Gallegos v. People
| Decision Date | 06 July 1965 |
| Docket Number | No. 20822,20822 |
| Citation | 403 P.2d 864,157 Colo. 484 |
| Parties | Dave GALLEGOS and Toby Gallegos, Plaintiffs in Error, v. The PEOPLE of the State of Colorado, Defendant in Error. |
| Court | Colorado Supreme Court |
Robert T. Kingsley and Ben Klein, Denver, for plaintiffs in error.
Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., James W. Creamer, Jr., Asst. Atty. Gen., Denver, for defendant in error.
Dave and Toby Gallegos are brothers. They were convicted of first degree murder and sentenced to imprisonment for life. By their writ of error they claim that the lower committed reversible error in eight particulars, namely:
1. In admitting Exhibit 'O,' a police report, in evidence;
2. In admitting the testimony of an officer relaying a description given him by a witness;
3. Procedurally and substantively, by the manner in which it dealt with the refusal of a witness to testify on constitutional grounds of self-incrimination;
4. In allowing the prosecution to ask leading questions of its witness, in that there was not a proper showing of surprise;
5. In refusing to allow defense counsel to impeach witnesses on cross-examination by showing their bias, interest, and motives;
6. In instructing the jury on flight, in that there was not evidence thereof, and in that it was an inadequate instruction;
7. In refusing to strike the nonresponsive answer of a witness, 'Your defendants had already been identified';
8. Receiving a jury verdict which was contrary to the law and the evidence.
In large measure the identity of the two persons who participated in the slaying of Joseph A. Florez is central to these grounds of asserted error. In fine, the two Gallegoses have made identification the crucial fact of this case.
From the record we learn that Florez owned and operated a junk yard at 2639 Larimer Street in Denver. On September 20, 1961 Florez was shot and killed during an attempted robbery at his place of business by one of two masked gunmen who appeared during the noon hour at a time fixed between 12:50 and 12:57 P.M. At the time, one Simon Rogas, the father-in-law of Florez, was in the premises.
The two gunmen entered the premises, and one approached Rogas, who was sitting in a chair near the entrance, and told him to remain seated. Rogas, suspecting horseplay, did not take the gunman seriously, but the gunman soon convinced him that he meant business.
The other gunman went to the rear of the junk shop, where Florez was working. These two soon appeared, walking toward the front of the shop, at which point one Joseph Hoskins made his appearance. At his appearance, one of the gunmen shot Florez. Both gunmen immediately left the building and fled down an alley.
At the trial, Lena Harmon, who was at at time staying with her father at 1191--27th Street, stated that she saw the brothers Gallegos running across the street and entering the premises in which she was staying. She testified that, while they were running, they were trying to remove something from their faces. She said that, after entering the premises, she saw a gun on the radio and that the brothers Gallegos wanted her to drive them to 23rd and Glenarm.
In the course of her testimony, the following took place:
'Q Directing your attention to the testimony on the witness stand you gave this morning, you were specifically asked whether or not your heard and conversation between David and Toby Gallegos. Do you remember that?
'A Yes.
'A Yes, I heard something to the effect, 'You should have hit him over the head instead of killing him,' or something like that.
'Q (by Mr. Urso) You should have hit him over the head instead of killing him?
'A yes.
'Q And this was at 1191--27th Street shortly after the noon hour on September 20, 1961?
'A Yes.
* * *
* * *
'Q (by Mr. Urso) Mrs. Harmon, do you know which of the two defendants said this?
'Q (by Mr. Urso) You heard this, Mrs. Harmon?
'A I don't know who it was said it.
'Q (by Mr. Urso) But it was one of the two defendants?
'A Yes, I guess.'
Another witness who testified on behalf of the People was Rudy Hidalgo. He, two, was at 1191-27th Street on the same day. According to him, the brothers Callegos walked into the front room of the premises and 'lay three pistols on top of a radio there, and started talking about going to rob a place, I don't know where.' He said he overheard the conversation between the brothers Gallegos in which they said 'they had to go some place and be there at noon or a little after to catch the man alone.'
He also told the court and jury about how he saw them running. He noted that 'they had their handkerchiefs just pulled down above their face.' After they entered the apartment, they put the pistols back on the radio. His testimony further discloses:
'A Well, Toby had tears in his eyes, telling his brother why did he have to kill him for.'
They, then, according to Hidalgo, took off their jackets and their handkerchiefs and finally got Lena to drive them away.
1191-27th Street is over one block and around the corner from the junk yard owned by Florez.
To this point we have sketched the evidence with a broad brush. Other evidence must necessarily be particularized hereinafter as it relates to the ground of error being considered.
1. Was Exhibit 'Q' improperly admitted in evidence? Exhibit 'O' is a printed form, designated 'Offense Report,' containing blanks which were filled in by the reporting officer, D. Myers.
Officer Myers testified that he had called headquarters for a Spanish-speaking officer after his arrival at 2639 Larimer Street. This was done so that a statement could be taken from the eye-witness to the slaying, simon Rogas. Officer Nieto translated for Officer Myers, who wrote the information in the report along with his own statement of the conditions he observed upon his arrival.
Defense counsel, on cross-examination of Myers, asked him to refresh his recollection of the time of the event from the report. Thereafter the report was offered in evidence by the People during Nieto's testimony concerning his conversation with Rogas. The defense objected to its admission as hearsay, and as twice-told hearsay in part because it represented a translated version of Rogas' story. It was received in evidence over defendants' objection.
The lower court admitted Exhibit 'O' in evidence on the theory that, if part of a document is used for refreshing recollection on cross-examination, all of the document upon request is admissible in evidence. This theory has been advanced on occasion before the courts, has been the subject of some study, and has been productive of different or disparate opinions. We are committed to the rule that admits in evidence only those other parts of the statement which have relevant reference to that part of the statement already made known to court and jury. Wilder v. People, 86 Colo. 35, 278 P. 594, 65 A.L.R. 1260.
The general rule in criminal and civil cases is that a witness may not testify to another's statements made in conversation through an interpreter, because such testimony, being based upon interpretation rather than personal knowledge, is hearsay. State v. Fong Loon, 29 Idaho 248, 158 P. 233, L.R.A.1916F, 1198; Boyd v. State, 78 Tex.Cr. 28, 180 S.W. 230; see 116 A.L.R. 800; Sharp v. McIntire, 23 Colo. 99, 46 P. 115.
At first blush these evidentiary rules would seem to require a reversal. But on a more extensive analysis we hold that other rules have application and are controlling. These other rules are operable by reason of the circumstances as they developed in the course of the trial.
The record discloses that all three persons involved in the compilation of Exhibit 'O' were called to the stand and testified to its contents. Conceding this to be true, counsel contend that there are discrepancies between the exhibit and the testimony of Rogas. Officer Nieto was subjected to a long and searching cross-examination, as were Rogas and Officer Meyers. The...
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