*1 employing procedure by Crim. P. of By authorized illegal vacating in violation the sentence found to be and rights substituting a sen- prisoner’s therefor, imprisonment respondent tence of life judgment imposed had imposed the which would have been only qualified to jury in fact returned the verdict it was — a life sentence. Conse- return under the circumstances judgment the sentence quently, of conviction and greatest dictates of the statute to the extent conform the presented the court possible under the record as it was upon remand. discharged. rule heretofore issued is
No. 24895 v. The of the State Colorado Olguin Michael A.
(497 1254) P.2d Decided June *2 MacFarlane, Rogers, Defender, J. D. R. State Public Rollie Gray, Purvis, Deputy, R. Deputy, John A. William Chief Deputy, plaintiff in error. Moore, Dunbar, Attorney General, John
Duke W. Sorenson, Assistant, for defendant in error. David A. Deputy, En Banc. opinion Court. DAY delivered the Olguin’s defendant appeal arises out of
This filed in A direct information was of an automobile. theft He charging defendant the theft. with Boulder district capias out of the district on or a issued was arrested by the district basis of the information filed court on the Shortly attorney. thereafter, a defendant was interviewed lawyer through arrangement who was available acting lawyers public Boulder district court to have two as indigent represent pending defenders to persons, official January 1, activation of the state defender’s office on argument case, 1970. At oral of this was admitted that interviewing acting public defender advised defendant questioned remain silent if Additionally, any advised defendant present that he desired to be questioning of defendant. day,
The next police was interviewed attorney. officer and a He made an incrimi- nating sought unsuccessfully statement which he to have suppressed by prior to motion trial. The statement was later used trial as evidence the defendant.
I. Defendant’s challenge first to his conviction *3 the accompanying information and affidavit contained mere ly legal conclusions and failed to set forth sufficient underlying facts from judge which the district could find probable support cause to the issuance of the argues defendant’s arrest. illegally The defendant he that was arrested, and that the statement obtained from him while he custody reject was in should suppressed. have been We the contention as without merit.
In 488, 575, v. 176 Colo. 491 P.2d we noted: decision, Whiteley Warden,
“Our like Wyoming [that v. Penitentiary, State 560, 1031, U.S. 91 S.Ct. 28 L.Ed.2d (1971)] complaint is limited practice. charging to The process, when information, governed indictment or is not 7(b)(3) our decision. Crim. P. permits filing the of a direct information and leaves the probable determination of cause preliminary to the hearing. 7(g)(1). grand Crim. jury, returning bill, true is the probable arbiter of It cause. is clear that an indictment or information is sufficient if ” charges a crime in the words [Citing statute. cases] In line with cases, numerous we conclude the information sufficiently charge against advised defendant of the him so as against it, protect to enable him to defend him from (See prosecution further for the same offense Ciccarelli v. People, 413, 368), jury 147 Colo. 364 P.2d and to advise the (See charged of the nature Sarno v. of the offense 41). 528, logical 223 P. quite It seems to hold that an provide information sufficient a basis for defendant’s clearly provide bringing sufficient to a basis for before the court in the first instance.
II. Defendant’s second contention is that incriminat his ing acting deputy statement was made in the absence of the and, therefore, defender his basis, effective assistance of counsel was denied him. On this argues citing he suppressed, the statement should have been 201, 1199, Massiah United v. 377 U.S. 84 S.Ct. alia, hold, inter L.Ed.2d 246. That case did “* * petitioner protections *that the denied was the basic guarantee Sixth when there was used [the Amendment] him at his trial evidence of his own words, agents which federal had elicited from him after had been indicted and in the absence of his counsel.” distinguishable
But the facts are See also case at bar. California, Miller 382 U.S. 88 S.Ct. 20 L.Ed.2d Defendant acting deputy public was advised defender to remain silent request attorney’s and to presence any questioning. suppression hearing, At defendant stated that he by “rights,” knew what was meant though even he asserted that he had not been advised of them *4 When deputy the officer and the district attorney entered waiting, the room where defendant was they first introduced engaged themselves and then in some Thereafter, “small talk” not related to the case. the officer stated that had reason to believe that defendant was Longmont, involved in the theft of the in automobile wanted to talk to defendant in relation thereto. Defendant
immediately stated, you “I don’t know what want to talk to it,” me about. I did or words to that effect. There is a conflict testimony attorney and the officer as to whether formally defendant was advised of his remain silent and have attorney immediately immediately before or after this statement was made.
The lower court found that defendant’s statement was voluntarily made, and response not in question. to a evidence, light viewed in a most favorable Vinyard States, United F.2d supports this finding. apparent
It is from the record that defendant’s admission i.e., the theft was voluntary, volunteered, and not elicited as Massiah in v. United supra. The statement was properly admitted into evidence.
Judgment is affirmed.
MR. JUSTICE dissenting. GROVES dissenting: GROVES I respectfully dissent for the expressed reason my special concurrence People v. (1971). P.2d