Armstead v. People, 22758
| Decision Date | 24 March 1969 |
| Docket Number | No. 22758,22758 |
| Citation | 452 P.2d 8,168 Colo. 485 |
| Parties | Oscar ARMSTEAD, Jr., Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error. |
| Court | Colorado Supreme Court |
Menin & Harthun, Samuel D. Menin, Denver, for plaintiff in error.
Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., James F. Pamp, Asst. Atty. Gen., Denver, for defendant in error.
In a four count information one Oscar Armstead, Jr., hereinafter referred to as the defendant, was charged with kidnapping, assault to rape, forcible rape and assault with a deadly weapon, namely, a knife. In each of these four counts the victim was designated as one Clara C. Sainz, who hereinafter will be referred to as the prosecutrix.
Upon trial, at the conclusion of all the evidence, the trial court on motion dismissed the count charging assault to rape. The jury thereafter returned verdicts adjudging the defendant guilty of kidnapping and rape, but not guilty of assault with a deadly weapon. Based on these two guilty verdicts, the defendant was then sentenced to concurrent terms in the state penitentiary, and by this writ of error the defendant now seeks reversal of the judgment and sentence thus entered.
In this court the defendant contends that the two convictions suffered by him should be reversed for the following reasons: (1) the People's evidence is said to be so inherently incredible as to be unworthy of belief and hence legally insufficient to support the verdicts returned by the jury; (2) the defendant's constitutional rights were violated in that he did not have the assistance of counsel when he was forced to participate in a so-called police lineup; (3) the several verdicts are repugnant and inconsistent and the not guilty verdict on the charge of assault with a deadly weapon invalidates the guilty verdicts on the charges of kidnapping and rape; (4) the verdicts of the jury were signed by one who though acting as the foreman was in reality not a member of the jury; and (5) the trial judge was prejudiced and by virtue thereof the defendant was denied his constitutional right to a fair trial. Parenthetically, it should be noted that points one, two and three above referred to were set forth in defendant's motion for a new trial, but that points four and five were not mentioned in the motion for new trial. We should also mention that counsel here did not represent the defendant at the trial.
As concerns the count of forcible rape, the defendant was charged with having feloniously and forcibly raped the prosecutrix, against her will, she having resisted and her resistance having been overcome by force and violence. C.R.S.1963, 40--2--25(1)(d). It is to be noted that the degree of rape with which the defendant was charged was that of rape in the first degree. In this regard See C.R.S.1963, 40--2--26, which declares that All cases of rape defined in C.R.S.1963, 40--2--25 as rape in the first degree shall be deemed as carnal knowledge of a female person 'forcibly and against her will.'
Our study of the record convinces us that there is evidence to support the verdict of the jury that the defendant was guilty of forcible rape. Significantly, we note that the argument advanced here by counsel concerning the alleged insufficiency of the evidence is directed almost exclusively to the rape charge, as opposed to the kidnapping charge, about which little or no mention is made. Be that as it may, we now summarize the incriminating evidence brought forward by the People upon trial, as such relates to not only the charge of rape, but kidnapping as well.
The record discloses that in the early hours of September 10, 1966, the prosecutrix, age 20, and her date, one Romero, were snugly ensconced in the front seat of Romero's vehicle which had been parked near the Denver airport. At this particular time and place, by apparent common consent of the parties, a bit of innocent 'necking' was in progress. This nocturnal activity came to an abrupt halt when both suddenly sensed that 'someone' was around at the rear of Romero's car. This third party, aware that his presence had become known, then proceeded to break the right rear window in the Romero vehicle, and he then reached inside the vehicle and proceeded to open the front door on the driver's side. This party next began to pull the prosecutrix from the car and when Romero remonstrated and tried to pull the prosecutrix back into the car, the assailant pointed what was believed to be either a knife or razor at Romero's throat and told him to 'let go.'
As relating to the general issue of force, the prosecutrix related the following sequence of events: she was forcibly pulled out of the car, being dragged over the seat and the broken glass; the assailant then twisted her arm and forced her to accompany him by dragging her to his vehicle which was parked nearby and then threw her into his car; the assailant then drove to a secluded spot some ten or twelve blocks from the abduction scene; and further that during this short ride the prosecutrix out of fright and fear was shaking and screaming and when she threatened to jump from the car, the assailant stated that if she did jump he would 'shoot out her brains'; that her assailant then proceeded to rape her twice and thereafter drove her to a nearby park, where he let her out and quickly drove off.
At trial both the prosecutrix and Romero identified the defendant as the person who kidnapped the prosecutrix from Remero's car and the prosecutrix also went on to identify the defendant as the person who thereafter raped her twice. Both of these identifications could with propriety be characterized as 'positive' identifications, each witness evidencing no doubt but that it was the defendant who was the perpetrator of these several offenses.
Additionally, there was testimony from fingerprint experts which tended not only to corroborate the testimony of the prosecutrix and Romero, but in and of itself also tended to tie the defendant into this entire transaction. One expert stated that he 'lifted' certain prints which he found on the roof of the Romero vehicle immediately over the broken right rear window. After his arrest, which occurred the day after the offense, the defendant's finger and palm prints were taken at police headquarters. Another expert thereafter compared Romero's admitted palm prints with the latent prints taken from the Romero vehicle and this expert then testified that based on his study and comparison it was the defendant's palm prints...
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