People v. Garner , 1987 Colo. LEXIS 537 ( 1987 )

ERICKSON, Justice.

This is an interlocutory appeal pursuant to C.A.R. 4.1. The defendant, Ruth Garner, was charged with first-degree murder, section 18-3-102(l)(a), 8B C.R.S. (1986), and a crime of violence, section 16-11-309, 8A C.R.S. (1986). The defendant made incul-patory statements to both lay witnesses at the homicide scene and also to police officers. Defense counsel filed a motion to suppress all statements made by the defendant. The trial court granted the motion in part, suppressing custodial statements made by the defendant, and denied the motion as to other statements.

The only issue before us in this interlocutory appeal is whether the trial judge erred in suppressing a statement made by the defendant to Officer Ramirez, an investigating officer, which the prosecution seeks to use for impeachment purposes if the defendant elects to testify in her own defense. The prosecution does not assert that it has the right to use the statement in the prosecution’s case-in-chief and limits this appeal to use of the statements for impeachment purposes.

To justify an interlocutory appeal, and the delay caused by such an appeal, the prosecution must certify that “the appeal is not taken for purposes of delay and the evidence is a substantial part of the proof of the charge pending against the defendant.” C.A.R. 4.1(a). The prosecution’s certification is admittedly in the form, and contains the words, required by C.A.R. 4.1(a), but the prosecution’s brief and the record do not support the certification. The prosecution’s brief states that the only relief sought is the right to use the defendant’s statement to Officer Ramirez for impeachment purposes. The chronology and procedures followed in a criminal trial require dismissal of this appeal because the evidence suppressed is not a substantial part of the proof of the charge. The statement in this case would only be used, if at all, after the prosecution’s case-in-chief is completed and then only to weaken or discredit the defense case if the defendant elected to testify. To justify this interlocutory appeal, we must assume that the defendant will elect to take the stand in her own defense and testify in a manner contrary to her statement to Officer Ramirez. Unless both assumptions are true, impeachment by use of a statement given by the defendant to Officer Ramirez is not a genuine issue. Because the suppressed statements are not a substantial part of the prosecution’s proof, the trial court’s ruling does not fall within that limited category of cases that we review on interlocutory appeal. C.A.R. 4.1; People v. Valdez, 621 P.2d 332 (Colo.1981).

Accordingly, the appeal is dismissed.

ROVIRA, J., dissents.