Cheatwood v. People
| Decision Date | 11 December 1967 |
| Docket Number | No. 22110,22110 |
| Citation | 164 Colo. 334,435 P.2d 402 |
| Parties | Thomas D. CHEATWOOD, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error. |
| Court | Colorado Supreme Court |
William F. Reynard, Denver, for plaintiff in error.
Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., John P. Moore, Asst. Atty. Gen., for defendant in error.
This writ of error concerns an alleged abuse of discretion by the trial court when it denied Thomas D. Cheatwood's Amended Motion for a New Trial on the basis of newly discovered evidence. We shall refer to Cheatwood by name or as the defendant.
The record discloses that defendant, an indigent, alcoholic resident of Denver, was charged under C.R.S. '53, 40--10--1 on December 12, 1963, in an Information with having committed the felony of confidence games. In this connection we note that the People's evidence adduced at the trial was that he had obtained the sum of $98.63 when he endorsed and cashed a no account check at the Prinster Brothers City Market in Glenwood Springs. In any event, the trial court appointed an attorney to represent the defendant who, at all times, has vigorously protested his innocence. Following his plea of not guilty in a trial to a jury, he was convicted and on March 3, 1964 he was sentenced to the state penitentiary for a term of from 10 to 15 years. He apparently has been so incarcerated ever since.
Following sentence, and within 15 days thereafter, defendant attempted pro se by three separate petitions to secure a free transcript in order to appeal. All of these petitions were denied because no motion for a new trial had been filed and 'no writ of error had been issued.'
Subsequently defendant pro se sought further relief in the trial court by way of a Motion for a New Trial and later with new counsel by way of an Amended Motion for a New Trial. His motion was based on purported newly discovered evidence and was accompanied by an affidavit of Nathaniel Palmer, a fellow penitentiary inmate. The gist of this instrument was that Palmer had confessed to Cheatwood in confinement that he had obtained defendant's identification (a driver's license) while defendant was drinking in a Denver bar, and had replaced the photo of Cheatwood with his own. Subsequently Palmer averred that he had passed a series of checks using defendant's name and driver's license, including one at the City Market in Glenwood Springs. He further asserted that the check protector used by him was in the possession of the Sheriff's Department at Grand Junction, Colorado and the typewriter used to type the checks was in his possession in his prison cell. Finally he averred that defendant had no knowledge of the fact that he, Palmer, had Cheatwood's identification or that he had used it to pass checks.
When present counsel began his representation, and before he filed his Amended Motion, his investigation revealed that there was apparent substance to Palmer's confession. For example, he found that Prior to defendant's trial defendant had been arrested and held in the Adams County jail on a similar charge and that that Sheriff had sent two checks purportedly endorsed and cashed by defendant to the Federal Bureau of Investigation in Washington. The report which came back dated January 2, 1964, consisted of three pages and stated in pertinent part:
'Result of examination:
'This report confirms and supplements this Bureau's telegram to your office dated 12/10/63.
Part of this exhibit shows that copies of the F.B.I. Report also had been sent by registered airmail to the 'Chief of Police Longmont, Colorado' and to 'Sheriff of Garfield County Glenwood Springs, Colorado.'
At this point it is well to note that the trial transcript in the record discloses other pertinent facts which were of course within the knowledge of the trial court when it ruled on the Motion in question. For example, two checks were introduced into evidence at the trial, the second one being from a purportedly similar offense in another grocery store in Rifle, Colorado. We also find that the defense presented consisted of defendant's testimony as to his whereabouts in Denver at the time of the offense, samples of his handwriting as written for the jury during the trial, his testimony as to his loss of his driver's license, his two prior non-related felony convictions and his wasted life as an alcoholic in what might be termed Denver's Skid Row area. A Denver barmaid and long-time friend testified that defendant had written her often and she knew his signature. She opined he had not endorsed the two checks. Even Undersheriff Leslie J. Eccher testified for defendant that the Garfield County Sheriff's Office was not able to identify the endorsements in question as having been made by Cheatwood.
Weighed against defendant's evidence was the positive identification of defendant by assistant store manager De Von James Schroder in Glenwood Springs and Marjorie Bishop, the checker at the Rifle store. It appears though that the Glenwood checker, who had called Schroder over to approve that check, could not identify him in the court room and that the Rifle manager, who O.K.'d the other check, also did not recognize him. And, it should be noted here that the identification of defendant was made by the two witnesses who were extremely positive following their Viewing of Cheatwood in the Garfield Sheriff's office where the defendant was the only stranger present.
Other pertinent points here are that Schroder, the complaining store official, testified that defendant had endorsed the check in his presence. R. G. Sarten, the Rifle store manager, also had so asserted regarding the check cashed in his store. Also, that in the course of the argument on the Motion for a New Trial it was brought out that Palmer had been arrested in Grand Junction (west of Rifle) on a bad check charge in August 1963.
In any event, armed with Palmer's affidavit, defendant's sworn Statement and the F.B.I. Report, defense counsel sought relief in the trial court by way of his Amended Motion for New Trial. The Motion was denied, a belated free transcript was authorized and this writ of error was issued.
Although Cheatwood asserts several grounds for reversal, we deem the pertinent ones to be:
(1) That it was error to deny defendant's Motion for a free transcript of the record for the purposes of preparing his Motion (and argument) for a New Trial;
(2) That the trial court abused its discretion in denying the Motion for New Trial based on newly discovered evidence, in that such evidence if presented to another jury would probably have resulted in a different verdict; and,
(3) The trial court abused its discretion in refusing the Motion in that the Sheriff of Garfield County had the appended favorable F.B.I. Report in his possession and that the prosecution had, at the trial, wrongfully withheld this evidence which still remains uncontroverted. Further, that such a refusal of his motion was a violation of defendant's constitutional rights.
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