Brown v. People, 16516

• Decision Date: 29 October 1951
• Docket Number: No. 16516,16516
• Citation: 124 Colo. 412,238 P.2d 847
• Parties: BROWN v. PEOPLE.
• Court: Colorado Supreme Court

Page 847

238 P.2d 847

124 Colo. 412

BROWN v. PEOPLE.

No. 16516.

Supreme Court of Colorado, en Banc.

Oct. 29, 1951.

Rehearing Denied Nov. 19, 1951.

Isaac Mellman, Denver, for plaintiff in error.

Duke W. Dunbar, Atty. Gen., H. Lawrence Hinkley, Deputy Atty. Gen., Norman H. Comstock, Asst. Atty. Gen., for defendant in error.

CLARK, Justice.

Plaintiff in error will herein be designated as defendant or Brown.

The information, as first filed on November 23, 1948, charged jointly the defendant, Jack Bernard, and Roscoe Sexton with the crime of aggravated robbery at and within the City and County of Denver on the 19th day of October, 1948. On this charge all three were duly arraigned on November 27, 1948, and entered separate pleas of not guilty. January 18, 1949, upon motion and by leave of court, amendment to the information was had by adding thereto second and third counts charging two former convictions of felonies by Bernard; fourth, fifth and sixth counts setting forth three former convictions of felonies by Sexton; adn seventh, eighth and ninth counts of three former convictions of felonies by defendant Brown. February 4, 1949, upon motion and further leave of court, an additional amendment to the information was made by adding thereto a tenth count, wherein Bernard was charged with still another former conviction of felony.

Following adverse rulings on the separate motions of defendants to strike counts two to ten, inclusive, as same applied to them respectively, all three were rearraigned on March 7, 1949, whereupon each defendant, with respect to such of the additional counts as pertained to him, stood mute, and pleas of not guilty as charged, upon each and all of said counts were entered by direction of the court.

April 20, 1949, this defendant, and on the following day Bernard and Sexton, filed separate motions, substantially identical in form, seeking separation for trial. None of said motions were in any way directed to the substantive charge of aggravated robbery set forth in the first count of the information, but in form applied only to those counts that may properly be, and herein are, referred to as the habitual criminal counts two to ten, inclusive. It was recited in the motions that in event of conviction on the substantive charge, the habitual criminal counts all would have to be submitted to the same jury, and that this could not be done without prejudice to each respective defendant, if all were presented together and without separation for trial. April 24, 1949, following arguments thereon, all of said motions were denied.

Trial of the three defendants jointly began on the substantive charge contained in the first count of the information on April 26 and was concluded April 28th, 1949, resulting in separate verdicts of the jury finding each of the defendants guilty of aggravated robbery as charged. Thereupon the court directed that, with respect to the habitual criminal counts, the trial should further proceed separately as to each defendant upon the counts pertaining to such defendant only, before the same jury, and as a safe, though unnecessary, precaution had the jury resworn. Also, the privilege of further voir dire examination of or exercise of challenge of jurors, or any thereof, was denied by the court.

Proceeding in the manner aforesaid, on the following day, the hearings were resumed before the same jury taking each defendant separately upon the habitual criminal counts pertaining to him alone. These proceedings, in each instance, resulted in verdicts finding each defendant indentical to the person referred to in each of the three counts pertaining to the said defendants respectively. Thereafter, and following the filing and denial of motions for new trial, judgments imposing life sentences upon each of said defendants were entered, to review which, separate writs of error were sued out in this court based, however, by leave first had, on one consolidated and complete record. Thus far, our remarks include the general situation appertaining at the time of, and before, trial as to all three defendants. Our further comments will be confined to the case of Brown.

We shall not undertake to treat separately each of the twenty-six alleged errors here assigned, but shall attempt to cover all thereof in the following general discussion in order of progression of trial proceedings.

1. Any uncertainty previously existing as to the right of the district attorney to file amendments to an information in a case of the nature of this proceeding, was definitely set at rest by our decision in Wolff v. People, 123 Colo. ----, 230 P.2d 581, 585, where we said: 'The amendments were made long before the trial of the case and the defendant was not in any manner prejudiced by the changes permitted in the wording of said counts.'

Such was the situation here as to the time element involved, and no prejudice could have resulted from the amendment to the information by the inclusion of pertinent additional counts where ample time for preparation for trial was afforded. The factual situation in Smalley v. People, 96 Colo. 361, 43 P.2d 385, is so completely different from the facts in the matter now before us as to render the decision therein wholly inapplicable to the present proceeding.

2. Did the refusal of the trial court to grant defendant's motion for separate trial constitute error requiring reversal of the judgment? Definitely, the answer is in the negative. Throughout his argument relating to assignments of error directed to the receipt of evidence over defendant's objections, hereinafter further discussed, counsel for defendant reiterates, that because thereof, there appears other and further reasons why the court should have ordered severance and he contends that same constitutes error. With respect to all such matters the trial court, at the time of argument upon the motion for severance, was wholly unadvised. They were not set forth in the motion, nor in any affidavit thereto attached. No showing thereon was made in any manner, the motion being in language similar to that of the statute, § 484, c. 48, '35 C.S.A. 'that there is evidence which does not relate to the reputation of the other defendants, which will be admissible as to such defendants if tried separately, but would be inadmissible as to this defendant if tried alone.' As to all such items, the application for severance was manifestly inadequate and insufficient and no error resulted from its denial. Robinson v. People, 76 Colo. 416, 419, 232 P. 672; Garcia v. People, 88 Colo. 267, 295 P. 491; Kolkman v. People, 89 Colo. 8, 12, 300 P. 575.

From a study of the record it is clear that when the motion for severance was prepared and filed, as well as when argued before the trial court, reliance was had upon the circumstance that in the event of conviction of all of the defendants upon the principal charge, further proceedings upon the habitual criminal counts necessarily would have to be before the same jury. ' 45 S.L., page 311, chapter 114, section 3. Such has now become the settled and well-established procedure, the history of its background and development being fully detailed in Wolff v. People, supra. Had the court proceeded on the habitual criminal counts by hearing all nine thereof against all three defendants at one and the same time, commingled and together, it is certain that defendant would be here vigorously alleging error on that account. That was the very situation that counsel by motion sought to avoid. It was that which, following conviction of defendants on the principal charge, the court, by adopting the procedure above stated, did avoid. Therefore, the point of the whole objection comes down to the one question: Did reversible error result from determination of identity on the habitual...