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Docket Number

No. 25225

Attorney(S)

Duke W. Dunbar, Attorney General, John P. Moore, Deputy, Aurel M. Kelly, Assistant, Sara Duncan, Assistant, for plaintiff-appellee. Rollie R. Rogers, State Public Defender, J. D. MacFarlane, Chief Deputy, Thomas M. Van Cleave III, Deputy, for defendant-appellant.

Judges

MR. JUSTICE HODGES delivered the opinion of the Court.

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Smart Summary

The People of the State of Colorado v. Gary Wiedemer, No. 25225 (Colo. Dec. 26, 1972)

Factual and Procedural Background

Defendant Gary Wiedemer, while an inmate at the Colorado State Penitentiary, was charged with burglary of the institution's pre-parole center and theft of $1,724 from the safe located therein. Shortly after the burglary and theft, penitentiary officials transferred the defendant into a maximum security cell house while an investigation was conducted to determine if charges would be filed. After charges were filed, the defendant moved to dismiss on the ground that the requirements of Crim. P. 5(a)(1) — that an accused be taken without unnecessary delay before a county judge after arrest — were not followed. The trial court denied the motion; the defendant was later convicted by a jury of both charges. On appeal, the defendant's sole contention was that the trial court erred in denying his motion to dismiss. The Supreme Court of Colorado heard the appeal en banc and decided the case on December 26, 1972, affirming the judgment below.

Legal Issues Presented

Whether a defendant may obtain dismissal for an alleged violation of Crim. P. 5(a)(1) (failure to be taken before a county judge within a reasonable time after arrest) absent a showing that the violation caused unfair prejudice or resulted in denial of basic trial rights.
Whether the mere existence of a Crim. P. 5(a)(1) violation automatically requires granting a pretrial motion to dismiss.

Arguments of the Parties

Defendant-Appellant's Arguments

The defendant alleged that his "arrest" occurred when he was transferred into the maximum security cell house following the burglary; on that basis he claimed a violation of Crim. P. 5(a)(1).
In support of dismissal, the defendant argued (implicitly) that the failure to take him before a county judge within a reasonable time warranted dismissal; however, the opinion notes that only a speculative argument of possible prejudice appeared in the defendant's brief and no specific showing of actual prejudice or denial of basic rights was made.

The opinion does not contain a detailed account of the plaintiff-appellee's specific legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
People v. Reed, 180 Colo. 16, 502 P.2d 952 (1972)	That before an accused may prevail on a Crim. P. 5(a)(1) motion he must show unfair prejudice or denial of basic trial rights resulting from the violation.	The court relied on Reed to support the requirement that the defendant show actual prejudice or denial of rights; finding no such showing, the court affirmed the denial of the pretrial motion.
People v. Weaver, 179 Colo. 331, 500 P.2d 980 (1972)	Same principle as cited with Reed: the necessity of demonstrating prejudice or denial of basic rights before relief is warranted for a Crim. P. 5 violation.	The court cited Weaver alongside Reed to reinforce the standard requiring a showing of prejudice; applied that standard to conclude the defendant did not prevail.
Aragon v. People, 166 Colo. 172, 442 P.2d 397 (1968)	That a violation of Crim. P. 5 does not automatically require granting a pretrial motion to dismiss; other facts of undue prejudice must be established.	The court invoked Aragon to reject the notion that a Crim. P. 5 violation, by itself, mandates dismissal; because no undue prejudice was shown here, the court affirmed the denial of the motion.

Court's Reasoning and Analysis

The court framed the central issue as whether a defendant can prevail on a Crim. P. 5(a)(1) motion without demonstrating that any alleged delay in taking the accused before a county judge caused unfair prejudice or denied basic trial rights. The opinion expressly declined to decide whether the defendant's transfer to maximum security constituted an "arrest" under Crim. P. 5. Instead, the court focused on the absence of any showing that the alleged procedural violation affected the fairness of the trial: only speculative prejudice was suggested in the defendant's brief, and no concrete example was presented (for example, a statement or confession obtained prior to presentation to a county judge that required suppression). Citing People v. Reed and People v. Weaver, the court reiterated that a defendant must show actual prejudice or deprivation of basic rights to obtain dismissal for a Crim. P. 5(a)(1) violation. The court also cited Aragon v. People for the proposition that a Crim. P. 5 violation does not automatically require dismissal and that additional facts demonstrating undue prejudice must be established. Because the defendant made no such showing, the trial court's denial of the pretrial motion was proper.

Holding and Implications

Holding: The judgment of the trial court was Affirmed.

Implications: The court's decision leaves in place the trial court's denial of the defendant's motion to dismiss and the convictions for burglary and theft. The opinion emphasizes that a claimed violation of Crim. P. 5(a)(1) does not automatically require dismissal; a defendant must demonstrate that the violation resulted in unfair prejudice or denial of basic trial rights. The opinion does not announce or purport to establish a new broader precedent beyond applying existing Colorado authority.

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The People of the State of Colorado v. Gary Wiedemer

1. CRIMINAL PROCEDURE — County Judge — Reasonable Time After Arrest — Burglary and Theft — Proof — Prejudice — Rule. Before an accused may prevail on his motion, alleging that contrary to the requirements of Crim. P. 5(a)(1) he was not taken before a county judge within a reasonable time after his arrest, he must show that he would be unfairly prejudiced or would be denied some basic rights at trial because of the violation; in instant case, no such showing was made.

MR. JUSTICE HODGES delivered the opinion of the Court.

Defendant Wiedemer, while an inmate at the Colorado State Penitentiary, was charged with burglary of the institution's pre-parole center and theft of $1,724 from the safe located therein. Shortly after the burglary and theft, the penitentiary officials transferred the defendant into a maximum security cell house while an investigation was conducted to determine if charges would be filed. After charges were filed, the defendant moved to dismiss them because of a failure to comply with Crim. P. 5(a)(1), which requires that an accused after he is arrested be taken without unnecessary delay before a county judge. This motion was denied by the trial court and at a subsequent jury trial, the defendant was found guilty of both charges. His sole contention on this appeal is that the trial court erroneously denied his motion to dismiss the charges. We disagree with this contention and therefore affirm.

Specifically, the defendant in his motion alleges that the arrest occurred when he was transferred into the maximum security cell house after the burglary. Whether this is an arrest as envisioned in Crim. P. 5, we do not decide here.

In our view, the central issue presented by this appeal is whether a defendant can ever prevail when he fails to support his motion by any showing that a Crim. P. 5(a)(1) violation — if in fact one existed — could be the cause of an unfair trial; particularly, with regard to a statement or confession which is subject to suppression because it was obtained prior to taking the accused before a county judge. The defendant failed to make such a showing here, and for this reason, we hold that the trial court properly denied this pretrial motion. Before an accused may prevail on such a motion, he must show that he would be unfairly prejudiced or would be denied some basic rights at trial because of the Crim. P. 5(a)(1) violation. People v. Reed, 180 Colo. 16, 502 P.2d 952 (1972) and People v. Weaver, 179 Colo. 331, 500 P.2d 980 (1972).

Only a speculative argument of possible prejudice was injected into the defendant's brief. No positive statement was made and no showing was presented as to how defendant may have been unfairly prejudiced at trial or may have been denied some basic rights during his trial. As indicated in Aragon v. People, 166 Colo. 172, 442 P.2d 397 (1968), a violation of Crim. P. 5 does not of itself automatically operate to require the granting of such a pretrial motion. Other facts of undue prejudice to the defendant emanating from the rule violation must also be established. Such a showing was not made here as previously stated.

Judgment affirmed.

PEOPLE v. WIEDEMER