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TCL > March 1999 Issue > Court Business

March 1999       Vol. 28, No. 3       Page  115
From the Courts
Court Business

Court Business

Colorado Supreme Court Rules Committee
Colorado Rules of Criminal Procedure
Chapter 29. Rules Governing Arraignment and Trial Preparation
Rule 16. Discovery and Procedure Before Trial
Corrected

Rule 16. Discovery and Procedure Before Trial

Part I - III [No change]
Part IV. Procedure
(a) - (e) [No change]
(f) Juror Notebooks

Juror notebooks shall be available during ALL FELONY trialS and deliberationS to aid jurors in the performance of their duties. Counsel shall confer about the items to be included in juror notebooks and, by the pre-trial conference or other date set by the court, shall make a joint submission to the court of items to be included in a juror notebook. IN NON-FELONY TRIALS, JUROR NOTEBOOKS SHALL BE OPTIONAL.

Corrected on January 7, 1999, effective immediately.

By the Court:

Rebecca Love Kourlis
Justice, Colorado Supreme Court


Chapter 29. Colorado Rules of Criminal Procedure
VII. Judgment
Rule 32.1. Death Penalty Sentencing Hearing
Amended and Adopted

Rule 32.1. Death Penalty Sentencing Hearing

(a) - (e) [No change]

(f) Discovery Procedures for Sentencing Hearing. The following discovery provisions shall apply to the death penalty sentencing hearing:

(1) Aggravating Factors. NOT LATER THAN 20 DAYS AFTER THE FILING OF THE WRITTEN STATEMENT OF INTENTION REQUIRED IN SUBSECTION (b) OF THIS RULE, THE PROSECUTING ATTORNEY SHALL MAKE AVAILABLE TO THE DEFENDANT A LIST OF THE AGGRAVATING FACTORS ENUMERATED AT §16-11-103(5), C.R.S., THAT ARE THEN KNOWN TO THE PROSECUTING ATTORNEY AND THAT THE PROSECUTING ATTORNEY INTENDS TO PROVE AT THE HEARING AND SHALL PROMPTLY FURNISH THE DEFENDANT WRITTEN NOTIFICATION OF ANY ADDITIONAL AGGRAVATING FACTORS AS THEY BECOME KNOWN. NOT LATER THAN 5 DAYS AFTER THE GUILTY VERDICT, THE PROSECUTING ATTORNEY SHALL HAVE FURNISHED THE DEFENDANT WRITTEN NOTIFICATION OF ALL AGGRAVATING FACTORS THAT THE PROSECUTING ATTORNEY MAY PROVE AT THE SENTENCING HEARING.

(2) Prosecution Witnesses. NOT LATER THAN 20 DAYS AFTER THE FILING OF THE WRITTEN STATEMENT OF INTENTION REQUIRED IN SUBSECTION (b) OF THIS RULE, THE PROSECUTING ATTORNEY SHALL MAKE AVAILABLE TO THE DEFENDANT A LIST OF THE WITNESSES WHOM THE PROSECUTING ATTORNEY INTENDS TO CALL AT THE SENTENCING HEARING AND SHALL PROMPTLY FURNISH THE DEFENDANT WITH WRITTEN NOTIFICATION OF ANY SUCH WITNESSES WHO SUBSEQUENTLY BECOME KNOWN OR THE MATERIALITY OF WHOSE TESTIMONY SUBSEQUENTLY BECOMES KNOWN. NOT LATER THAN 5 DAYS AFTER THE GUILTY VERDICT, THE PROSECUTING ATTORNEY SHALL HAVE FURNISHED THE DEFENDANT WITH WRITTEN NOTIFICATION OF ALL WITNESSES WHOM THE PROSECUTING ATTORNEY MAY CALL AT THE SENTENCING HEARING, EXCEPT THE NAMES OF ANY ADDITIONAL WITNESSES WHOM THE PROSECUTING ATTORNEY INTENDS TO CALL IN RESPONSE TO THE DEFENDANT’S DISCLOSURES. ALONG WITH THE NAME OF THE WITNESS, THE PROSECUTING ATTORNEY SHALL FURNISH THE WITNESS’ ADDRESS AND DATE OF BIRTH, THE SUBJECT MATTER OF THE WITNESS’ TESTIMONY, AND ANY WRITTEN OR RECORDED STATEMENT OF THAT WITNESS, INCLUDING NOTES.

