“Our review of the sealed information reveals that the information was not likely to have exculpated defendant or have provided impeaching material concerning prosecution witnesses.”
How later courts described this case
- “Our review of the sealed information reveals that the information was not likely to have exculpated defendant or have provided impeaching material concerning prosecution witnesses.”
- indicating that it was only the term “individual” in the definition of enterprise that required further definition
- "Thus, [a federal statute] defines 'enterprise' by stating what it 'includes,' a word that normally operates to extend rather than limit.... [The Colorado statute], on the other hand, defines 'enterprise' by stating what it 'means,' which ... is a word of limitation."
- “[W]e decline to impose additional requirements for proof of the existence of an enterprise. These proposed requirements are beyond those mandated by the explicit language of our statute.”
Written by the judges who cited it.
The opinion
Judge JONES
concurring in part and dissenting in part.
I respectfully dissent to part VII of the opinion. I reluctantly concur with part I of the opinion, perceiving that the trial court's comments, while unnecessary and ill-advised, do not constitute reversible error.
I agree with defendant that the trial court erred in granting the prosecution's motion to amend the grand jury indictment on the first day of the trial. I incorporate here the views I expressed in my dissenting opinion in People v. Valdez, 928 P.2d 1387, 1393 (Colo.App.1996).
While Crim. P. 6.8(a) and 6.8(b) allow for amendment of an indictment under certain circumstances, no such amendment may be made that has the effect of prefudicing the defendant on the merits of the case, and no indictment may be amended as to the substance of the offense charged. Sawyer v. People, 173 Colo. 351 , 478 P.2d 672 (1970). An indictment wrongfully amended by the trial court represents the substitution of the court's judgment for that of the grand jury and, thus, does not properly charge a crime. People v. Zupancic, 192 Colo. 231 , 557 P.2d 1195 (1976). Such an insufficient indictment does not subject the defendant to the jurisdiction of the trial court. People v. Westendorf, 37 Colo.App. 111 , 542 P.2d 1300 (1975).
Here, I believe that the trial court allowed amendments to the indictment that were substantive and prejudicial.
The date in count 9 was changed from January 18, 1996, to April 18, 1996. That in count 10 was changed from April 26, 1997, to April 26, 1996, as was the date charged in count 11.
The evidence on which the prosecution based its motion to amend these dates was before the grand jury, which could have charged the "amended" dates if it had so chosen. The periods of time defined by the original dates and the amended dates are significant, and it should not be presumed that the original dates only represent seriv-ener errors in the indictment. In short, these are substantial changes, under the circumstances of this case and, therefore, prejudicial. See People v. Zupaneic, supra.
The changes made to count 19 of the indictment expanded the alleged time the crime was committed from one day, January 9, 1997, to several days, between January 3 and 9, 1997. The grand jury may be presumed to have been aware of evidence that could lead one to believe the offense occurred over several days, and yet it returned an indictment charging the offense on only one of those days.
The prosecution thought to speak for the grand jury by seeking to amend the time of the offenses charged in the specified counts. This was not proper, for it expanded the indictment in a way that only the grand jury itself can do. See People v. Zupaneic, supra (court may not substitute its judgment for that of the grand jury). This broadening of the indictment constituted substantive changes and is per se reversible error if allowed, as here. See Stirone v. United States, 361 U.S. 212 , 80 S.Ct. 270 , 4 L.Ed.2d 252 (1960); see also United States v. Wright, 932 F.2d 868 (10th Cir.1991); People v. Simmons, 973 P.2d 627 (Colo.App.1998).
*51 Furthermore, in allowing the amendments to the indictment on the day of trial, almost a year after the indictment was reported out of the grand jury, the trial court increased the prejudice to defendant, because defense counsel had no time properly to prepare defenses concerning the amended indictment, and counsel's motion for continuance was denied.
Accordingly, I would reverse the judgment as to the amended counts and remand the cause with directions to vacate the convie-tions and sentences as to those counts, and to reinstate the original counts of the indictment for further proceedings.