Perez v. People , 1987 Colo. LEXIS 647 ( 1987 )

ROVIRA, Justice.

A jury convicted defendant of theft, § 18-4-401, 8 C.R.S. (1978 & 1984 Supp.), and second-degree forgery, § 18-5-103, 8 C.R.S. (1978 & 1984 Supp.), in the Pueblo County District Court. The court entered judgment and sentenced defendant to terms of three years for the forgery conviction, and five years with one year of parole for the theft conviction. The court of appeals affirmed defendant’s convictions. People v. Perez, 701 P.2d 104 (Colo.App.1985). Because we conclude that the prosecution’s improper use of a defense-retained expert in its case-in-chief was prejudicial to defendant, we reverse the judgment of the court of appeals and remand for a new trial.

I.

On October 23, 1980, a man using the name “Fred Garcia” opened a checking account at the Park National Bank (Park National) in Pueblo with a $200 cash deposit. Later that day, he deposited into the account a $5,000 check drawn on the United Bank of Pueblo (United Bank) account of Douglas Bratton. During the following four days, the same man used the deposit receipt Park National had issued him to cash four checks in the amounts of $5,000, $4,500, $1,000 and $900.

On October 27, United Bank officials notified Park National that it would not pay the Bratton check due to insufficient funds. Shortly thereafter, it was discovered that the Bratton check had been forged and that the four checks drawn on the Garcia account (for a total of $11,400) had all been cashed on the basis of the single $5,000 deposit receipt.

Approximately two weeks later, an employee of Park National observed the defendant at a restaurant and recognized him as the man who had opened the Garcia account. Defendant was subsequently arrested. Two Park National tellers identified defendant from a photographic lineup as the individual who had cashed checks on the Garcia account.

Investigators obtained handwriting exemplars from the defendant and submitted them with the checks and account card (collectively the “questioned documents”) to Howard Rile of the Colorado Bureau of Investigation (CBI). After comparing the questioned documents with defendant’s exemplars, Rile was of the opinion that defendant had probably written seven of the eight documents, but he was unable to make a positive identification.

In January of 1982, defendant’s attorney retained Andrew J. Bradley, a handwriting expert, to analyze the various documents in preparation for trial. Bradley examined only photocopies of the questioned documents, and reached a tentative conclusion that the questioned documents were probably not written by the defendant. He was unable to render a final opinion without examining the original documents.

The defendant later reached an agreement with the prosecution, under the terms of which he pleaded guilty to the theft charge and the trial court dismissed the forgery charge. Prior to sentencing, however, the court allowed defendant to substitute new counsel and entertained defendant’s motion to withdraw his guilty plea pursuant to Crim.P. 32(d). The court held a hearing, ruled that defendant’s plea was not voluntary, and granted defendant’s motion. The court reinstated the forgery charge and set the case for trial. Bradley testified at the hearing on defendant’s behalf regarding his analysis of defendant’s handwriting.

Subsequent to the 32(d) hearing, defendant’s attorney arranged for the original questioned documents to be examined by Bradley. He examined the originals but did not alter his opinion that the defendant had not written them.

In May of 1982, Bradley obtained several “course of business” writings from defendant, consisting mostly of checks defendant had written on his own account. In light of the new evidence, Bradley changed his opinion and concluded that defendant had written the questioned documents.

As a consequence, the defense decided not to call Bradley as its expert witness at trial. The prosecution, however, sought to endorse Bradley as its own expert. In testimony out of the presence of the jury, Bradley revealed that sometime after deciding that defendant had written the questioned documents he had been in contact with Rile, the CBI expert, regarding his analysis. He also revealed that he had discussed the matter with the district attorney and had not informed defense counsel of this contact until the day of the trial. Bradley conceded that he considers himself an agent of the attorney who hires him and that defense counsel in this case had never authorized him to speak with the prosecution.

Over objection by the defense, the trial court permitted Bradley to testify during the prosecution’s case-in-chief, and the prosecution called no other experts at that time. The defense presented the testimony of Henry Silver, a handwriting expert, who offered the opinion that the defendant had not written any of the questioned documents. The prosecution later called Rile to rebut Silver’s testimony, and Rile testified that, in his opinion, the defendant had probably written seven of the eight questioned documents.

The defendant contends that the prosecution’s use of Bradley during its case-in-chief violated his right to effective assistance of counsel as well as the attorney-client privilege. We need address only the former claim.

II.

Our analysis of this case is governed by our recent decision in Hutchinson v. People, 742 P.2d 875 (Colo.1987), in which we held that the prosecution’s use of a defense-retained expert during its case-in-chief, absent compelling circumstances or waiver, violated the defendant’s right to effective assistance of counsel. Hutchinson, 742 P.2d at 879. We held further that such use of a defendant’s expert ordinarily should give rise to relief only upon a specific showing that the defendant suffered prejudice thereby, and we adopted the test announced in Strickland v. Washington, 466 U.S. 668, 691-96, 104 S.Ct. 2052, 2066-69, 80 L.Ed.2d 674 (1984), to assess the effect of the improper testimony: “Whether there is a reasonable probability that, absent the improperly used witness, the fact finder would have had a reasonable doubt respecting guilt.” Hutchinson, 742 P.2d at 886.

A.

We find first that no compelling circumstances existed which permitted the prosecution to call Bradley during its casein-chief and that the defendant did not waive his right to object to Bradley’s testimony.

We recognized in Hutchinson that some circumstances may justify the prosecution’s use of a defense-retained expert in its case-in-chief as when, for example, “the prosecution could not obtain other competent experts in the field of handwriting analysis.” 742 P.2d at 886. Our examination of the record below reveals no such compelling justification.

