*1 Commission, Utilities
P.2d 577 Colorado, The PEOPLE of the State of Plaintiff-Appellee,
B. disagree
We also with Caldwell’sas supplementary hearing sertion that MARQUEZ, Wilfred Delano by conducted the commission to determine Defendant-Appellant. the cost of the disallowed advertisements violated this court’s order in No. Caldwell to 82SA307. propriety
reconsider advertising Supreme Colorado, Court of expenses “in already view the record En Banc. established.” Our remand Caldwell directed the Dec. existing commission to review the record findings respect and make factual propriety including advertising ex-
penditures rate-making expenses under
the commission’s standards. established remand,
On the commissionreexamined the determined, contrary
record and to its ini- decision,
tial number of advertise- categorized
ments could not be as rate-
making expenses. No new evidence with
respect to the nature of the advertisements categorization
or their was heard
commission, regarding and the decision
propriety of each advertisements properly solely based on the record as prior appeal.
it existed to the initial
Having determined which advertisements properly rate-making
were included as ex-
penses Caldwell, in accordance with
commission then acted within its broad au-
thority taking steps additional to deter-
mine the cost of the disallowed advertise- required
ments that were to be excluded
from the Public Service rate increase. procedure
Such a is consistent with the duty legislative agent
commission’s as a
investigate and determine matters that are state,
in the interest of the and was not an
improper expansion of our remand order in
Caldwell. Ohio and See Colorado Smelt- Refining
ing Company v. Public Commission, 68 Colo. 187 P.
Utilities remaining
We have considered the chal-
lenges asserted Caldwell and find them
to be without merit. judgment of the district court is
affirmed. *3 Woodard, Gen., Atty. B.
Duane Charles Howe, Atty. Gen., Can- Deputy Joel W. trick, Petrusak, Gen., M. Sol. Robert Asst. Gen., Denver, Atty. plaintiff-appellee. for Encinas, P.C., Alfred Duane Montano & Montano, Denver, defendant-appellant. ROYIRA, Justice: defendant, Marquez, Delano Wilfred appeals his conviction two counts of robbery,1 second-degree as- aggravated sault,2 and crime violence.3 *4 also found the defendant was an habitual criminal.4 We affirm.
I. robbery out charges The arose House Motel in Colorado the Palmer prosecution’s estab- Springs. The evidence approximately 2:30 a.m. on lished that at 6, 1980, July armed men entered the two auto- lobby of motel. One carried an pistol, 12-inch knife. matic attempted men their identi- Both conceal caps. stocking ties with bandanas de- gunman, as the The later identified fendant, Lewis, the motel’s forced James guard, sergeant security who was also a Office, County the El Paso Sheriff’s subsequently go to the front desk and into forced to lie a rear office. Lewis was then his to Lewis’ pistol With floor. head, wallet. gunman removed Lewis’ gunman began unsuccessful The then an weapons. search Lewis for Butler, Myrtle The other robber forced clerk, go front desk motel behind the drawer, ap- to the which contained cash traveler’s proximately and some $35 checks, Butler the safe. When and then to safe, she was taken to open could not Lewis, top thrown on the rear office and gunman fur- preventing from thereby Lewis searching ther Lewis. This enabled .38 gun, a caliber revolver. to conceal his (1978 16-11-309, Supp.). 18-4-302, 8 C.R.S. & 1983 §3. 1. 8 C.R.S. § (1983 16-13-101(1), Supp.). 18-3-203, (1978 Supp.). §4. 2. C.R.S. & 1983 § knife-wielding proceeding then raised his criminal plea robber because his guilty interpreted prepara- knife Lewis in tendered accordance with Fed.R. point, tion for attack. At that Lewis objection an Crim.P. Defendant’s overruled, drew revolver and fired. The knife- jury his subsequently found wielding collapsed robber on the floor. him to be an habitual criminal. office, the
