Dockerty v. People

• Decision Date: 04 March 1935
• Docket Number: 13557.
• Parties: DOCKERTY et al. v. PEOPLE.
• Court: Colorado Supreme Court

44 P.2d 1013

96 Colo. 338

DOCKERTY et al. v. PEOPLE.

No. 13557.

Supreme Court of Colorado, En Banc.

March 4, 1935

Error to District Court of the City and County of Denver; James C Starkweather, Judge.

John Dockerty, Carl Lombardi, alias Joe Carmazino, alias Carl Coleri, and Melvin Benien were convicted of aggravated robbery, and they bring error.

Affirmed.

HILLIARD and BOUCK, JJ., dissenting.

O. Otto Moore, of Denver, for plaintiffs in error.

Paul P Prosser, Atty. Gen., and Walter F. Scherer, Asst. Atty. Gen for the People.

YOUNG, Justice.

Plaintiffs in error were defendant below and will be so referred to in this opinion.

They were convicted of aggravated robbery, and bring the case here on writ of error.

The facts as claimed by the people are briefly as follows: The automobile of C. W. Savery, a Denver business man, was stopped on a Denver street by an automobile driven in its path. The defendant Lombardi and one Melvin Benien appeared on opposite sides of Savery's automobile, thrust pistols at Savery, and ordered him from the car. As Savery alighted, he was struck on the head by one of the holdups, whose gun was fired during the altercation. Lombardi and Benien drove away in the victim's car, pursued by a bystander. They later abandoned the car after taking a money bag containing $697 together with other small articles. Benien turned state's evidence, and testified that the defendant Dockerty was a participant in the plans for the robbery, and drove the car which blocked off Savery's auto. Benien further testified to Lombardi's active participation. Savery identified Lombardi as one of the men who held him up with a gun. Dave Chuven, a police officer, testified to investigations made after the robbery, and to the recovery of some tennis balls which also were taken in the holdup.

The defendants made a complete denial of the charges and facts as claimed by the people and attempted to show that they were a 'frame-up' of the witness Benien actuated by his feeling of hostility toward defendants and his desire to secure a parole, which defendants endeavored to show he had been promised by the police officers if he would testify against defendants. At the time of trial, Benien had pleaded guilty, but had not been sentenced.

The defendants assign various errors in the admission of testimony by the trial court. A number of assignments relate to the court's refusal to admit certain testimony which defendants claim was admissible to impeach and discredit the testimony of Benien by showing hostility toward defendants and a selfish motive to convict defendants to obtain a parole for himself. To do this, defendants proposed to show that Benien had written to two different parties outside of the jail to bring in saws so he could saw out of jail. Benien was asked if he did write such notes and he denied doing so. He admitted that a fellow prisoner, Armstrong, offered to bring saws in, and later admitted that a note to one Ness, requesting that Ness bring saws in to him, was in his handwriting. The court refused, on objection, to permit further testimony concerning the note, but witness being asked without objection if he knew Dockerty was in trouble in jail and accused of trying to get saw blades in, answered that he had heard nothing about it. He stated also that he had given no information that Dockerty was trying to saw out of jail. Defendants offered to show that Dockerty got the blame for trying to get the saws in, thus, as counsel says in his brief, 'showing a motive on the part of Benien to blame Dockerty with things he had nothing whatever to do with.' Dockerty was on the stand but was not asked in regard to any trouble that he had about saws while in jail, and counsel for defendants never offered to show that Benien falsely accused Dockerty of it.

The fact that an attempt was made by Benien to have saws brought in is not of itself material; neither is it material that Dockerty got the blame for it. These facts could become material only if it were shown or proposed to be shown that Benien took part in throwing blame on Dockerty for his, Benien's, act, and we can find nothing in the record that shows, or any offer to show, this fact. On the record as it stands, with no offer to show, and no evidence tending to show, that Benien cast blame on Dockerty for bringing in saws, when in fact the act was one for which he himself was responsible, the rulings of the court were proper and were merely the exclusion of immaterial testimony.

