De Gesualdo v. People

• Decision Date: 14 August 1961
• Docket Number: No. 19286,19286
• Citation: 147 Colo. 426,86 A.L.R.2d 1435,364 P.2d 374
• Parties: , 86 A.L.R.2d 1435 Joseph DE GESUALDO, Plaintiff in Error, v. PEOPLE of the State of Colorado, Defendant in Error.
• Court: Colorado Supreme Court

Page 374

364 P.2d 374

147 Colo. 426, 86 A.L.R.2d 1435

Joseph DE GESUALDO, Plaintiff in Error, v. PEOPLE of the State of Colorado, Defendant in Error.

No. 19286.

Supreme Court of Colorado, En Banc.

Aug. 14, 1961.

Ben Klein, Denver, for plaintiff in error.

Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., J. F. Brauer, Asst. Atty. Gen., for defendant in error.

DOYLE, Justice.

This is a companion case to No. 19313, Ciccarelli v. People, Colo., 364 P.2d 368. Plaintiff in error, herein referred to as defendant, was separately charged and tried on evidence substantially similar to that presented against Antonio Ciccarelli in No. 19313. Defendant was found guilty of burglary and was also found guilty of feloniously conspiring with Antonio Ciccarelli to commit burglary against the property of Fred Harsch. The transaction is the identical one in which Antonio Ciccarelli was tried and convicted.

The information against this defendant also charged him with having been convicted of felonies on two prior occasions. He was sentenced under the habitual criminal law to a term of not less than 10 years nor more than 30 years in the State Penitentiary.

The facts and evidence set forth in our opinion in Ciccarelli v. People, announced this day, are in most respects the same as the evidence which was introduced against the defendant here. There are some differences to be noted. Defendant was identified as having been present near the scene of the attempted burglary of the Draper Drug Store. Also, officers saw him in company with Ciccarelli both in Longmont and Loveland on the evening in question. When defendant was arrested in Frederick, Colorado, he had $60 in new currency on his person. The evidence showed that Ciccarelli had $70 in his possession. A total of $130 in 5, 10 and 20 dollar bills was taken from the lumber company in Longmont, the subject of the burglary.

When the defendant was questioned he first denied that he had been in either Longmont or Loveland on the night in question. He stated that he had taken Ciccarelli to Denver. Later, however, he admitted that he had been in Loveland. Thereafter, he refused to answer further questions.

Numerous grounds are urged for reversal. Many of these points have been considered and determined contrary to defendant's contention in our opinion in case No. 19313, and it is unnecessary to further discuss these questions. The contentions which have not been previously considered and which we deem sufficiently important to warrant discussion are:

1. That the court erred in allowing the prosecution to call as a witness Antonio Ciccarelli.

2. That the court erred in its ruling with respect to evidence pertaining to proof of the defendant's identity in support of previous convictions.

a. On this, defendant argues that the court erred in allowing detective Walbridge of the City and County of Denver to testify from an unidentified record card which was not introduced into evidence and in allowing Walbridge to compare that card with Exhibit B, a certified copy of the record of conviction.

b. That the court erred in allowing a fingerprint comparison between the prints on a record card which Walbridge brought with him from the identification bureau in Denver with the prints which were allegedly taken by the Sheriff of Boulder County on the occasion of the defendant's incarceration in this case. It is said that it was error to allow the comparison without proving positively that the prints were those of defendant.

I. It was misconduct for the district attorney to call Ciccarelli to the witness stand and obtain from him the claim of privilege against imcrimination in the presence of the jury.

The district attorney had previously endorsed Ciccarelli as a witness in the case. However, there is nothing in the record which would indicate that Ciccarelli intended to testify for the prosecution. His case was set for trial at a later date. Both Ciccarelli and DeGesualdo were defended by the same counsel. Thus the question is whether the district attorney can call as a witness an accomplice or co-conspirator (where the accused is charged with conspiracy) in the hope that the accomplice will have suffered a change of heart, or in the alternative so as to get before the jury the fact that he, at least considers that his testimony would be incriminating to him, the accomplice. The effect of such a device is clear. The jury is told of the whereabouts of the missing defendant and is also told that he at least considers it impossible to testify without incriminating himself. Does such a scene create prejudice in the minds of the jury?

To appreciate the full impact of what occurred one has to read the actual record. Ciccarelli was called to the stand and the district attorney proceeded as follows:

'Q. Will you give your full name, please?

