the motions to suppress as the functional equivalent of an order of dismissal. The majority’s contrary interpretation is apparently based on the deputy district attorney’s claim that there would be “no evidence left” if the district court granted the motions. The deputy district attorney who made the statement, however, acknowledged to the trial judge that he had not read the entire file on the case. Under this state of the record, I am at a loss to assess the strength of the prosecution’s case independently of the suppressed evidence. Whether the prosecution has sufficient evidence in the form of eyewitness identification evidence or other evidence to prove the charges of robbery and assault in the third degree should properly be determined at trial.

*1096As I read this court’s opinion, the majority turns this case on the proposition that the district court’s order granting the suppression motions does not serve the purposes of the exclusionary rule, in that it is not calculated to deter police misconduct. 780 P.2d at 1091. The fact of ⅛⅜ matter, however, is that the district court's ruling was not based on a finding of unconstitutional police conduct in acquiring evidence but, rather, on a finding of prosecutorial unpreparedness for which there was no justifiable excuse. Indeed, the prosecution acknowledges in its brief that its conduct can aptly be described as “sloppy, ill-prepared, and thoughtless.” Since the sanction imposed by the district court was not intended to serve the purposes of the exclusionary rule, there is no reason to inject exclusionary-rule doctrine into the resolution of this case.

The authority of a trial court to fashion an appropriate sanction for a lawyer’s unpreparedness in litigating motions set well in advance of the scheduled hearing date is an inherent judicial power to be exercised within the limits of sound judicial discretion. A trial court’s decision to exercise its authority should not be set aside merely because an appellate court might have fashioned some alternative sanction were it sitting as the trial court. Since the record, although sparse, provides adequate support for the district court’s resolution of this matter, I would affirm the ruling.

I am authorized to say that ERICKSON and LOHR, JJ., join me in the dissent.

. In denying the prosecution's motion for a continuance and granting the defendant’s motion to suppress, the district court ruled as follows:

[T]he Court will make the general observation that over the past several months, this general state of affairs has occurred again and again and again and again.
We set what, five, six, seven motions hearings every Friday. And if two of them go, it’s an unusual day. And many days, none of them go because people aren’t ready or because they decide not to do it or whatever.
And then we have them reset in a situation where we can’t get a transcript out, which the Defendant has a right to. We find ourselves in situations where trials have to be continued.
We are right now setting motions hearings dates on days other than Friday and trial days. And I’m not sure how we are going to handle that. And I’m not sure how the District Attorney’s Office is going to cover that.
But, right now, I have, at least by my count and there could be more, at least six murder cases pending in this courtroom and several other very complicated Class Two Felonies, which will take at least a week to try.
And I simply haven’t got time to do this. I find that the reason to proceed is not a legitimate reason to continue. I don’t know why Officer Cox couldn’t call these people. He chose not to.
I suppose he’ll have to bear the responsibility for that, because I find that the — that there is no just reason, no good cause why this matter should not proceed today. And therefore, I’m denying the Motion to Continue.
I assume that the People are not ready to proceed: is that correct?
[Deputy District Attorney]: That’s correct.
THE COURT: Very well. The Motion to Suppress Statements is granted. The Motion to Suppress Evidence is granted. The matter remains scheduled for trial in this Court April 24.

. Section 16-12-102(2), 8A C.R.S. (1986), authorizes the prosecution to file an interlocutory appeal in the supreme court from a ruling of a trial court granting a motion to suppress. I view this statute as legislative authorization for interlocutory appeals from suppression rulings predicated on unconstitutional governmental conduct in conducting an arrest, search, or seizure, and unconstitutional governmental conduct in interrogating an accused. Although section 16-12-102(2) was amended on April 12, 1989, to allow the prosecution to file an interlocutory appeal in the supreme court "from a ruling of the trial court granting a motion in limine pertaining to the matters described in this subsection (2),” Ch. 149, sec. 4, § 16-12-102(2), 1989 CoIo.Sess.Laws 862, 863, it is not clear to me that the 1989 amendment is intended to broaden the scope of the interlocutory appeal so as to include nonconstitutional rulings. Moreover, the prosecution’s notice of appeal in this case was filed pursuant to C.A.R. 4.1, prior to the effective date of the 1989 amendment.