People v. Smith, 597 P.2d 204

People v. Smith

597 P.2d 204

Colo.

1979

Check Treatment

*1 an individual is taken into or custody otherwise of his deprived “[W]hen freedom the authorities in any significant way and is subjected ques- tioning, the privilege against self-incrimination is jeopardized.” Miranda Arizona, supra. making this determination the objective test should be applied, “[I]n is, whether under the circumstances a reasonable man would believe him- self to be of his freedom in deprived any significant way.” People Algien, supra.

We have also stated that “resolution of this turns on believed that reasonably was not free to [the defendant] [he] leave” the Parada, presence authorities. People 533 P.2d 1121 (1975). The defendant’s license was taken Offi drivers cer Forgay, he was instructed each, to remain'in a particular place, itself, a significant of his deprivation liberty. trial court found that the that, defendant reasonably circumstances, believed under the he was not such, free to leave if he wished. As Forgay’s questioning of defendant was “custodial interrogation” Arizona, purposes Miranda v. supra, and in the absence of prior Miranda warnings, defendant’s answer to For- gay’s question properly suppressed.

Accordingly, ruling the trial court on the motion to suppress affirmed.

No. 28449 the State of Colorado v. A. George (597 204) July Decided 1979. Rehearing July 1979. *2 General, Robbins, W. MacFarlane, David Deputy, J. D. Attorney Assistant, General, Morris, Donovan, Solicitor William Edward G. plaintiff-appellee. Truman, Defender, Walta, Craig L. Chief State Public Gregory

J. Heher, Deputy, defendant-appellant. Michael Deputy, En Banc.

MR., Court. delivered the opinion JUSTICE GROVES on by jury charges first-degree

Smith his convictions appeals per- 18-8-502, 1973), (sec- commit C.R.S. jury (section conspiracy perjury 18-2-201, with witness 18-8- 1973), (section tion C.R.S. tampering 605, C.R.S. We affirm in and reverse in 1973). part part. Carmack, Motors, Durango,

Rowland co-owner Carmack Colo- rado, brought a civil action LaPlata to recover a County At Smith and John testified they together tractor. Burnite were on 1975 and that Smith January gave at Carmack Motors then Row- Carmack, land Carmack a cash for the tractor. Rowland payment having brother and several of their seen Smith or Bur- employees nite at the store on 14 and testified January that the receipt produced by Smith had been on a typewriter different than that used at Carmack typed Motors. Carmack Motors in the action. prevailed forth, charged, Smith was

Subsequently, above set with perjury, to commit conspiracy with a witness. At a tampering prelimi- *3 nary hearing, Burnite recanted the he had the civil ac- tion. Burnite stated that Smith receipt had shown him the and told him corroborating that he wanted because testimony regarding payment feared that a prior felony conviction would vitiate his credibility. Burnite said he agreed to corroborate Smith’s testimony, though even Burnite had 14th, not Smith to Carmack on accompanied January Motors because on Smith down his luck and needed the tractor to make a living. Smith’s attorney cross-examined Burnite. trial,

Prior to Burnite died. Over objection, Smith’s the district court admitted a of Burnite’s into evi- trial, statute, dence. At did judge, pursuant not submit the question of to the materiality jury.

I. Smith challenges the constitutionality of section 18-8-501(1), (now C.R.S. 1973 Vol. on Repl. 8) that ground it improperly renders the first-degree element of in a materiality charge a ques the judge, tion for not the jury. This violates his allegedly constitutional a right jury trial on every element of the offense.

The statute reads: false ‘“Materially statement’ means false . any statement . . which could have affected the or course outcome of an official or the ac- proceeding, servant, tion or decision of a or public of a performance government function. Whether a is material in a given falsification factual situation is a question law." added). Section (Emphasis 18-8-501(1), of C.R.S. 1973. statute,

Pursuant the district court instructed the as follows: jury “Whether a falsification is in given material factual is situation a ques- tion of law. The material, court has found that alleged statement was you are not to consider that question.” Colorado case law making instruction conform to jury The statute and court. Marrs v. People, 135 Colo. of law for the materiality question 32, 40 P.2d 233 Treece 96 People, 458, (1957); 312 P.2d 505 jurisdictions A of state and federal (1934). majority adopted 62 A.L.R.2d 1027. rule. See generally same to cite which would buttress his claim that any authority

Smith fails is unconstitutional. He refers to cases which only champion the statute to a trial. Our attention has not been called to cases which right jury any element, law, of fact or be indicate that whether a must every question Smith advances runs contra to the tra- to the submitted jury. theory ditional of facts and the issue of the submitting only questions practice Oaks People, of witnesses to the 150 Colo. credibility jury. 443 (1962); Gallegos People, 136 Colo. 316 P.2d 884 Gonzales v. 264 P.2d 508 People,

(1957); (1953). Although courts in a submit the minority jurisdictions materiality jury, right constitutional to a trial does not jury See, Perna, such a example, People compel practice. Div. App. 2d 246 N.Y.S.2d 920 Section C.R.S. 18-8-501(1), 1973 is constitutional and the instruction based the statute was upon proper.