From the corridor outside the office, gunman began using firing into the H. Two struck wall as shield. shots first contends arm, Butler—one the left the other jury procedure selection used in El Paso fire, leg. the left Lewis and one returned County requirements failed to meet the gunman’s struck his shots arm. 7(b)(2) Rule Jury Colorado Rules of gunman stepped doorway then into the and Selection and Service that such failure However, aimed a “death shot” Lewis. should and of itself be sufficient to re- first, gunman in hitting Lewis fired quire 7(b)(2) Rule reversal. states: gunman immediately chest. The fled the September No later than scene. year thereafter, each each chief judge later, ap- A time shall supplemental short determine which lists peared Hospital in Colora- at Saint Francis applicable available each Springs gunshot do wounds to his counties his district. The chief judge chest and arm. No bullet remained shall direct the commissioner *5 arm, lodged county bullet chest in acquire but the to the had each in his district to Although near except his shoulder blade. defend- these lists no later than October ( n ) shock, signs provided ant he had was conscious as otherwise in subsection emergency physician, (b), the room where a Dr. this so all section that master lists Blum, simple may integrated prior removed the bullet with a 1March thereafter, procedure. Shortly po- following year.5 (emphasis the two the supplied). lice officers who removal witnessed the (b)(4)provides: Subsection physician. obtained the bullet from participating For those counties in the by experts Tests firearm established that sys- jury centralized automated selection removed the defendant’s bullet from supervision tem under of the state chest was fired from the revolver used administrator, court and deadlines during robbery. Lewis procedures acquiring and transmit- prosecution’s ting pre- At the supplemental conclusion of lists shall be case, attempted present the defendant scribed the state court administrator. However, an alibi court defense. trial proceeding which followed the de- refused to submit the defendant’s tendered challenging jury fendant’s motion ar- jury on alibi instruction to the the basis ray, County jury he called an El Paso com- that the such defendant had not established missioner as a witness. testified She was then found defense. county began participating since above, referred of the crimes jury system central automated selection proceeded whereupon the trial court supervision under the state court phase habitual criminal of trial. administrator, understanding it was her alleged judge Count five of the information that the chief made no had determi- previously supplemental availability, been nor the defendant had nation of list jury acquired of bail such convicted of federal offense had commissioners jumping. con- that the The defendant claimed this lists. She also testified central city directory system viction could not be used the habitual automated used the 7(a). solely Supplemental registration 5. lists Master lists consist of voter C.R.J.S.S. additional available, except city county lists in each in those counties include directories where city which used source drivers’ and chauffeurs’ licenses. 7(b)(1). directories the main C.R.J.S.S. jury prior January of the master lists “if juror disqualified that no shall be and driver licenses registration voter satisfied, examination of from the testimony, the this On the basis lists. evidence, juror from other quash the informa- motion to impartial an verdict 24(c) juror] will render denied. was pursuant to Crim.P. [the according tion and the evidence sub- to the law court did not err find the trial We mitted to the at trial.” court’s the record denying motion because potential juror, Mrs. Wil- of the voir dire failed to demonstrates cox, enmity or bias toward the disclosed no requirements of Rule 7 that the establish e.g., People Meyer, defendant. See showing met. He made no not been had (Colo.1981)(prospective juror pat- P.2d 103 in the County’s participation that El Paso prejudgment ently demonstrated “a fixed “the deadlines comply system did case and an unwill- the merits of the- about transmit acquiring and procedures for principles ingness accept apply those prescribed ... ting supplemental lists [as] trial”); that form the bedrock of a fair There administrator.” by the state court (Colo. People, P.2d 1331 Morgan v. County that El Paso also no evidence 1981) ability willing- (juror doubted to, the state or that denied access following