Altobella v. People
| Citation | 161 Colo. 177,420 P.2d 832 |
| Decision Date | 05 December 1966 |
| Docket Number | No. 21107,21107 |
| Parties | Donald E. ALTOBELLA, Plaintiff in Error, v. PEOPLE of the State of Colorado, Defendant in Error. |
| Court | Supreme Court of Colorado |
George M. Graber, Arvada, for plaintiff in error.
Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., Robert C. Miller, Asst. Atty. Gen., State of Colorado, for defendant in error.
The nature of the alleged errors sttributed to the trial court makes necessary a detailed chronology of the proceedings below.
On October 19, 1961 an information was filed in the District Court of Jefferson County charging defendants William D. Gottfried and Donald E. Altobella with burglary, larceny and conspiracy to commit burglary. On October 30, 1961 both defendants entered pleas of not guilty to all charges.
Trial was set for May 8, 1962. On that date defendants' counsel of record moved to withdraw as counsel for defendant Altobella, who had been released from custody on bail, for the reason that he was unable to contact Altogella for trial preparation. The court permitted him to withdraw. The trial date was vacated and the matter continued to May 14, 1962 for resetting, at which time it was again continued for resetting to January 2, 1963. On this date co-defendant Gottfried withdrew his plea of not guilty to the charge of burglary and entered a plea of guilty, after which upon motion of the district attorney the court dismissed the other two counts of larceny and conspiracy to commit burglary. On February 14, 1963 the court sentenced Gottfried to a term of not less than six nor more than eight years in the State Penitentiary at Canon City.
On January 2, 1963 a second attorney entered his appearance for defendant Altobella whose trial was then set for April 16, 1963. In early April the district attorney was advised on three occasions by defendant's second attorney that he was unable to locate or contact defendant. Neither defendant nor his attorney appeared for trial on April 16, 1963. The attorney was held in contempt of court, defendant's bond was forfeited, and instructions were given to the sheriff to arrest and hold defendant in custody. The matter was continued to April 22 at which time defendant and his attorney appeared. The attorney advised the court that he had been able to see defendant only once since January 2, 1963; that defendant had not cooperated; and that he could not represent defendant under such circumstances. He asked leave of court to withdraw. The court permitted the withdrawal, and then fixed defendant's bond at $100,000.
On May 8, 1963 defendant and his third attorney appeared and moved the court to reduce the $100,000 bond, which motion was denied by the court. The case was then set for trial to a jury on October 3, 1963. Again, on August 2, 1963, defendant moved, by a fourth attorney appearing specially, to reduce the bond, which motion was also denied. Thereafter this court in an original proceeding entitled Altobella v. District Court, 153 Colo. 143, 385 P.2d 663, ordered that defendant's bond be reduced to $7,500. This new bond was made returnable at the trial theretofore set for October 3, 1963.
On October 3, 1963 defendant and the fourth attorney, again appearing specially, filed a Motion for Vacation of Trial Setting and for Change of Judge supported by affidavits of defendant, of one Eugene Deikman, an attorney at law, and of one Michael Conjanus Holslaw, a senior law student. Defendant's third attorney was also present and asked leave to withdraw for lack of cooperation on defendant's part. This was permitted by the court. The trial date was again vacated and the matter continued to October 7, 1963 for resetting. The court found that the delay was caused by the defendant, held him in contempt of court, and sentenced him to ninety days in the county jail. Defendant was denied bond pending his appeal on the contempt charge. In another original proceeding entitled Altobella v. Priest, 153 Colo. 309, 385 P.2d 585, this court vacated, set aside and held for naught the judgment of contempt and the sentence imposed thereon.
On October 7, 1963 defendant's fifth attorney entered his appearance and the case was continued to October 21, 1963 for resetting for trial. On that date defendant and his attorney appeared and the case was set for a jury trial on October 29, 1963 over the objection of defendant.
On October 29, 1963 defendant submitted another Motion for Vacation of Trial Setting, for Change of Judge and for Change of Venue. This motion was not supported by affidavits but referred to the previous affidavits insupport of the first motion for disqualification heard October 3, 1963. The motion was denied.
The case finally proceeded to trial on October 28, 1963 and the jury found Altobella guilty on all three counts of burglary, larceny and conspiracy to commit burglary. Defendant's motion for new trial was denied by the court and after presentence investigation defendant was sentenced to concurrent terms of six to eight years on each count of burglary and conspiracy to commit burglary, and to an additional consecutive term of six to eight years on the count of larceny.
A resume of the evidence showed that while deputy sheriff Fryberger was on a routine patrol in the early morning hours of October 13, 1961, he observed that the Tally Ho Lounge located at 7655 West Alameda Avenue, Jefferson County, had been broken into throught a rear window. The officer radioed for help and in response Officer Petrett arrived. Fryberger then noticed that the front door of the building, which he had previously observed to be closed, had been kicked out. A radio alarm was given and an immediate search of the surrounding area was begun.
Officer Heinrich observed a 1953 Pontiac traveling fairly fast westward on Alameda, in which Gottfried was the driver and Altobella the passenger. He pursued the automobile with spotlight shining in the rear of the Pontiac for about a block and when it would not stop used his red light and siren, pursuing the car some distance until it finally did stop. Officer Heinrich approached the left side asking Gottfried for his license. As Gottfried pulled out his license the officer noticed blood on his hand. The officer then pulled his revolver and directed both men to place their hands behind their necks and to get out on the left side of the car. They refused to do so and a second order was given which was also disobeyed. Heinrich then cocked his revolver and a third time ordered them out and they complied. Two other officers then arrived at the scene. Gottfried and Altobella were then searched and blood was observed on the hands of both men. The car was searched and a loaded pistol was found on the passenger side of the front seat and a briefcase on the floor. This briefcase contained two crowbars, chisels, a screwdriver, pliers, a hammer, and many pouches and sacks containing $2,480.62 in coins, currency and checks. The pouches, sacks and money were identified by Joe Barone, manager and part owner of the Tally Ho Lounge, as the property of the Tally Ho Lounge which he had placed in the safe earlier that morning prior to closing. In addition, a torn $5 bill was found on the person of Altobella, which Barone identified as having been given to him by a lady customer the day before.
After their arrest, Gottfried and Altobella were returned to the Tally Ho Lounge where the investigation was completed. Altobella there apologized to Joe Barone for the break-in, saying he liked the place and was sorry he had to knock it off.
Defendant Altobella did not offer any evidence at the trial.
Defendant alleges four errors as grounds for reversal:
Discussing these contentions in the order asserted, defendant's first alleged error is without merit. The recent case of Bradley v. People, Colo., 403 P.2d 876, is determinative of this contention, wherein it is stated:
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