(3) Prosecution Books, Papers, Documents. NOT LATER THAN 20 DAYS AFTER THE FILING OF THE WRITTEN STATEMENT OF INTENTION REQUIRED IN SUBSECTION (b) OF THIS RULE, THE PROSECUTING ATTORNEY SHALL MAKE AVAILABLE TO THE DEFENDANT A LIST OF THE BOOKS, PAPERS, DOCUMENTS, PHOTOGRAPHS, OR TANGIBLE OBJECTS, AND ACCESS THERETO, THAT THE PROSECUTING ATTORNEY HAS WITHIN THE PROSECUTING ATTORNEY’S POSSESSION OR CONTROL AND INTENDS TO INTRODUCE AT THE SENTENCING HEARING AND SHALL PROMPTLY FURNISH THE DEFENDANT WRITTEN NOTIFICATION OF ADDITIONAL SUCH ITEMS AS THEY BECOME KNOWN. NOT LATER THAN 5 DAYS AFTER THE GUILTY VERDICT, THE PROSECUTING ATTORNEY SHALL HAVE FURNISHED THE DEFENDANT WRITTEN NOTIFICATION OF ALL SUCH MATERIALS THAT THE PROSECUTING ATTORNEY MAY INTRODUCE AT THE SENTENCING HEARING.

(4) Prosecution Experts. AS SOON AS PRACTICABLE BUT NOT LATER THAN 30 DAYS BEFORE TRIAL, THE PROSECUTING ATTORNEY SHALL MAKE AVAILABLE TO THE DEFENDANT ANY REPORTS, RECORDED STATEMENTS, AND NOTES, INCLUDING RESULTS OF PHYSICAL OR MENTAL EXAMINATIONS AND SCIENTIFIC TESTS, EXPERIMENTS, OR COMPARISONS, OF ANY EXPERTS WHOM THE PROSECUTING ATTORNEY INTENDS TO CALL AS A WITNESS AT THE SENTENCING HEARING AND SHALL PROMPTLY FURNISH THE DEFENDANT ADDITIONAL SUCH ITEMS AS THEY BECOME AVAILABLE. NOT LATER THAN 5 DAYS AFTER THE GUILTY VERDICT, THE PROSECUTING ATTORNEY SHALL HAVE FURNISHED THE DEFENDANT ALL REPORTS, RECORDED STATEMENTS, AND NOTES, INCLUDING RESULTS OF PHYSICAL OR MENTAL EXAMINATIONS AND SCIENTIFIC TESTS, EXPERIMENTS, OR COMPARISONS, OF ANY EXPERTS WHOM THE PROSECUTING ATTORNEY MAY CALL AS A WITNESS AT THE SENTENCING HEARING.

(5) Material favorable to the accused. NOT LATER THAN 20 DAYS AFTER THE FILING OF THE WRITTEN STATEMENT OF INTENTION REQUIRED IN SUBSECTION (b) OF THIS RULE, THE PROSECUTING ATTORNEY SHALL MAKE AVAILABLE TO THE DEFENDANT ANY MATERIAL OR INFORMATION WITHIN THE PROSECUTING ATTORNEY’S POSSESSION OR CONTROL THAT WOULD TEND TO REDUCE THE PUNISHMENT OF THE ACCUSED, AND THE PROSECUTING ATTORNEY SHALL PROMPTLY MAKE AVAILABLE TO THE DEFENDANT ANY SUCH MATERIAL OR INFORMATION THAT SUBSEQUENTLY COMES INTO THE PROSECUTING ATTORNEY’S POSSESSION OR CONTROL.

(6) Defendant’s Disclosure. SUBJECT TO CONSTITUTIONAL LIMITATIONS, THE DEFENDANT SHALL PROVIDE THE PROSECUTING ATTORNEY WITH THE FOLLOWING INFORMATION AND MATERIALS NOT LATER THAN 20 DAYS AFTER THE GUILTY VERDICT. UPON RECEIPT OF THE INFORMATION REQUIRED BY THIS SUBSECTION (5), THE PROSECUTING ATTORNEY SHALL NOTIFY THE DEFENDANT AS SOON AS PRACTICABLE OF ANY ADDITIONAL WITNESSES WHOM THE PROSECUTING ATTORNEY INTENDS TO CALL IN RESPONSE TO THE DEFENDANT’S DISCLOSURES.