II. that the district did argues court apply appropriate burden of when whether Smith’s proof considering statements were mate- rial, and thus denied him his to have element of the every charges a reasonable proved beyond doubt. The basis of Smith’s contention is the following ruling:

“Now, think, evidence. proof I materiality, supported by evidence and be drawn are inferences therefrom sufficient *4 the support proof materiality the perjury testimony. The evi- of of case, dence was that the evidence in the that the defendant allegedly claimed that he went to the Carmack Motors and this bill and paid re- it, evidence, ceived a for which is in receipt and it is obvious to the Court that the John Burnite that testimony by him at that time accompanied is material. And the Court so rules.” (171-172 added). Emphasis Smith reads the statement to mean judge that the district a employed standard of sufficiency rather than the correct standard of a proof beyond reasonable doubt. We disagree.

The trial finding court’s was sufficient to meet the a rea beyond sonable doubt standard. The language of instruction No. 4 also indi cates that the judge had the standard in mind. The proper instruction reads in part:

“If, evidence, after considering all of the find that the has you prosecution established a beyond reasonable doubt that the defendant A. George Smith, acted in such a manner so as to all of the satisfy above elements at information, or about the date and stated in place the should find the you 124 the .

defendant in first . . .” guilty degree Moreover, the reading a of the record district court’s As a supports ruling. of law the evidence proved materiality matter of Smith’s statements Onorato, See a reasonable doubt. beyond App. P.2d 898 III. Smith’s third raises an issue first objection important impression viz., Colorado, admission of Burnite’s prelimi- nary violated the hearing testimony hearsay Smith his by Colo. Const. right against guaranteed confront witnesses him as II, Art. 16 and the Sixth and Fourteenth Amendments the United § We on the States Constitution. resolve this issue basis of Smith’s constitu- argument.1 tional no question permits easy resolution since the contentions of each In

side merit. of its support position, people point necessity and the fact that it bears indicia of important reliability, viz., it concerns same issue and was at judicial under oath a pro- at which ceeding Smith was utilized present to cross- hand, examine. On the other Smith maintains that state and federal guarantee constitutions a more searching for cross- examination than be provided Colorado. The state’s concern to obtain the evidence when necessary convictions witness has key become unavailable competes with the in- defendant’s all sistence upon constitutionally guaranteed safeguards regarding the of evidence. presentation Barber v. Page, 390 U.S. 20 L.Ed.2d 255

(1968), Supreme Court noted the general acceptability judicial from previous in which proceedings cross-examination occurred when the witness has become unavailable:

“It is true there that has an been traditionally confronta- exception tion where a requirement witness unavailable and has given testimony at previous proceedings the same defendant which was sub- ject cross-examination E.g., Mattox v. United that defendant. States, (witnesses who testified supra original trial died prior to second This trial). has been exception arising explained necessity and has been justified ground on the the right of cross-examination afforded initially provides substantial behind the confrontation requirement. See 1395-1396, Evidence Wigmore, §§ McCormick, C. (3d 1940); ed Evidence (1954).” §§ *5 1 Although we do not reach the claim, we note served hearsay by hearsay and the to confront witnesses adverse Thus much of the discussion substantially. overlap to both claims. pertains

125 F.R.E. 804(b)(1) for the admission of provides from a testimony hearing when the witness is unavailable to at trial and testify there was a similar motive to develop testimony.2 general

This modification practice requires according to the nature of the prior proceeding. from a Clearly, transcripts previ ous trial no basis provide objection since the defendant presumably has received the full and substantive panoply procedural protections. applicability exception transcripts preliminary is a more hearings difficult question, resolution of which depends upon states, the nature of the California, In some proceeding. such as the pre Green, liminary hearing constitutes a mini-trial. See v. 399 California 149, 1930, Colorado, U.S. 26 L.Ed.2d 489 In it is limited Court, to a determination of probable cause. Hunter v. District 543 P.2d 1265 (1975). Crim. P. 7(h)(3) governs the conduct of such hearings Colorado:

“The defendant shall not be called at the upon plead hear- ing, although cross-examine may witnesses him against and may intro- duce evidence in his own behalf. The officer shall prosecuting have the burden of establishing probable cause. The presiding judge at the prelimi- nary hearing may the rules of temper evidence in the exercise of sound ju- dicial discretion.”