explana- apply ness to the law have access to did not court administrator principles general of law re- tions supplemental lists.6 garding presumption of innocence and silent). Here, the right to remain most III. manifested a that can be said is that Wilcox next contends that be- The defendant prose- misunderstanding of the role of the refusing trial court erred cause the during cution and the defense a criminal challenge potential to a grant his for cause dire, trial. After its extensive voir to exercise juror, needlessly he was forced juror trial court was satisfied the could challenges. peremptory Section one of his Moreover, impartial verdict. render an (1978),requires the 16-10-103(l)(j), 8 C.R.S. expressed willingness apply Wilcox challenge for cause trial court to sustain principles find no “man- proper of law. We “a of mind where there exists state *6 by judge the trial ifest abuse of discretion” evincing enmity or toward the juror bias denying challenge for cause which defense counsel’s defendant.” Under disturbing his decision on would warrant dire, that she juror stated skilled voir Abbott, See, e.g., People v. 690 review. set thought the case must be both sides of (Colo.1984);People Taggart, v. P.2d 1263 make a determina- forth before she could (Colo.1981); People 1375 v. 621 P.2d Thus, suggested it that such tion. is 538, 1320 McCrary, 190 Colo. 549 P.2d the defend- disposition would have biased (1976). presumption of inno- by nullifying the ant cence. IV. discounts the voir
The defendant argues Defendant next that the by trial court which dire conducted any light into evidence of the bullet re clarify or shed admission claims “did not testimony body from his and the juror’s that both sides moved upon the insistence attending personnel medical violated his forth.” We disa of the case must be set privilege.7 statutory physician-patient Be- 10—103(l)(j)also states gree. Section 16— inviolate; therefore, preserve it master wheel dence maintenance of the system person shall not be examined as a witness through is to be a centralized automated following by cases: supervised court administrator. the state C.RJ.S.S. 10. (d) surgeon, registered physician, or A (1973 13-90-107(l)(d), nurse, & 1983 practice profes- 7. Section duly authorized to pertinent part: Supp.) any pursuant reads in laws of this state or sion to the (1) state shall not be examined without particular in which relations There patient encourage as to information consent of his policy confi- it is the of the law to
1095
created,
privilege
statutorily
cause
it
privileged.8
bullet was
Even if the
Community
strictly
must be
construed.
bullet could be considered “information”
Court,
Hospital
v.
Association
District
acquired
by
physician,
we believe that
98, 100,
243,
P.2d
194 Colo.
570
244
it
physical
once was removed it was a
ob-
“any
privilege
ject
covers
information ac-
implicate any
that did not
testimonial
quired
attending
patient,
confidentiality
patient
which was
between the
and the
necessary
physician]
him
physician.
enable
[the
§
prescribe
patient.”
or act for the
13-90-
It is also
police
uncontradicted that two
107(l)(d),
(1973
Supp.).
6
&
C.R.S.
1983
officers witnessed the removal of the bullet
encompasses
Information
more than com-
emergency
in the
room
while
pa-
by
munications
statements made
case,
conscious.
such
no confiden-
resulting
tient but
includes observations
State,
existed. See Green v.
tiality
257
from examination. Colorado Fuel & Iron
(1971) (admission
Ind.
cerns verbal communications or informa
respect
through
to the
With
admission of
tion obtained
or
observation
exam
bullet,
argues
defendant-patient
the
that
the
ination. Where the
oral
acquired by
bullet
was
ly
physician
itself
“information”
communicates to the
informa
attending
nature,
physician
the
which
privilege
enabled the
tion
a confidential
the
physician
prescribe
likely
require
to
or act
physician
and therefore
to
exclusion of
acquired
necessary
attending
patient
supports,
the
was
the
that
bullet was obtained
the
prescribe
physician,
private party,
to enable him to
or act
not
the act of a
who was
patient
for the
....
acting
agent
police
as an
of the
but
out
necessity.
Benson,
People
See
v.
176
medical
Although
suggests
the
defendant
that
bul-
421,
(1971); People
Colo.
