*1 14,617. No. People. v. The Coates (106 354) P. [2d] July 1, Rehearing 1940. denied November Decided plain- Mr. M. Max D. Mr. Fred Melville, Winner, in error. tiff Byron General,
Mr. G. Mr. Reid Attorney Rogers, Williams, Assistant, Carroll, Mr. John A. Wil- liam E. for the people. Doyle,
En Banc. Justice Bakke delivered the the court. of opinion error, in below, was convicted of
Plaintiff murder in the first and sentenced to death for degree the killing, on the night 13, 1938, of one Fred October Renovato, a member of the Re- police Denver force. versal on a sought writ error. Reference will be made to plaintiff defendant, in error as the or Coates.
The is a following facts, statement of the which we think finds in support evidencé, and which the jury were entitled to believe.
“Coates one at had cohabited with Garcia intervals some Garcia states years. she awas her prostitute, get that Coates had tried to be his him, woman to ‘hustle’ for and that she had shared her at times him. She earnings various with further stated three months during previous October 13th she had left Coates and was with living one at Sam Williams 2047 Market a street, rooming house. Coates was with this displeased arrangement. 13th, On October in the late afternoon or early evening, he was seen standing around outside Market street address. Later that evening he accosted she Garcia as outside, came and forced her to return to his room at 2224 Larimer street. After there, drank arriving they wine, some and at approximately 7:30 p.m. went they to bed and to At 9:30 sleep. Garcia p.m. woke up stole out the house while Coates was She asleep. boarded taxicab on Larimer street and returned to the room of Williams. Sam Shortly thereafter Coates and, finding awakened Garcia he gone, placed a revolver in his and some extra shells pocket and went immedi- bringing purpose ately Market street for the to 2047 found room and entered He Sam Williams’ her back. pulled bed, and her off the bed. He on the Garcia alley. pulling of the house and into the out started Williams, room, been who had Sam Meanwhile sought men landlord, his and the two Mclver, out Grant building, arriving proceeded there the back of approached alley. just A dis- and Garcia as Coates twenty separated Mc- feet them. tance of about When flashlight placed Coates, on turned a latter lver gun pointing and, of him in front at Mclver go Williams, told them to on about their business. ‘go police.’ Williams to call the Mclver asked He said manner that could in such a Coates hear it. While this police, Mclver, went search Williams Hedspeth idea, with one Bert same drove the latter’s to the corner of 21st and Larimer streets, automobile *3 Fred Renovato. Mclver asked he detective found where help get go down and me the he would ‘if Renovato dragging through lady man that was the the from alley, Coates; told and him that he Garcia went in the car me.’ ‘He armed.’ dragged street to 22nd “Coates, had Garcia meanwhile way alleys. proceeded 22nd street He south on had Lari- the east side of street, had crossed to to Larimer walking alley the Larimer between mer, and was toward in Mclver and on 22nd street. Renovato and Lawrence street, on 22nd overtook car drove south Renovato’s Coates and Garcia, the and thereafter cut across to stopping wrong position street, the car a side of the at Coates and ten feet ahead of Garcia. Renovato some stepped ‘Hey, stop said, out of the car and here. What began you doing?’ At this moment Coates to fire. are go down, started to the second shot en- As Renovato body pavement. before his sank to his back tered more shots fired. or three were fired a Two Renovato pistol his own after he had few shots fallen down. [*] [*] [*] at he pointed gun
“Afterwards [Coates] and pulled times, trigger causing clicking several sound. left scene Coates then and shooting proceeded toward 23rd street Lari- alley between mer and Lawrence. According statement Coates made to the of detectives after his he captain arrest, on continued toward the railroad tracks. He reloaded * * gun out north proceeded city.
Coates was apprehended a few later in the rail- days road at yards Salle, La Colorado, and back to brought Denver and confined in until jail the trial. He admits owning gun used, and that he fired the fatal shots. While a of self defense plea presented on the trial, it is not on seriously urged review. Grounds reversal all center about the conduct of the trial.
Coates’ counsel summarize their assignments of error as follows:
“1. The defendant charged with homicide. The court permitted evidence of erroneously wholly unre- lated, separate and distinct crimes unduly which preju- diced the the eyes of the jury.
“2. made by Evidence of threats the defendant against deceased, third in no connected with the way persons, no long trial, had prior killing, place was highly prejudicial.