(I) A LIST OF WITNESSES WHOM THE DEFENDANT MAY CALL AT THE SENTENCING HEARING. ALONG WITH THE NAME OF THE WITNESS, THE DEFENDANT SHALL FURNISH THE WITNESS’S ADDRESS AND DATE OF BIRTH, THE SUBJECT MATTER OF THE WITNESS’S TESTIMONY, AND ANY WRITTEN OR RECORDED STATEMENT OF THAT WITNESS, INCLUDING NOTES, THAT COMPRISE SUBSTANTIAL RECITATIONS OF WITNESS STATEMENTS AND RELATE TO THE SUBJECT MATTER OF THE TESTIMONY;

(II) A LIST OF THE BOOKS, PAPERS, DOCUMENTS, PHOTOGRAPHS, OR TANGIBLE OBJECTS, AND ACCESS THERETO, THAT THE DEFENDANT MAY INTRODUCE AT THE SENTENCING HEARING;

(III) ANY REPORTS, RECORDED STATEMENTS, AND NOTES OF ANY EXPERT WHOM THE DEFENDANT MAY CALL AS A WITNESS DURING THE SENTENCING HEARING, INCLUDING RESULTS OF PHYSICAL OR MENTAL EXAMINATIONS AND SCIENTIFIC TESTS, EXPERIMENTS, OR COMPARISONS.

(7) Regulation of discovery and sanctions. NO PARTY SHALL BE PERMITTED TO RELY AT THE SENTENCING HEARING UPON ANY WITNESS, MATERIAL, OR INFORMATION THAT IS SUBJECT TO DISCLOSURE PURSUANT TO THIS RULE UNTIL IT HAS BEEN DISCLOSED TO THE OPPOSING PARTY. THE TRIAL COURT, UPON A SHOWING OF EXTRAORDINARY CIRCUMSTANCES THAT COULD NOT HAVE BEEN FORESEEN AND PREVENTED, MAY GRANT AN EXTENSION OF TIME TO COMPLY WITH THE REQUIREMENTS OF THIS RULE. IF IT IS BROUGHT TO THE ATTENTION OF THE COURT THAT A PARTY HAS FAILED TO COMPLY WITH THIS RULE OR WITH AN ORDER ISSUED PURSUANT TO THIS RULE, THE COURT MAY ORDER SUCH PARTY TO PERMIT THE DISCOVERY OR INSPECTION OF MATERIALS NOT PREVIOUSLY DISCLOSED, GRANT A CONTINUANCE, PROHIBIT THE PARTY FROM INTRODUCING IN EVIDENCE THE MATERIAL NOT TIMELY DISCLOSED, OR ENTER SUCH OTHER ORDER AS IT DEEMS JUST UNDER THE CIRCUMSTANCES AND WHICH IS CONSISTENT WITH CONSTITUTIONAL LIMITATIONS.

(f) (g) [Relettered; NO OTHER CHANGE] Sentencing Hearing. The trial judge shall be the presiding judge for the sentencing hearing. The trial judge shall rule on all motions relating to the sentencing hearing, shall conduct the sentencing hearing and shall rule on all evidentiary issues. If the Chief Justice designates a replacement for the trial judge pursuant to section 16-11-103(1)(a.5), 8A C.R.S., the three appointed judges shall choose a presiding judge from among themselves. The elected presiding judge shall assume the duties of the trial judge as they relate to the sentencing hearing.

(g) (h) [Relettered; NO OTHER CHANGE] Decision of Panel. No later than 10 days following the conclusion of the presentation of evidence and argument at the sentencing hearing, the judges shall present their written decision as required by sections 16-11-103(2)(c) and (d), 8A C.R.S., in open court with the defendant present.

Amended and Adopted by the Court, En Banc, January 14, 1999, effective January 14, 1999.