derson,
1096 personnel was concerning both medical limited to testimony such communica Decina, 2 133, People acquired through v. N.Y.2d information observation tions. (1956) 799, N.Y.S.2d 558 Blum nor N.E.2d 157 and examination. Neither 138 negligence op for criminal statement (prosecution any testified verbal nurse automobile), the court held that erating may have communication defendant phy required exclusion of the privilege circumstances, them. Under these made to concerning the defend testimony sician’s that we conclude the admission into evi- epilepsy which the history medical ant’s challenged the bullet and the testi- dence of physi to the had communicated defendant physi- not violate the defendant’s mony did also custody. See police cian while privilege. cian-patient (La.1980) Carter, v. 383 So.2d State de (doctor’s testimony inadmissible where V. doc gunshot wound told suffering fendant contends that The defendant officers, police tor, hearing of out of admitting weapon trial court erred from the wom had received his wounds he by Lewis and the bullet removed from fired However, robbed). physi where a he an grounds the defendant on Peo testimony limited information cian’s ple prove custody chain of failed through and examina observation obtained from the time the items were taken into likely tion, less to exclude privilege is they were custody until the time introduced concerning the defendant’s con testimony weapon Lewis evidence. identified readily to or dis is disclosed dition which night at the one on the trial as he fired and is present therefore cernible others robbery. He testified it further Thomas, v. State not confidential. See night was in the same as on the condition aff'd, (1954), 52, 356 U.S. Ariz. robbery. The bullet was admitted 885, (1958) 2 L.Ed.2d 78 S.Ct. through testimony of into evidence De testimony concerning the ex (physician’s Wedge, tective who identified bullet as severely cut hand tent of defendant’s removed from the defendant. one privi bandage was not identification Wedge that he saw the bullet re stated during present sheriff was leged where Blum, body by moved from defendant's acquired information treatment gave him the bullet. who later Under all); State “readily discernible” was cross-examination, Wedge admitted that he (1978) George, 223 Kan. had initialed the bullet but stated that opinion un (physician’s that defendant was identify he from its distinc could bullet alcohol, upon influence of based exami der here tive indentations. The record demon jail, infor privileged was because nation weapon that both re strates not “transmitted to mation so obtained was adequately were identified moved bullet through” present); officers who were sufficiently connected with the crime Broussard, Wash.App. State Fite, E.g., justify admission. (1974) testimony (physician’s con P.2d 1128 (Colo.1981) (bloodstained 761, 767 627 P.2d from cerning removal of bullet identified); Reynolds v. properly mattress by privilege where defendant not barred People, 172 Colo. hospi took him the told the officers who Washington (work sheets); (1970) shot and wanted bullet tal (1965) People, P.2d 735 un and where bullet visible removed *8 (weapon). skin). der the case, in this the Turning to the facts VI. the defendant was record establishes that We next turn to defendant’s con presence police in the of officers treated tention that there was insufficient evidence emergency gunshot He suffered the area. aggravated the two of to submit counts the chest were wounds to arm and robbery jury. prose the He claims the every- to readily apparent to and discernible Furthermore, testimony no evidence that the wal- cution introduced present. the one any money money.” let taken from Lewis contained the light When viewed the any or that it had value. He also asserts prosecution, most favorable to this evi- nothing of that value was taken from But- dence was more adequate than to enable a ler and she not of person the owner reasonable money conclude that anything taken from the motel office. Our presence. was taken from People Butler’s of examination the record Bartowsheski, 235, (Colo. discloses sub- v. 661 P.2d 1983); stantial and sufficient support evidence to Brassfield, 588, 652 P.2d jury’s People Bennett, (Colo.1982). verdict. 183 592 (1973). Colo. Defendant’s assertion that the evi 18-4-301, (1978), dence
Section
failed to
C.R.S.
show Butler owned the mon
provides
ey
person
robbery
that a
commits
taken from the motel is immaterial.
defining
The
they knowingly
“anything
robbery provides
where
take
statute
of
anything of
person
presence
value from
value taken from
person
of an
presence”
“or
threats,
force,
of
other”
the use of
another will suffice.
§ 18-4-301(1),
(1978).
8 C.R.S.
“anything
intimidation. The term
It is
of val
necessary to
ue,”
section,
allege
person
that the
as used
from
this
“includes real
property
whom the
is
tangible
taken was
property,
intangible
the owner
personal
if it sufficiently appears
allega
from the
property,
action,
rights,
contract
choses
tions
accused
services,
was not the
any
owner.
rights
enjoy
of use or
Hampton
v. People,
§
146 Colo.
ment
connected therewith.”
18-1-
P.2d 864
Irrespective of where le
901(3)(r),
The
kind
lies,
gal title
ownership may be properly
of property
robbery
value
taken in a
prose
person
laid
from
physical pos
whose
People,
cution
immaterial. Maes v.
property
session the
was taken.
Id. We
(1972) (defendant’s
prosecution
are also satisfied that the
es
robbery
instruction that
carries
it
a taking
tablished
of
property
“from
petty
lesser included
of
grand
offenses
presence”
of Butler.
improper
theft
because kind and value of
property immaterial).
gravamen
VII.
taking.
offense
the manner of the
argues
The defendant
that the trial
Sterling
People,
151 Colo.
(1962),
refusing
committed
error
denied,
reversible
cert.
373 U.S.
instruct
alibi. The
(1963)(value
defense
S.Ct.
