Duran v. People, 22217
| Decision Date | 01 May 1967 |
| Docket Number | No. 22217,22217 |
| Citation | 427 P.2d 318 |
| Parties | Alex Joseph DURAN, Jr., Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error. |
| Court | Colorado Supreme Court |
Charles Ginsberg, Denver, for plaintiff in error.
Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., Aurel M. Kelly, Sp. Asst. Atty. Gen., Denver, for defendant in error.
By this writ of error, Alex Joseph Duran, Jr., seeks to reverse the judgment of the trial court which sentenced him pursuant to a verdict of guilty of robbery and conspiracy to commit robbery. Plaintiff in error will be referred to by name or as the defendant.
In limine it is appropriate to set out a statement of facts as shown by the People's evidence, and the record.
A few minutes after Ben Richtel returned from the bank to his bar and grill at 1133 Larimer Street in Denver, two men, dressed in work clothes and with guns, entered his cafe and announced 'this is a stickup.' They ordered Richtel, his wife, and his then customers Tony Romero and others to booths in the back of the restaurant where they were commanded by Duran to sit and remain. In the meantime, while Sandoval, an accomplice, was behind the bar collecting cash from the drawer and safe, Duran shot customer Romero through the back of the shoulder. Sandoval, however, failed to heed Duran's instructions to 'get the money out of the register.' As a result and as the culprits were leaving, Duran went behind the bar and took the money from the cash register. With approximately $2,390 of Richtel's money, the two men left for a nearby waiting car with running motor, allegedly driven by Chavez, and hurriedly departed the scene. Romero followed from the restaurant and observed the departing car.
The police responded promptly. The witnesses described the robbers as to size and weight; also, that one was wearing a workman's helmet, the other a castro-type cap. Both were described as having tape strips on their faces. Two witnesses stated that Duran had a mustache partially protruding from under the tape. Romero was the only witness who had a clear view of the getaway car. He described the car as a two-tone color with the back license plate 'bended at a 45 degree angle on one side and the other side was folded in half, covering the numbers'; he could read only one number--either a 6 or an 8.
The officers began a search for the getaway car and the three male occupants. Within five minutes a red and cream two-tone Plymouth car was sighted near the scene; the driver and sole occupant was Duran. The officers followed as Duran drove into Jimmy Chavez' yard at 2784 West 14th Avenue, where he was promptly taken into custody. On the back seat of the car was a helmet identified at the trial by Richtel as the helmet worn by Sandoval during the robbery. The rear license plate on the Plymouth two-tone automobile was of the shape as had been described by Romero; the number was RY--8394. Duran was immediately searched. In his then effort to escape, the officers pursued and fired at Duran. When they caught him 'he had two bullet holes in him.' Duran was sent to the hospital by ambulance. Sandoval and Chavez were arrested at the home of Mrs. Martinez, a few doors away from Jimmy Chavez' home. A search of the car and of all three defendants and of the home of Mrs. Martinez disclosed no guns or money. The defendants' defense was an alibi.
Alex Joseph Duran, Jr., Domingo Sandoval and James Clifford Chavez were jointly charged with the robbery of Ben Richtel, while armed with a gun, with intent, if resisted, to maim, kill or would him. In a second count these defendants were charged with conspiracy to commit robbery. A mistrial was declared in the first trial; a retrial was later held before another judge.
At the trial the defendants were severally represented by experienced and capable counsel. During the nine days of trial, the People's evidence was challenged in every particular and analyzed to the last detail. There were inconsistencies between the testimony of some of the People's witnesses, and previous statements or testimony given by them.
At the close of all the evidence the defendants separately made motions for judgments of acquittal. The trial court denied the motions of Duran and Sandoval, and reserved its decision on Chavez' motion. The jury returned verdicts of guilty against all defendants on both counts; robbery and conspiracy to commit such robbery, all as charged in the information. After motions for new trial were argued, Chavez' original motion for judgment of acquittal was granted and Chavez was discharged. Duran and Sandoval were duly sentenced.
From the judgment of the court Duran presecutes this writ of error by which he specifies four errors allegedly committed by the trial court:
1. The testimony of witness Romero resulted in reversible error;
2. and 3. There was no competent evidence of the identity of defendants, and defendants' guilt was not proven beyond a reasonable doubt;
4. The court erred in refusing to admit defendant Sandoval's exhibit 4 into evidence.
It should be observed at this point that although Duran, Sandoval and Chavez were jointly tried and convicted, Duran and Sandoval have sued out separate writs of error. At bar is a review under Duran's writ of error, notwithstanding Duran's cross references to Sandoval's interest together with his repeated advocacy in behalf of his former codefendant.
Duran argues that in view of the fact that his conviction was based upon Romero's testimony which, he states, the trial court found to be unbelievable, unreliable and inadequate against Chavez, therefore, the court should have found Romero's testimony was inadequate and insufficient to convict Chavez' codefendants, and hence their motions for judgment of acquittal should have, likewise, been granted. The record does not support Duran in this assertion. The only participation Chavez is charged to have had with the actual robbery, was as driver of the getaway car. Romero's testimony relating to Chavez was uncorroborated and was directed solely to the identification of him as the alleged driver of the getaway car. The witness' view was a fleeting glance, at a distance, while under nervous stress and with an unsatisfactory opportunity for observation.
The trial court must have had the above elements in mind when it granted Chavez' motion and specifically limited the acquittal of Chavez to Romero's lack of opportunity to observe the driver of the getaway car; it stated the following:
While Romero's identification of Chavez was uncorroborated, Duran was positively identified by Richtel and customer Whisencon, who were present during the time the robbery was taking place. Neither the record nor the remarks of the trial court can give comfort to Duran or support his claim that the evidence going to the identity of Duran and Sandoval as the robbers was insufficient as a matter of law.
For his second and third assignments of error, Duran asserts there was no competent evidence of the...
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...of their in-court testimony but not to its admissibility. See, People v. Watkins, 191 Colo. 440, 553 P.2d 819 (1976); Duran v. People, 162 Colo. 419, 427 P.2d 318 (1967). The defendant argues that the trial judge should have made factual findings regarding the identifications. Huguley v. Pe......
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