The prosecution decided to call Bradley as its own witness after it learned that he held an opinion favorable to its case and that he had considered a substantial number of defendant's course of business writings in formulating his opinion. Because the prosecution’s expert, Rile, had not considered those writings, but instead relied upon fewer and less telling exemplars, Rile was unable to express as much certainty in his opinion as Bradley was that the defendant had written the questioned documents. As a consequence, the prosecution relied on Bradley as its sole expert during its casein-chief and reserved Rile as a rebuttal witness.

The facts below are similar to those we addressed in Hutchinson, in which the defense-retained expert requested Hutchinson, the defendant, to provide handwriting samples and specifically asked him to use certain words which had been misspelled on the forged documents. The expert noted that Hutchinson misspelled two words in precisely the manner they were misspelled on the forged documents, and his testimony to that effect was thus more persuasive than the testimony of other experts who had not conducted similar spelling tests. We found that to be an insufficient justification for permitting the prosecution to call that expert: “[W]e see no justification in permitting the prosecution to use a defense expert simply because its own experts failed to conduct their own tests in a manner that could have produced results equivalent to those of the defense expert.” 742 P.2d at 887. Although the present case involves the defense-retained expert’s use of samples not made available to the prosecution, we find the reasoning of Hutchinson equally applicable in these circumstances.

Further, the fact that the defendant called Bradley to testify at the 32(d) hearing did not constitute a waiver of defendant’s right to object to the prosecution’s use of Bradley during its case-in-chief.

“A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege.” Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938). In Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970), the Supreme Court held that, “[wjaivers of constitutional rights not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences.” Id. at 748, 90 S.Ct. at 1469. Accord King v. People, 728 P.2d 1264 (Colo.1986). Because of the importance of the right at issue, we will “indulge every reasonable presumption against a waiver_” King, 728 P.2d at 1268. In this case, defendant’s counsel could not foresee that the expert whom he retained would be called by the prosecution as its expert during its case-in-chief. As a result, defendant cannot fairly be said to have knowingly relinquished his right to prevent Bradley’s appearance at trial.

In addition, finding a waiver under these circumstances would be especially troubling for two reasons. First, it has long been established that “it would be intolerable that one constitutional right should have to be surrendered in order to assert another.” Simmons v. United States, 390 U.S. 377, 394, 88 S.Ct. 967, 976, 19 L.Ed.2d 1247 (1968). In Simmons, the Court held that a defendant’s testimony at a suppression hearing, utilized to protect his fourth amendment rights, could not later be used against him at trial, in violation of his fifth amendment privilege against self-incrimination. Here, the defendant offered Bradley's testimony at the 32(d) hearing in support of his claim that his previous counsel had rendered constitutionally ineffective assistance. To find that he thereby waived his right to prevent Bradley from testifying during the prosecution’s case-in-chief would put too high a price on his use of the 32(d) hearing to protect his right to effective assistance of counsel.

A second and related problem with finding a waiver in these circumstances is the practical effect it would have on the retention and use of defense experts. In this case, defense counsel continued to seék expert assistance from Bradley following the 32(d) hearing, and it was only after the hearing that defendant provided Bradley with several course of business writings that changed Bradley’s opinion. Had defendant faced the prospect of the prosecution calling Bradley as its own expert during its case-in-chief, defendant’s counsel would have been wise to discharge Bradley and to secure a different expert to examine defendant’s course of business writings. And had he done so, the prosecution never would have had an opportunity to take advantage of Bradley’s more careful analysis of defendant’s writings. Our finding a waiver in these circumstances would merely encourage that sort of gamesmanship by defense counsel to protect the confidentiality of their pretrial investigations.

We conclude that no compelling reason justified the prosecution’s use of Bradley during its case-in-chief and that the defendant did not waive his right to object to Bradley’s testimony.

B.

Because the prosecution’s use of Bradley during its case-in-chief violated defendant’s right to effective assistance of counsel, we must now consider whether defendant was prejudiced by the improper testimony. Hutchinson, 742 P.2d at 879-80.

There was no dispute at trial that the questioned documents were written by the same person. The prosecution attempted to prove that the defendant was that person through the testimony of Bradley and Rile, on the basis of his handwriting, and through the testimony of several bank employees, who identified the defendant as the person who opened the account or cashed checks on the account.

The defendant claimed that he was in the hospital recuperating from inpatient surgery on his left arm the afternoon the account was opened. A physician from the hospital and a nurse both testified that defendant did indeed have an operation, but neither could verify that defendant had remained at the hospital following surgery. In addition, the defense attempted to show that the crimes were committed by an acquaintance of the defendant’s who looked like him. That acquaintance testified in rebuttal that he was in prison in California during the entire period in which the crimes were committed. The defense presented the testimony of the defendant’s brother, his wife, and his friend in support of his claims.

Even without the testimony of Bradley, the prosecution produced evidence sufficient to support the jury verdicts. However, we are unable to conclude that there was no reasonable probability that the jury would have reached the opposite conclusion. See Hutchinson, 742 P.2d at 887. Rile testified only that the defendant probably wrote the questioned documents, and in its closing argument the prosecution emphasized that Bradley had earlier been retained by the defense. Without Bradley’s testimony — and without the impact on the jury of his having changed his opinion — the jury may have found defendant’s case more compelling.

We, therefore, reverse the judgment of the court of appeals and remand the case for a new trial.

ERICKSON, J., dissents and VOLLACK, J., joins in the dissent. MULLARKEY, J., dissents.