Baca v. People

• Decision Date: 16 March 1959
• Docket Number: No. 18697,18697
• Citation: 336 P.2d 712,139 Colo. 111
• Parties: Robert Dennis BACA, Plaintiff in Error, v. PEOPLE of the State of Colorado, Defendant in Error.
• Court: Colorado Supreme Court

Page 712

336 P.2d 712

139 Colo. 111

Robert Dennis BACA, Plaintiff in Error, v.PEOPLE of the State of Colorado, Defendant in Error.

No. 18697.

Supreme Court of Colorado, En Banc.

March 16, 1959.

Rehearing Denied April 6, 1959.

Walter L. Gerash, Denver, for plaintiff in error.Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., and John W. Patterson, Asst. Atty. Gen., for defendant in error.

DOYLE, Justice.

Plaintiff in error, defendant in the district court, seeks reversal of a conviction of burglary and conspiracy to commit burglary upon which was pronounced a sentence of six to ten years in the State Penitentiary.

Defendant, together with one James Ferguson, was charged with the burglary of the PFAB Prescription pharmacy at 5190 West Colfax Avenue in Denver.He was apprehended inside the store on the morning of February 11, 1957 at 1:00 A.M. Entry had been gained by hammering a hole through the wall from an adjoining building.Brick and mortar dust on the clothing of the defendant attested to the fact that he had entered in this manner.Also found at the scene was a small bag containing articles which had been removed from the store, and gloves and two hammers which apparently had been used for the purpose of knocking out the bricks.

When the officers arrested the defendanthe was inside the store and had been hiding behind a counter.Lying under this counter, which was normally used for wrapping packages, on a shelf was a 38 calibre Smith and Wesson revolver fully loaded.Defendant was questioned by the arresting officer as to what he had been doing in the durg store and he said 'What drug store?' and 'I wasn't in any drug store.'

Two points are raised by the defendant on this review.They are paraphrased and summarized as follows:

1.That the trial court erred in refusing to grant a continuance in view of the fact that a conflict between the defendant and his attorney arose and was brought to the attention of the trial court.Defendant argues that this ruling was contrary to law and to Article II, Sections 16and25 of the Colorado Constitution and to the Fourteenth Amendment of the Constitution of the United States.

2.That the trial court erred in admitting People's Exhibit C, the pistol.Defendant contends that this exhibit was immaterial and highly inflammatory.

1.The trial court's denial of the motion for continuance.

The conflict between the defendant and his counsel arose because of the recommendation of the latter that defendant plead guilty.This occurred on October 31, 1957, the day on which the case had been set for trial.The following transpired:

'Mr. Buckles: May it please the Court, the defendant's attorney is ready for trial.

'The Court: Mr. Garcia, Mr. Buckles indicated that you wanted to make some statement to the Court.You may do that.

'The Defendant: I am not ready for trial.

'The Court: And why is that?

'The Defendant: Well, Mr. Buckles and I talked last night to some extent and he feels that I am guilty of the charge, which I am not, and he wants to go to trial; we just couldn't come to an agreement.He wants me to plead guilty and I don't think I should.I have sufficient funds to obtain another counsel, and I think it would be best for me if I did.

'Mr. Buckles: May it please the Court, in view of his statement, I would like to make a statement into the record.In this instance I represented the co-defendant named James Franklin Ferguson, Jr. I have become well acquainted with the facts and circumstances surrounding the alleged felony commission, and in view of the overwhelming amount of evidence that I feel that the State is prepared to present and the utter lack of defense which is available to this charge, I have advised the defendant that in my opinion a plea of guilty should be entered.I have further advised the defendant that I am more that willing to represent him to the limit of my capacities; however, I do not know what type of defense is available to me.Now, that is where I stand, your Honor, and I am perfectly willing to go ahead with the trial.

'The Court: All right.Let me check this record before I rule on your request, Mr. Garcia.I want to review the record briefly.This case was filed in this court on February 13th; it charges an offense occurring on February 10th.These dates are all this year.There were two defendants, Ferguson and Garcia; they were initially arraigned on February 21, at which time each defendant pleaded not guilty; thereafter, motions were heard on the 25th regarding bail; the case was originally set for trial on April 11th.Now, unless I have this case mixed up with some other one, and I think I do not, the defendants were not ready on several occasions for trial because Ferguson, I think it was, was in the hospital.

'Mr. Buckles: That is correct, your Honor.

'The Court: On the 11th of April it was set over until the----

'Mr. Buckles: Until the 25th, your Honor, for resetting.

'The Court: All right, the 25th of April for resetting.On April 25th it was set over to June 25th for trial or disposition; on June 25th it was set for trial on September 11th, and again we were waiting for Ferguson to get well.Now, September 11th was a hard, fast, firm trial date.I was advised two days prior to the 11th, I think it was, by Mr. Buckles that the defendants and each of them were going to plead guilty.On September 11th Ferguson did plead guilty and Mr. Garcia, as he had a perfect right to do, made a last-minute switch and said he didn't want to plead guilty, he didn't think he was guilty.Mr. Buckles indicated--I thought he went beyond what he had to do--he offered, I believe, to return a substantial part of the fee and to withdraw from the case, but we set it over two weeks to the--we set it over twice: on September 11th we set it over to the 18th of September, from the 18th over to the 30th for resetting, and it was agreed that Mr. Buckles would stay in the case and represent the defendant.It was set for trial then on this date.

'Now, Mr. Garcia, I have a delicate decision to make, but I am going to deny your request.I think you are playing fast and loose with the Court and its calendar.You had plenty of time to get other counsel----

'The Defendant: No, sir.I didn't have funds before.I told you that before.

'The Court: Here we are again, all the witnesses here, the jury panel ready, and as far as I am concerned the defendant desires another delaying action.For better or for worse, I am denying your request and we are proceeding to trial.

'The record will contain your statement, Mr. Garcia.I think you are abusing the Court, playing fast and loose with the Court.

'The Defendant: No, sir.I don't mean to.

'The Court: You are entitled to your view, and I believe that I am entitled to mine, and that is mine.

'Mr. Buckless: Your Honor, for the record I would like to state that I shall do my utmost in his defense, and I have no personal animosity toward the defendant.I am in a fairly delicate position, I think, in this matter.'

The granting or denial of a motion for a continuance is a matter resting within the sound discretion of the trial court, and a ruling thereon will not be disturbed absent a showing of abuse of that discretion.Harris v. Municipal Court of City and County of Denver, 123 Colo. 539, 234 P.2d 1055, Honda v. People, 111 Colo 279, 141 P.2d 178.The trial court was here justified in denying the request.The period from February 13, the date of filing, until October 31, 1957 provided defendant ample...