1099
or,
alternative,
complicity
theory,
in
at the
in
instruction for
use
time
the
that
ver-
the
however,
urges,
of trial.10 Defendant
that
designate
dict form
which manner of com-
People
terminology employed
the exact
in
provided
mission of the crime
for
basis
Martin,
v.
776
561 P.2d
jury’s
verdict. Both requests were de-
(1977),
though
should have
even
been used
nied.
at
no alternative instruction was tendered
Ledman,
In People
v.
(Colo.
10.
in
instruction for
with the
en-
instruction
have
People
There,
effect at the time of
can be
in
jury
trial
found
abled the
to find the defendant
on
V.,
(Colo.1981).
v. R.
culpable
“knowingly,"
the less
mental state of
jury
on
was instructed
the elements of com
underlying
the mens
rea
substantive of-
plicity in
same
words
used
Instruction
fense of motor vehicle theft.
Here,
instructed
the
was
court,
was the
certified that the custodian
ag
the crime of
ways
alternative
the two
the
the records. And
committed,
custodian of
legal
and
robbery could
gravated
be
court,
seal,
under
certi-
of that same
clerk
The
must
unanimous.
verdict
be
that their
duly
was
commis-
magistrate
the
fied that
aggravated
requirements for
culpability
sioned,
by
and authorized
law to
qualified,
mutually
alternative,
not
but
robbery are
execute his certification.
any
establishing
exclusive, and evidence
general ver
support a
will
one alternative
contends that because
Defendant
addition,
ample evidence
there was
dict.
Facil
of the Canon Correctional
the warden
on either or both
support a
verdict
custodian,
certify
prison
the
ity
not
did
committing
Accord
offense.
ways
of
duly
not
authenticated.
Exhibit
was
submis
ingly,
that the trial court’s
we hold
validity
was
of the federal records
The
general
acceptance
verdict
of
sion and
trial
questioned
grounds.
on
similar
right
of his
deprive the defendant
did not
judicial
of
fact that
judge took
notice
to a unanimous verdict.
Facility is located
Correctional
Canon
County and he found that
Fremont
X.
Institution was located
Federal Correction
of
alleges a number
next
defendant
magistrate presid
district
where
portion
during the
criminal
errors
habitual
magis
of the
ed. Both
certifications
Ex-
argues
People’s
first
that
He
of trial.
Judge Lundquist
the custodi
and
trate
21, copies
his Colorado and
of
hibits 19 and
legal
are
indeed the
custodians
ans were
records,
“duly
not
au-
prison
were
federal
validity. City
of
presumption
to a
entitled
required by section 16—13—
thenticated”
Court, 184
Springs v. District
Colorado
of
(1983
Both exhibits
Supp.).14
Defendant
HQl
convicting
judgment of the
court
this
cannot be used in a subsequent
criminal
copy
judgment,
manner. A certified
proceeding
punishment
to enhance
under
record,
prison
apart
from the
was offered
the habitual criminal statute. Watkins v.
during
and admitted
the habitual criminal
People, (Colo.1982) (trial
proceeding.
has not at-
explain
failed to
conspiracy
elements of
authenticity
tacked the
of this document.
crime
which was the alleged ob-
*12
But see
ject
purpose
or
of
conspiracy).
XI.
Leonard,
People v.
(Colo.1983)
After
information was
(trial court’s dismissal of habitual criminal
2, 1980,
September
by adding
amended on
disapproved
appeal
counts was
on
where
counts,
prior
felony
alleging
two
convic
pleas
defendant’s
voluntarily
were
and
1976,
in
filed
tions
1971 and
a
made).
understanding^
Federal
convic-
one
criminal
motion to dismiss
habitual
resulting
tions
pleas
from defective
of
involving the
offense of
count15
federal
guilty should likewise not be used in subse-
jumping.16
argued that he had not
bail
He
quent
proceedings
pun-
criminal
to enhance
adequately
and that no factu
been
advised
ishment.
plea
guilty
jumping
al
his
to bail
basis for
providency hearing
established at the
was
begin
examining
by
We
whether
the fed-
by
required
as
Fed.R.Crim.P.
