The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Johnny Estevan CISNEROS, Defendant-Appellant.
Nos. 81CA0367, 81CA0752
Colorado Court of Appeals, Div. III.
Feb. 17, 1983
Rehearing Denied March 24, 1983
665 P.2d 145
Certiorari Denied (Cisneros) June 20, 1983. Certiorari Granted (People) June 20, 1983.
Defendant also contends that the trial court erred in denying his motion to dismiss based on destruction of evidence. We disagree.
In People v. Roark, 643 P.2d 756 (Colo. 1982), our Supreme Court explored the duties of official investigators to gather or preserve possible exculpatory evidence during the investigation of criminal activities. There, the court declined to impose any such duty when “there is no indication that the police acted in bad faith in allowing the evidence to become unusable without accomplishing tests for possibly relevant information.”
Defendant‘s motion to dismiss alleged that a “rape kit” containing various evidence respecting the sexual assault had been lost or destroyed by the prosecution. The record reveals that the Jefferson County Sheriff‘s Department disposed of such evidence only after being informed of the initial decision of the victim not to prosecute defendant. Under this unique circumstance, we conclude, as did the trial court, that “there was no prosecutorial misconduct or misfeasance in the destruction of the evidence itself.” Thus, the trial court did not err in denying defendant‘s motion.
The judgment is affirmed.
BERMAN and TURSI, JJ., concur.
J. Gregory Walta, Colorado State Public Defender, Michael Heher, Deputy State Public Defender, Denver, for defendant-appellant.
KIRSHBAUM, Judge.
Defendant, Johnny Estevan Cisneros, appeals his jury conviction of second degree burglary and of habitual criminal pursuant to the habitual criminal act,
The record discloses the following facts. During the night of April 20, 1980, the residents of a Colorado Springs home discovered defendant hiding under a bed in an unoccupied bedroom. Police officers were summoned, and an information alleging second degree burglary was filed against him. The information also requested sentencing pursuant to the habitual criminal act because of alleged felony convictions of defendant in 1973 and 1976. The 1976 con
Prior to trial, defendant moved to dismiss the habitual criminal act counts, asserting that because the trial court conducting the providency hearing failed to comply with the then applicable provisions of
Trial to a jury commenced January 7, 1981. On January 9, 1981, the jury foreman informed the trial court that “the jury is at a complete impasse on attempting to reach a verdict.” A mistrial was declared, and a new trial commenced March 2, 1981.
Defendant again unsuccessfully requested dismissal of the habitual criminal act counts. He was convicted of second degree burglary, and was found to be subject to the provisions of the habitual criminal act.
I. DECLARATION OF MISTRIAL
Defendant contends that the trial court erred in granting a mistrial in January 1981 and that his retrial constituted double jeopardy. We disagree.
When a criminal trial is terminated by a trial court because the jury cannot reach a verdict, reprosecution of an accused is not barred by the doctrine of double jeopardy. Ortiz v. District Court, 626 P.2d 642 (Colo.1981). Absent an abuse of discretion, the discharge of a jury and a declaration of mistrial for inability to reach a unanimous verdict does not constitute error. Barriner v. District Court, 174 Colo. 447, 484 P.2d 774 (1971). The trial court here questioned the jury foreman regarding the progress of the jury‘s deliberations, and, based on these inquiries and upon comments by both counsel, concluded that a declaration of mistrial was a manifest necessity. The record reveals that the trial court did not abuse its discretion in reaching this conclusion; hence, defendant‘s retrial did not subject him to double jeopardy. Barriner v. District Court, supra.
II. INSTRUCTIONS
Defendant also contends that the jury instructions respecting specific intent and describing the elements of theft were improper. Defendant did not object to these instructions at trial, did not offer alternative instructions at trial, and did not include these asserted errors in his motion for new trial and judgment of acquittal. Hence, absent plain error, any defect in the instructions must be deemed harmless.
The trial court‘s instruction defining specific intent was substantially similar to an instruction on this issue approved by our Supreme Court in People v. Mack, 638 P.2d 257 (Colo.1981). The trial court‘s theft instruction contained the words of the relevant statute and thus adequately apprised the jury of the requisite mens rea. People v. Gresham, 647 P.2d 243 (Colo.App.1981). Hence, these instructions did not constitute plain error.
III. HABITUAL CRIMINAL SENTENCE
Defendant finally contends that he was not adequately advised pursuant to
A prior conviction obtained in violation of a constitutional right cannot be used to enhance punishment under the habitual criminal act. Watkins v. People, 655 P.2d 834 (Colo.1982). A plea of guilty must be entered voluntarily and with full understanding of the essential elements of the offense to withstand constitutional scrutiny.