Chapter 29. Colorado Rules of Criminal Procedure
VII. Judgment
Rule 35. Postconviction Remedies
Amended and Adopted

Rule 35. Postconviction Remedies

(a) and (b) [No change]
(c) Other Remedies.
(1) and (2) [No change]

(3) One who is aggrieved and claiming either a right to be released or to have a judgment of conviction set aside on one or more of the grounds enumerated in section (c)(2) of this Rule may file a motion in the court which imposed sentence to vacate, set aside, or correct the sentence, or to make such order as necessary to correct a violation of his constitutional rights. ANY MOTION FILED OUTSIDE OF THE TIME LIMITS SET FORTH IN §16-5-402, 6 C.R.S. SHALL ALLEGE FACTS WHICH, IF TRUE, WOULD ESTABLISH ONE OF THE EXCEPTIONS LISTED IN §16-5-402(2), 6 C.R.S.

Unless the motion and the files and record of the case show to the satisfaction of the court that the prisoner is not entitled to relief, the court shall cause a copy of said motion to be served on the prosecuting attorney, grant a prompt hearing thereon, and take whatever evidence is necessary for the disposition of the motion. IF THE PETITIONER HAS REQUESTED COUNSEL AND THE COURT HAS NOT SUMMARILY DETERMINED THAT THE PRISONER IS NOT ENTITLED TO RELIEF, THEN THE COURT SHALL ALSO REFER A COPY OF THE MOTION TO THE PUBLIC DEFENDER’S OFFICE FOR CONSIDERATION PURSUANT TO § 21-1-104(1)(B), 6 C.R.S.

In all cases, the court shall determine the issues and make findings of fact and conclusions of law with respect thereto.

If the court finds that defendant is entitled to postconviction relief, the court shall vacate and set aside the judgment, impose a new sentence, or grant a new trial, or discharge the prisoner, or make such orders as may appear appropriate to restore a right which was violated. The court may stay its order for discharge of the prisoner pending appellate court review of the order. If the court orders a new trial, the transcript of testimony given at the trial, which resulted in the vacated sentence by witnesses who have since died or otherwise become unavailable, may be used at the new trial. The court need not entertain a second motion or successive motions for similar relief based upon the same or similar allegations on behalf of the same prisoner. The order of the trial court granting or denying the motion is a final order reviewable on appeal.


COMMITTEE COMMENT

AS A PRACTICAL MATTER AND TO AVOID UNNECESSARY DELAY ANY MOTION FILED PURSUANT TO RULE 35(C) SHOULD INCLUDE THE FOLLOWING INFORMATION:

A. CASE NUMBER;

B. COUNTY AND COURT WHERE CONVICTED;

C. DATE OF CONVICTION;

D. NATURE AND LENGTH OF SENTENCE;

E. WHETHER CONVICTION WAS BY TRIAL OR PLEA;

F. THE NAMES AND ADDRESSES OF ANY ATTORNEYS WHO REPRESENTED THE DEFENDANT AT ANY STAGE OF THE PROCEEDING;

G. WHETHER THERE WAS AN APPEAL, AND IF SO, THE CASE NUMBER OF THE APPEAL, THE NAME OF THE COURT THAT CONSIDERED THE APPEAL, THE RESULT OF THE APPEAL, AND THE DATE OF THE RESULT OF THE APPEAL;

H. OTHER THAN APPELLATE MOTIONS, THE NATURE OF ANY PREVIOUS POST-TRIAL PETITIONS, APPLICATIONS OR MOTIONS FILED WITH RESPECT TO THE CASE;

I. WHETHER THE PETITIONER IS REQUESTING COUNSEL TO BE APPOINTED;

J. ALL GROUNDS FOR RELIEF (FAILURE TO INCLUDE ALL GROUNDS MAY RESULT IN SUCH ADDITIONAL GROUNDS BEING BARRED FROM PRESENTATION IN FUTURE MOTIONS); AND

K. ALL FACTS WHICH SUPPORT EACH GROUND FOR RELIEF PRESENTED AS SPECIFICALLY AS POSSIBLE.

Amended and Adopted by the Court, En Banc, January 7, 1999, effective July 1, 1999.

By the Court:

Gregory J. Hobbs, Jr.
Justice, Colorado Supreme Court

© 1999 The Colorado Lawyer and Colorado Bar Association. All Rights Reserved. Material from The Colorado Lawyer provided via this World Wide Web server is protected by the copyright laws of the United States and may not be reproduced in any way or medium without permission. This material also is subject to the disclaimers at http://www.cobar.org/tcl/disclaimer.cfm?year=1999.


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