In light of the hearing’s limited screening purpose, evidentiary proce- relaxed, dural rules are so that for example, hearsay testimony is admissible, although hearsay alone may suffice if more tes- competent Court, available. McDonald timony District 195 Colo. Treat, (1978); 193 Colo. 568 P.2d 473 (1977); Court,

Hunter District Moreover, supra. the right to cross-examine and to introduce evidence bemay curtailed as to matters to a unnecessary Court, determination of McDonald v. District cause. probable supra. Sullivan, Rex 575 P.2d 408 (1978), this court said: “A defendant has no constitutional right to unrestricted confrontation of witnesses and to introduce evidence at a rule, hearing. By de- fendants have the right to a preliminary hearing under certain circum- stances, and pursuant the rule a defendant cross-examine ‘may wit- nesses him against introduce evidence in his own behalf.’ Crim. However, P. 7(h)(3). the preliminary hearing is not intended to be a mini- 804(b)(1) F.R.E. reads: “(b) Hearsay exceptions. following are hearsay not excluded rule if the declarant is un- available as a witness: “(1) testimony. Testimony given Former as a witness at another of the same or a different proceeding, deposition or in a taken in with law in the course of the same or another proceeding, party offered, if or, whom the proceed- is now in a civil action or interest, ing, predecessor had an develop and similar motive to direct, cross, or redirect examination.” *6 effect discovery. E.g., the defendant an to or to afford

trial Treat, Its is to 568 P.2d 473 purpose People allowing is unwarranted an im- by out cases in which prosecution screen to believe that whether there is cause probable to determine judge partial been committed the defendant. by crime have charged may the Treat, Quinn, (1973).” 516 P.2d 420 supra; People make a deter we have held that the not judge may

In particular, is of witnesses unless the incredi credibility testimony mination as Court, v. District motive supra. Consequently, ble. Hunter same to exists at a trial is not as to witnesses’ which credibility present inquire The of issues at trial contrasts hearing. multiplicity at the preliminary of the In view of the single hearing. concern sharply preliminary counsel would not have the same motive variance, cross-examine as at cause, If the matter did not relate to counsel also would not probable trial. evidence or cross-examine. present admitted here illustrates the Burnite testi- difficulty. The transcript reason to corroborate agreed fied that one Smith’s testimony Smith feared that a conviction would undermine his credibil- felony prior Counsel did not cross-examine as to this statement. Nor ity. prejudicial did counsel as to Burnite’s an issue extensively credibility, inquire ripe trial since he was recanting under oath. exploration testimony In view of the limited of the hearing Colo scope preliminary rado, II, we rule that Colo. Const. Art. the admission of precludes § of a at a trial when the wit transcript subsequent has become unavailable. See State sought ness whose is Roberts, 55 Ohio St. 2d 378 N.E.2d 492 (1978).

We do not have before us a situation in which the defendant caused available; witness to be and we do not this pass upon question.

IV. above, In light of the conclusion reached in III we do not reach part allegation Smith’s final of error that the admission of Burnite’s hearsay evidence Smith’s regarding conviction without a prior felony proper limit- instruction constituted error. ing prejudicial

We and judgment vacate remand for a new trial.

MR. JUSTICE ROVIRA concurs in and dissents in part part. MR. JUSTICE ROVIRA concurring part dissenting part. I concur in Parts I II of the Court’s but dissent to Part opinion, III. has laid down an absolute rule of no majority admitting excep- II,

tions when it concludes that Colo. Const. Art. Sec. prohibits of a admission at a preliminary hearing subsequent have become unavailable. sought when the witnesses whose occur, as events which or what mis- may It’s not us speculate arise view. It is not inconceiv- adoption majority chief may un- hearing, able that the of a witness at the who is trial, available at time be desired the defendant. my

stated Brother Groves that testi- might preclude acceptance *7 mony.

Mr. Justice White stated a correct resolution the matter Green, 399 U.S. S.Ct. 26 L.Ed.2d 489: California “We also think that Porter’s preliminary hearing was admissible as far as the Constitution is concerned from the wholly apart had an effective respondent for confrontation at the opportunity trial. For Porter’s statement at subsequent had al- been under ready circumstances closely those that approximating oath; surround the trial. Porter typical was under respondent repre- — sented counsel the same counsel fact who later him represented trial; at had respondent to cross-examine as every opportunity Porter statement; and the were conducted before a tri- proceedings bunal, a judicial record of equipped provide Under hearings. these circumstances, would, think, Porter’s statement we have been admissible unavailable, at even Porter’s absence if Porter had been actually despite good-faith case, efforts of State to being him. That produce dowe not think a different result should follow where witness is actu- ally produced. . .

“. If Porter unavailable, had died or was otherwise [the witness] Confrontation Clause would not have been by admitting violated his testi- — mony given the preliminary hearing cross-examination then afforded provides substantial behind the confrontation requirement, long as the give declarant’s inability live is in no the fault of the way State.” view, my defendant’s rights constitutional are not abridged by the introduction at trial of preliminary hearing where the de- fendant had the at the hearing to confront cross-examine the witness foundation proper has been laid concern- See, Texas, the absence of the witness. Pointer State e.g., ing U.S. 923 (1965). L.Ed.2d