'Mr. Klein: Your honor, I object to this proceeding, this testimony in this matter. I think the court can take judicial notice that Mr. Ciccarelli is charged with several criminal offenses which are related to this matter, and I believe his testimony would be inadmissible at this time.

'The Court: Not inadmissible. If he wants to testify he may do so.

* * *

* * *

'Q. Mr. Ciccarelli, on or about the 29th day of September, 1958, did you own an automobile? A. I refuse to testify because it might tend to incriminate me.

'Q. Mr. Ciccarelli, do you know the defendant, Joseph DeGesualdo, sitting over here? A. I refuse to testify because it might tend to incriminate me.

'Mr. Dolan: If it please the court, the witness is invoking the Fifth Amendment, I take it. Would it be possible to ask the court that he be required to testify in this matter?

'The Court: No, under the circumstances that's his privilege.

'Mr. Dolan: Very well, your honor.

'The Court: If he so claims it, then he is entitled to do so.

'Q. Mr. Ciccarelli, on or about the 29th day of September, 1958, at approximately eight o'clock in the evening, do you know where you were? A. I refuse to testify because it may tend to incriminate me.

'Mr. Dolan: We have no further questions. Do you care to cross examine him?

* * *

* * *

'Mr. Klein: I move that Mr. Ciccarelli's testimony be stricken as not relevant to this matter.

'The Court: There is no testimony, nothing to strike.'

It is apparent that the district attorney could not have possibly entertained a good faith belief that Ciccarelli would testify if called and thus the inference is that this was a studied attempt to bring to the attention of the jury his refusal to testify and his claim of the 'Fifth Amendment.' The trial court was alerted, as was the district attorney, that Ciccarelli was facing criminal charges and that he did not intend to testify, but notwithstanding this the court allowed the district attorney to call him and seemingly approved what took place. The question arising therefore is whether this staged incident, this court room scene, is to be ruled prejudicial to the rights of the defendant. If it could be concluded that the call of this witness was in good faith or if the court had instructed the jury to disregard the byplay, the conduct could be overlooked. But in the circumstances presented, it is impossible to conclude that such procedure did not have an adverse effect on the rights of the defendant.

It is fundamental, of course, that a co-defendant or accomplice is a competent witness and may be called to testify. See Barr v. People, 30 Colo. 522, 71 P. 392. See also II Wigmore on Evidence, Sec. 580, 3d Ed. (1940). This, however, is not the present problem. The question is can he be called for the purpose of extracting from him a claim of privilege against incrimination.

There appears to be a paucity of authority on the exact question and we assume that this is due to the fact that district attorneys outside of Texas seldom proceed in this manner. People v. Plyler, 121 Cal. 160, 53 P. 553, appears to hold that it is not prejudicial. The reasoning of the California Court in that case has much less appeal than that of the Texas Court of Criminal Appeals in the case of Garland v. State, 51 Tex.Cr.R. 643, 104 S.W. 898, 899. There the court brought out most clearly the point which we find disturbing, namely, the use of claim of privilege by co-defendant as a circumstance against the defendant on trial. The Court said:

'We note in the record an exception to the effect that the state placed the paramour of appellant on the stand and she claimed the privilege of being an accomplice to the crime. See Merritt v. State, 10 Tex.App. 402. The paramour being an accomplice, the state should not attempt to place her on the stand unless she proposes to turn state's evidence. Then it would be the duty of the court, after she should testify, to charge the law of an accomplice. But it is certainly prejudicial to appellant to place his paramour upon the stand, and wring from her a refusal to testify, and have the jury use this refusal as a circumstance of guilt against appellant. We would suggest upon another trial that this be not done.'

The most recent case is that of Washburn v. State, 1956, 164 Tex.Cr.R. 448, 299 S.W.2d 706, 708. There it was said:

'The trial court committed error in permitting the state to call the witness Nelson, a co-defendant, to the stand and require him to claim his privilege against self-incrimination and refuse to testify in the presence of the jury. Such refusal * * * could be used as an incriminating fact against the appellant.'

Cited with approval were numerous other Texas cases, including Rice v. State, 123 Tex.Cr.R. 326, 59 S.W.2d 119. See also Johnson v. State, 158 Tex.Cr.R. 6, 252 S.W.2d 462.

In United States v. Amadio, 7 Cir., 215 F.2d 605, 613, the trial court gave a cautionary instruction and because of this fact the case was not reversed. Nevertheless the comments of the reviewing Court show clearly the prejudicial aspect of an incident such as the present one when...