II.17 De
accepted
eral district court which
the de-
fendant contends
the trial court erred in
plea properly
fendant’s
advised him the
of
plea
finding
was
obtained
charge
nature of the
of
jumping.
bail
In
in
of the rule.18
violation
assessing
validity
of the defendant’s
guilty plea,
guided by
provisions
we are
previously
This court has
held that
of Rule 11 of the Federal Rules of
prior
resulting
a
state conviction
from a
Criminal
constitutionally
plea
guilty
plea
defective
of
Procedure
in effect at
the time the
16-13-101(1),
¶5,000
(1983 Supp.)
imprisoned
15. Section
8 C.R.S.
not more than
or
not more
provides:
years,
five
than
or both....
Every person
any
this
convicted in
state
17. If a
attack
a
direct
defendant demon-
felony
penalty pre-
for which the maximum
accepts
strates that a federal district court
a
who,
years
scribed
law exceeds five
within
guilty plea
fully adhering
without
years
ten
of the date of the commission of
11,
procedure provided
for in Rule
the de-
offense,
previously
said
has been twice
con-
plead
McCarthy
fendant is entitled to
anew.
brought
upon charges separately
victed
tried,
459,
States,
United
394 U.S.
89 S.Ct.
arising
separate
and distinct
out
(1969).
purposes
pertinent S.Ct. Thunder, the de 11 was met where Rule Before ac- (c) the Defendant. Advice to the crime of prosecuted for conten- fendant was nolo cepting plea deadly weapon, the trial dere, the defend- must address assault with the court inform open court and if he did willful personally ant asked of, he under- determine that ly, unlawfully him assault Mo knowingly, and stands, following: dangerous ses McBride with Anderson
(1)
charge
to which weapon,
the defendant answered af
the nature
offered,
mandatory
min-
plea
firmatively.
charge
is more
Where the
law, if
provided by
any,
penalty
required.
imum
complicated,
explanation is
more
pro-
possible penalty
and the maximum
States, 508 F.2d
Irizarry
United
by law....
vided
(2d Cir.1974),
charged
the defendant was
possess
conspiracy
and distribute
purpose
II.19
Fed.R.Crim.P.
*13
charge
the
cocaine. That court held that
“to assist
rule is two-fold:
[federal]
identified,”
making
“fully
was never
the district
the constitutional-
judge in
district
explanation
conspiracy
that the defend-
of
required
court’s limited
ly
determination
truly voluntary” and “to
guilty
requirement
not
of
plea
ant’s
did
“meet the
McCar
time
record at the
produce
complete
a
thy that the court determine
defend
relevant to
plea is entered of
factors
‘understanding of
ant’s
the essential ele
’
McCar-
voluntariness determination.”
of
at
ments
the crime ...
394 U.S.
471 [89
459, 465,
States, 394
89
U.S.
thy
965,
United
1173],”
at
508
no
S.Ct.
F.2d at
at
1166, 1170,
(1969).
H03
violating
charged
changes
state
adequate
defendant was
were more than
to estab-
That
held
lish that
on a federal enclave.
law
understood
na-
“[r]eading
asking
jumping.
indictment and
ture
bail
defendant had
whether a
discussed
next consider whether a factu
We
attorney
charge
satisfy
does not
plea
al basis for the
was established. A
Similarly,
McCarthy.”
457 F.2d
judgment
federal court “should
enter a
making
prosecution for
a false and ficti
upon
plea
such
making
without
such in
statement
to a licensed firearms deal
tious
quiry
satisfy
as shall
it that
is a
there
firearm,
buy
order
it was held
er
plea.”
factual basis for the
Fed.R.Crim.P.
accepted
improperly
the trial court
11(f).
rule,
sentencing
Under
“the
reading
guilty plea
simply
after
the indict
judge
develop,
record,
must
on the
[also]
coun
asking
ment to the defendant and
if
as,
the factual
plea,
basis for the
for exam
United
charges.
explained
sel had
ple, by having the accused describe the
Cody,
(8th Cir.1971),
States
438 F.2d
gave
charge.”
conduct
to the
rise
denied, cert.
U.S.
S.Ct.
York,
Santobello v. New
404 U.S.
L.Ed.2d 303
S.Ct.
2. Unlike the child abuse
discussed in
so discrete and
as a
offense
Noble,
(Colo.1981),
matter,
a verdict of
one alternative
charged
of the crime
reasonably
methods
commission
interpreted
could
exclusive
here,
question
part,
"involve
least in
alterna-