The record of the 1976 providency hearing reveals the following pertinent colloquy between the trial court and defendant respecting the elements of the offense of second degree burglary:
THE COURT: It says here that on the 1st day of June of this year, ... you unlawfully and feloniously entered a building, ... and that you intended to commit the crime of theft from that building.
Do you understand you‘re saying, “Yes, I did that.“?
THE DEFENDANT: Yes.
THE COURT: Did you in fact do that?
THE DEFENDANT: Yes.”
....
THE COURT: ... Did you have permission to enter in the back window?
THE DEFENDANT: No.
THE COURT: And you knew that you were committing a crime when you did that, is that right?
THE DEFENDANT: Yes.
THE COURT: Did you intend to steal those purses? Did you intend to steal something when you got in?
THE DEFENDANT: Yes.
THE COURT: You intended to steal whatever you‘d find, I assume; is that correct?
THE DEFENDANT: I was just there going to get some money.
While these discussions adequately established a factual basis for the alleged offense, at no time did the trial court either describe the elements of second degree burglary or ascertain whether defendant understood those elements. We recognize that in some circumstances the reading of the charge alone may satisfy the requirements of
Here, the information did not refer to the mental state of knowing conduct required for conviction of second degree burglary under
The judgment of conviction of second degree burglary is affirmed. The judgment declaring defendant an habitual criminal is reversed, and the cause is remanded to the trial court with directions to vacate the sentence imposed and to impose a new sentence consonant with this decision.
TURSI, J., specially concurs.
BERMAN, J., dissents.
Because I agree that the instruction on theft, given by the trial court, when read in its entirety, does not rise to the level of plain error, I do concur. However, because the instruction is susceptible to a reading which erroneously states the law. I would disapprove of its use.
The instruction given, which substantially tracks Colo.J.I.Crim. 16.1, reads as follows:
“A person commits the crime of theft if;
He knowingly obtains or exercises control over anything of value of another without authorization; and intends to deprive such other person of the use or benefit of the thing of value.
The elements of theft are therefore:
1) Knowingly:
a) obtaining or exercising control over
b) anything of value of another
c) which is the property of another
2) Without authorization
3) With specific intent to deprive such other person permanently of the use or benefit of the thing of value.”
Although the first full paragraph accurately follows the pertinent part of the theft statute,
To avoid this problem, I suggest the following simple changes in the form of the instruction:
A person commits the crime of theft if:
He knowingly obtains or exercises control over anything of value of another without authorization; and intends to deprive such other person of the use or benefit of the thing of value.
The elements of theft are therefore:
1) Knowingly:
a) obtaining or exercising control over
b) anything of value of another
c) which is the property of another
d) without authorization
2) With specific intent to deprive such other person permanently of the use or benefit of the thing of value. (changes emphasized)
BERMAN, Judge, concurring in part and dissenting in part.
I concur in parts I and II of the majority opinion, but I dissent as to part III. The majority acknowledges that the discussion between the judge and defendant established “a factual basis for the alleged offense.” However, the majority reverses the habitual criminal conviction because the trial court did not “describe the statutory requirement that the entry be obtained without authorization” and that the defendant‘s answers to the court‘s questions “do not establish that [defendant] knew and understood the essential elements of that offense.”
“A person acts ‘knowingly’ or ‘wilfully’ with respect to conduct or to a circumstance described by a statute defining an offense when he is aware that his conduct is of such nature or that such circumstance exists. A person acts ‘knowingly’ ... with respect to a result of his conduct, when he is aware that his conduct is practically certain to cause the result.”
Furthermore, when defendant responded negatively to the trial court‘s question as to whether he had permission to enter in the back window, he demonstrated that he knew that he had no authorization to enter, for permission means authorization. Webster‘s New International Dictionary (2d ed. 1938). The record also reveals, in that part not quoted in the majority opinion, that the defendant knew that when he entered the house it was inhabited by sleeping people, and knew that he entered for the purpose of getting money, which he accomplished by taking two purses and leaving the premises.
The majority‘s reliance upon Watkins v. People is misplaced. The reason the reversal was granted in that case was explained by the court as follows: “The crime of conspiracy is a crime of specific intent and its elements are not readily understandable without further explanation.” That is not the case with second degree burglary which is one of the most understandable of crimes. See
Further, the defendant was originally charged with burglary as a class three felony, but the People as a concession amended the charge to a class four felony. See
If the law requires a reversal under these circumstances, then indeed, Mr. Bumble‘s cynical remark was prophetic. I would affirm the judgment in its entirety.