“3. The prosecution was improperly allowed cross- examine witness, Garcia, its own thus before place inadmissible, jury irrelevant, statements hearsay made her to the which police, highly were preju- *4 dicial to the defendant. This im- cross-examination was proper on two grounds: As from the
“(a) appears record, the prosecution’s claim of surprise cannot have been made in faith, good because her testimony nowise contradicted her state- ment to made the police. Before cross-examination
“(b) on the of ground sur- allowed, can be the prise witness must have given af- testimony testimony, was such and no firmative, hurtful given. Lopez Although had and Williams the witnesses
“4. impeached, prosecution to cor- allowed the was not been testimony. the In the case of their roborate bolster jury permitting Lopez, to this resulted witness department, given police not consider evidence presence defendant, and oath, under out of the subject cross-examination. not right a jury misinformed as
“5. The was police the court warrant, and officer to arrest without a by give the defend- instruction tendered refused to an respect. correctly in this stated the law ant which Rogue’s Gallery pictures were of the defendant “6. identity question hav- no evidence, not admissible justification ing for raised, and, been even if there were pictures, sets of introduction of different such prose- pictures not introduced on same could be both emphasize fact cution’s direct and rebuttal police a character. that was distinctly atmosphere the case entire “7. The Any horribly secure a and all devices to unfair. prosecution defend- used conviction were trial.” not have a fair ant did crimes, of other so-called evidence
1 and 2. The inadmissible, involved an at is contended was it which tempt following committed offenses to establish pimp (a) a That Coates was within defendants: chapter meaning §6845; 48, C.S.A., ’35 C.L. of section (c) upon (b) Garcia; made an assault was upon made Sam Williams. that an assault hustling (a) Garcia’s It is contended liability prosecution subjected him to under Coates point supra, not because decide, we do section concerning think evidence it it did or not we whether charged. to show a motive for crime admissible disputed that Coates considered an eco- It be cannot *5 488
nomic asset and that he endeavor to frustrate would any sufficiently take her him. from This attempt away from ex- appears defendant’s on direct testimony own amination “There has when to the response question, been .some used testimony, Joe, that you as a and is that prostitute her; collected from money true?, he answered, sure, “Sure years ago, yes, about — I The the conclu- justified have done that.” evidence very sion that the continued to the up same relationship time had homicide, “hustling” of the and that been she for him A inference right along. reasonable from in this was that defendant shot Renovato testimony because he take thought officer was attempting away him, “woman” and according to witness Mclver that what he and Renovato were about do. when the fatal shots were fired. we Consequently, are of the this' comes opinion testimony within crimes, to the rule exception evidence of other excluding v. Jaynes announced in People, 44 Colo. Pac. 325, the exception being evidence of of- another fense, which tends to prove some element of the one for which the accused is tried, being admissible. is ad-
(b alleged and The evidence of the assaults c) of the chal- missible as a res gestae. testimony part as lenged is summarized follows: “Witness Garcia: ‘Three hours before killing grabbed her her alley, and forced down the and her. slapped Three hours grabbed her, before he killing slapped her and her. He cursed knocked down a gun. with times to the he Many to kill prior killing threatened her.’ hit her Witness Williams: ‘Coates with a gun grabbed Garcia her to floor.’ pulled Witness Garcia: ‘Coates threatened Sam Williams on October 13 or short- ” Where, here, thereto.’ as ly prior con- elements of duct in the previous involved assaults continued down scene, very evening of which the fatal shooting culmination, such evidence concerning harmless, them merged that concerning part of as admissible assaults and threats which were gestae. the res *6 readily evening’s analysis dis-
A fair of the events says, Sam, “I that the threat to Williams: closes Sam you says, you Virginia, I but I don’t want to hurt about making, alone,” let defendant admits which upon together shoot- Garcia, the assault the fatal evening ing, place during 13, and all took the of October they circumstances, constitute an inseverable of chain re- the nervous excitement still the “while dominates power.” Schreyer, Minn. 271, flective Lambrecht v. 129 clearly 152 645. think the case N.W. We evidence in this by acquired that the discloses state of mind defendant up evening persisted early to and part of the in the fatal.shooting, including we are of the time of the by dur- opinion made that the statements the ing gestae. part 20 Am. Jur. of the res time this were strikingly existed A similar situation 10 982. 553, R.C.L. People, 149 434, 439, v. 59 Colo. in the case of Garcia testimony, con- that “The 614, in which we said Pac. cerning time, at the was done the transaction what bearing upon by as defendant, was relevant shooting properly officer; for the of the it cause was gestae.” part as a of the res admitted impropriety permit Concerning alleged of people’s ting witness Garcia of cross-examination clearly appears attorney, ele that the it the district justify sufficiently present “surprise” to ment of regarding her statement to the cross-examination police.
Surprise,
sudden
connection, is one of those
in this
frequently
susceptible
not
are
mental reactions which
causing
analysis away
the conduct of
one
presence
surprise,
must
determined
and since its
be
exercise
its
in the reasonable
discre-
the trial court
holding will not be disturbed unless abuse of
tion, its
defining
No ironclad rule
is shown.
cir-
that discretion
“surprise”
successfully
can
under which
be
cumstances
so in
asserted can be
The
do
any
laid
to
attempt
down.
given
must be
in the
facts
light
construed
in Babcock v. People,
of that case. This is
well illustrated
stated,
13 Colo.
it
Pac.
we
“where
which
that a
appears
contrary
witness
giving testimony
him,
reasonable
such
calling
expectation
party
be
party should
to cross-examine
such
allowed
recollection.” Garcia’s
purpose
refreshing
no
on direct and cross-examination
discloses
testimony
Her
more than a
discrepancy.
material
attitude was
Her
failure
remember.
silence was
hostile.
clearly
with her former
statement,
memory
Faced
became
active and
strangely
proceeded
she
reaffirm that
statement
material
She
not
im-
every
detail.
peached.
cross-examination
demonstrated
simply
of her
hostility
silence and
amply
un-
justified
*7
der
rule
(5, 7). 6 giving There was no error in or re- any fusal of instructions, nor in the admission in evi- photographs dence of the under the circumstances. As atmosphere contention that “the entire of the distinctly horribly simply unfair,” we answer that it not is borne out the record. judgment is affirmed and it is ordered that it be Monday, commencing during Decem-
executed the week ber 1940. Justice Bock Justice Hilliard and Mr.
Mr. Chief dissent. Justice Bock dissenting.
Mr. Otto regret necessity I dissent. That serious of this needlessly in the errors were committed is reflected emphasized majority opinion. It cannot be too often justice fairly, calmly court is a forum that a where according impartially administered to the rules of dealing are evidence and law. We uncertainties say prejudicial. that the errors here when we were not my opinion, granted. trial In new- should be concurs in this dissent. Justice Chief Hilliard 14,633.
No. Hill v. Hill. (107 597) P. [2d] September 23, Rehearing Decided 1940. denied November