Defendants assign error on the court's refusal to permit certain questions to be asked of defendant's witness Armstrong. On cross-examination Benien was asked if he did not tell one Armstrong that he believed the police were going to double cross him on their promise to give him a parole. He answered that there was nothing of that kind said. He was then asked if he did not go further and say that since he believed they were going to double cross him he was going to grab a detective's gun in court and make a get away. He denied that anything of that sort was said. These were impeaching questions. They were proper because the promise of immunity, if one has been made, or the expectation of leniency, if no promise has been made, are facts to be considered as bearing on Benien's credibility as a witness. The ultimate relevant fact to be determined is the state of mind of the witness; whether he did or did not believe that by testifying against defendants he would further his own interests and get a lesser punishment. It was proper to ask the witness Armstrong the impeaching questions, but they should have been framed in the same, or substantially the same, form, as they were asked of Benien when the foundation for impeachment was laid. A formal impeaching question is necessarily a leading question. The questions were not propounded to Armstrong in the same form they were asked of Benien. Those asked Benien contained nothing about testifying against defendants as a condition of getting a parole. The questions went merely to the matter of Benien being promised, and his expectancy of a parole. That Benien was to testify against defendants as a condition of getting a parole was a matter injected into the questions for the first time when Armstrong was being interrogated as a witness. The question asked of Armstrong was not proper for this reason, though not objected to on that ground. On general questions Armstrong was permitted to state, and did state, that Benien told him he was promised a parole for pleading guilty and that he was afraid the detectives 'were not going through with it.' On the foundation for the impeaching questions as laid, defendants obtained from Armstrong all they were entitled to receive by his answers to general questions. Defendants therefore were not prejudiced by the court's refusal to permit the questions to be put in the usual form. The matter of 'grabbing a gun' in the courtroom was no doubt practically important to the defendants for such prejudicial effect as it might have on Benien's testimony Before the jury, but legally it was, and could be, relevant and admissible, only as an incident by which to call the witness' attention to the occasion on which the statements with regard to promised immunity or leniency were made. It was not error to refuse permission to question the witness Armstrong concerning this incident.

Defendants attempted to show that the detectives refused to let any one talk to Benien while in the county jail. This interrogation, counsel says, should have been permitted as bearing on the credibility of the officers testifying. It will be noted that the question asked was not whether the officers testifying had made such order, but whether the detective bureau had done so. The fact sought to be elicited by the question involving the actions of others than the two officers who were witnesses could not have a bearing on the credibility of their testimony. The objection to the question was properly sustained.

Defendants complain that prejudicial hearsay testimony was admitted over objection. The witness Chuven was questioned at some length regarding favoritism and privileges extended to Benien while he was in jail and particularly as to taking him out riding. The evidence purpose of this was to show pressure was being exerted on Benien to make his testimony favorable to the prosecution. On redirect examination the district attorney asked in some detail what was done on these trips and the witness Chuven said they went over the route followed in the robbery and flight; that the witness showed them different places; how they zigzagged around to get away; and where they threw the tennis balls that were taken from Savery's car. When asked what place he showed them as the one to which the tennis balls were thrown, the answer was: 'It was in the alley right off of Umatilla and Wyandotte there, where they parked the car, where they went through the yard, and where they met Dockerty in his car.' Defendants moved to strike the answer. Certainly the first part as to the street location was proper. This place had already been identified as the one where Dockerty was met by the witness Benien. The witness Chuven was not asked how he knew the car was parked there or how he knew that it was the place where Benien and Lombardi met Dockerty. Counsel for defendants merely assumed he had no personal knowledge of what he testified to. If he had been asked if he knew the facts of his personal knowledge, and if any part of the answer had been shown to be hearsay, a motion to strike such part probably then would have been granted. The other testimony objected to does not go further than a general statement that witness showed them how he did certain things...