Casias v. People, 21140
| Citation | 160 Colo. 152,415 P.2d 344 |
| Decision Date | 06 June 1966 |
| Docket Number | No. 21140,21140 |
| Parties | Raymond CASIAS and Steve O. Casias, Plaintiffs in Error, v. The PEOPLE of the State of Colorado, Defendant in Error. |
| Court | Colorado Supreme Court |
Charles S. Vigil, Denver, for plaintiffs in error.
Duke W. Dunbar, Atty. Gen., Denver, Frank E. Hickey, Deputy Atty. Gen., James W. Creamer, Jr., Asst. Atty. Gen., for defendant in error.
Steve and Raymond Casias were convicted of possessing, and of conspiring to possess, 'a narcotic drug, namely, Dilaudid.' On this writ of error they maintain that the trial court committed reversible error in a number of its rulings. Although not distinctly delineated, we believe that whatever errors are attempted to be asserted are dealt with in this opinion.
On May 9, 1962, several members of the Denver Police Department and of the United States Bureau of Narcotics stopped the automobile operated by Raymond, and in which Steve was the passenger. The Denver police had been notified by federal agents that the brothers Casias were on their way back to Denver from Colorado Springs, and the interception of the automobile resulted from a police 'stake out.'
A warrant for the arrest of Steve had been issued for escape from the Denver County Jail, and a warrant for the arrest of Raymond had been issued for driving with a suspended operator's license. After stopping the automobile and informing the defendants that they were under arrest, a search of their persons was made. A hypodermic needle and an eyedropper were found in Steve's shirt pocket. A 'fireblackened' spoon and cotton wrapped in a newspaper were lying on the front seat of the automobile. Both the eyedropper and the spoon were observed by the police to contain a 'whitish liquid' residue which subsequent chemical analysis revealed to be dilaudid, a derivative of opium.
Defendants urge that the trial court erred in denying their motion to suppress the evidence on the ground that it was obtained in violation of the fundamental constitutional proscription against unreasonable searches and seizures. With this contention we do not agree.
We have held that the person is subject to reasonable search, after a valid arrest, in order to see if he is armed. Gonzales v. People, Colo., 398 P.2d 236; United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653. If contraband or articles the possession of which is illegal are discovered during the course of an otherwise reasonable search, the police are not required to refrain from seizing that material under the penalty that if they do seize it, it cannot be admitted in evidence. Hernandez v. People, 153 Colo. 316, 385 P.2d 996; Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399.
It is undisputed that in this case valid warrants for the arrest of the Casias brothers had been issued and the police were, therefore, justified in stopping the automobile in which they were riding in order to effect their arrest. The needle and eyedropper were discovered pursuant to the legally sanctioned search of the person of Steve, and the spoon and cotton in the newspaper pursuant to the search of the car. The articles seized contained a 'whitish liquid' residue, as mentioned above, and the experience of the arresting officers, some of whom specialized in narcotics cases, made it reasonable for them to assume that the residue on the paraphernalia here in question was, in fact, narcotic. The searches and seizures of the articles were reasonable under these circumstances and the applicable law, and no error was committed by the trial court in denying the motion to suppress.
It is next contended that a plea of former jeopardy as to Steve was improperly denied. Steve had been tried and convicted in Superior Court on a charge of being a disorderly person, the charge arising from the same arest and involving in part the same evidence as that introduced in the instant proceeding. That Steve was Addicted to narcotics formed the basis of such conviction, addiction being designated 'disorderly conduct' under the ordinance. We note that the only authority cited in defendants' brief on this feature of the case is a quotation from a case dealing with a plea of autrefois acquit, obviously distinguishable in that Steve was Convicted in Superior Court. See Harris v. State, 193 Ga. 109, 17 S.E.2d 573, 147 A.L.R. 980, for a lucid and penetrating discussion of the doctrines of former jeopardy, autrefois acquit, and res judicata.
The Constitution of Colorado, Article II, Section 18, prohibits placing a person in jeopardy twice for the 'same offense.' In the case at bar, two distinct offenses are involved, one grounded on addiction and the other on possession. An individual may illegally possess narcotics without being an addict, and an individual may be addicted and subject to legal sanctions without being in possession of narcotics at the same point in time. Since two separate offenses are involved here, the plea of former jeopardy was properly denied. See Hill v. Best, 101 Colo. 243, 72 P.2d 471; 22 C.J.S. Criminal Law § 278(1).
Defendants cite as error the fact that two terms of court elapsed from the term within which the information was filed to the time when they were brought to trial, in violation of C.R.S. 1963, 39--7--12. But the controlling test is fixed by Rule 48(b), Colo.R.Crim.P., which permits trial within one year from the filing of the information. And the defendants were tried before the lapse of the year.
The one year provision sets up a maximum limitation beyond which a defendant shall not be tried for the offense charged, provided the delay was not occasioned by his 'action' or 'request.' We should not be understood as stating that, simply because a trial is held within one year, the defendant is precluded from raising his right to a speedy public trial as embodied in the Constitution of Colorado, Article II, Section 16. A speedy public trial is a relative concept in that the circumstances of each case determine whether it has been afforded. Fundamentally, this is a judicial question. Medina v. People, 154 Colo. 14, 387 P.2d 733, cert. den. 379 U.S. 848, 85 S.Ct. 88, 13 L.Ed. 33; Jordan v. People, 155 Colo, 224, 393 P.2d 745. See also, 34 Rocky Mtn.L.Rev. 1, 97.
The brothers Casias had the burden of proving that an expeditious trial was denied them. Jordan v. People, supra. This burden they failed to meet, and we will not Presume that they were in any wise prejudiced, or that the delay here was arbitrary or oppressive.
Defendants next urge that the evidence was insufficient to sustain either charge. They say that there is no evidence 'of a physical nature' of the illegal possession of narcotics, and that evidence of conspiracy is totally lacking.
It appears that, subsequent to the hearing on the motion to suppress and prior to trial, the evidence seized from the Casias brothers mysteriously disappeared. That the People were unable at the trial to produce this evidence goes only to the relative strength of their case. Various witnesses testified as to the articles seized and to the narcotic nature of the residue on the articles. Instruments used in the commission of a crime need not necessarily be produced at the trial in order to make admissible the testimony of the witness who saw and is able to describe them to the fact finder. State v. Davis, 74 W.Va. 657, 82 S.E. 525.
Similar reasoning applies to the contention that the People's case must fail since they did not introduce into evidence the testing material in which the residue was dissolved in order to ascertain whether it was narcotic. Testimony of an expert is not rendered inadmissible merely because it relates to a small quantity of material which was consumed in the chemical analysis made to ascertain what the material is. Corens v. State, 185 Md. 561, 45 A.2d 340.
It is argued that the narcotic substance was of such minute quantity that the conviction cannot stand. This proposition was answered by this court in Duran v. People, 145 Colo. 563, 360 P.2d 132, wherein we held that '(t)he statute denounces the possession of Any amount of the drug, even 50 milligrams.' (Emphasis supplied.)
With regard to the argument concerning an alleged lack of evidence to sustain the conspiracy conviction, the following quotation from Medina v. People, supra, is controlling:
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