Goddard v. People, 23250

• Decision Date: 14 September 1970
• Docket Number: No. 23250,23250
• Citation: 474 P.2d 210,172 Colo. 498
• Parties: Walter GODDARD, Jr., Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.
• Court: Colorado Supreme Court

Page 210

474 P.2d 210

172 Colo. 498

Walter GODDARD, Jr., Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.

No. 23250.

Supreme Court of Colorado, En Banc.

Sept. 14, 1970.

Rollie R. Rogers, State Public Defender, Thomas M. Van Cleave, Deputy State Public Defender, Denver, Frank J. Anesi, Public Defender, Sixth Judicial Dist., Durango, for plaintiff in error.

Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., Aurel M. Kelly, Asst. Atty. Gen., Denver, for defendant in error.

PRINGLE, Justice.

Walter Goddard, Jr., the defendant was charged with burglary and conspiracy to commit burglary and was convicted on both charges. He was sentenced to not more than five years in the state reformatory on each charge, the sentences to run concurrently.

The defendant argues (1) that there is insufficient evidence as a matter of law to support the guilty verdicts for burglary and conspiracy; (2) it was error for the court to admit an extra-judicial statement by the defendant into evidence without holding an In camera hearing to determine its voluntariness; (3) instruction eleven defining the crime of conspiracy failed to distinguish between conspiracy as a felony and as a misdemeanor and erroneously included the offense of cooperating to aid in doing an unlawful act as an element of conspiracy; (4) the instruction on accessory is defective for failure to include an instruction on an accessory during the fact; (5) instruction twelve is defective because it instructs the jury that they could find him guilty of conspiring to commit the crime of conspiracy; (6) the court erred in rejecting defendant's tendered instruction on specific intent; and (7) the court erred in permitting the district attorney to (a) ask questions of one of the witnesses concerning acts which transpired after the crime and out of the presence of the defendant, (b) ask questions of witnesses as to where the defendant lived and whether he had any money, and (c) make a statement in front of the jury that one of his own witnesses had been charged as a delinquent in the same transaction without an instruction by the court to the jury to disregard.

We conclude that the defendant is entitled to a hearing and a determination by a judge on the question of the voluntariness of his statement. For that reason the judgment is reversed. On the remaining issues, we find no error.

I.

The defendant admits that he broke into and entered the Arts and Sciences Building of the Durango High School on the night in question. He argues, however, that there is no sufficient evidence in the record that he did so with the intent to commit the crime of larceny therein.

It is not contested that the defendant and two others entered the Arts and Sciences Building that night. The undisputed evidence is that the defendant climbed up on a trash can, removed the screen from an unlocked bathroom window and climbed into the building. He then opened a door onto the alley and admitted the other two. There was no evidence that the entry of any of the parties was authorized, and the only conclusion that can be drawn from the record is that the entry by the defendant was unlawful. In the recent opinion in Garcia v. People, August 4, 1970, Colo., 473 P.2d 169, this court held that where one breaks and enters into the property of another in the night time, the jury may infer that he did so with the intent to commit larceny.

The record contains more evidence of the defendant's intent than the fact of breaking and entering. Defendant himself testified that he and his two companions proceeded to a food locker in the kitchen adjoining the school cafeteria. There the defendant removed a case of milk which he handed to one of his companions and which was then taken outside and placed in their car. The jury could properly infer from this evidence that the intent to commit a felony existed at the time of the breaking and entering. See Keller v. People, 153 Colo. 590, 387 P.2d 421.

The defendant took the stand and denied that he had any intent to commit larceny at the time he entered the school building. Likewise, the two persons who entered the building with him denied having any intent to commit larceny. The result is that the evidence of intent was conflicting, and it was the proper province of the jury to determine the question, as they did.

The circumstantial evidence in the record is also sufficient to support the jury determination of guilty on the charge of conspiracy. The cases in Colorado are legion which state that a conspiracy is often covert in nature and may be established by circumstantial evidence. The circumstances necessary to support a conviction of conspiracy are those which show that the defendants pursued by their acts the same objective, one performing one part and another another part of the same so as to complete it, with a view to the attainment of that same objective. Abeyta v. People, 156 Colo. 440, 400 P.2d 431.

In this case, the evidence shows that the defendant and the two others who accompanied him into the school building were rooming together at the time of the burglary. These two stood by while the defendant made his way through the unlocked window into the school building. Defendant then opened the alley door for them and the three then proceeded to a food locker in the kitchen. There the defendant entered and handed several items of food out to his two companions. One of the companions took the proffered food outside and placed it in the car in which they were riding. When discovered inside the building by police, both defendant and his remaining companion attempted to hide while those in the car outside fled, subsequently abandoning the stolen food. This evidence, showing the pursuit of a common objective by the defendant and his companions, is sufficient to sustain the jury's determination of guilt even in light of the denials of conspiracy or agreement by all those involved.

II.

The defendant objected at trial to the admission into evidence of his statement made to Captain Garnand of the Durango Police Department on the basis that he had not been informed of his constitutional rights and had not waived them at the time the statement was made. This objection was overruled by the trial judge, and the statement was admitted. The defendant argues that he was entitled to an In camera hearing and a determination by the judge on the issue of voluntariness under the rule in Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 and Whitman v. People, Colo., 460 P.2d 767.

The question upon which the trial judge ruled was whether the defendant's statement was volunteered or was given in response to police interrogation. If volunteered, the statement would be admissible without proof of the knowing and intelligent waiver of constitutional rights by the defendant required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. In Miranda, the Supreme Court stated, 'Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today.'

Jackson v. Denno, Supra, stands for the proposition that a defendant has the constitutional right to object to the use of his confession or admission at some stage of the proceedings and have an In camera hearing on the issue of its voluntariness. In Whitman v. People, Supra, we held that the judge is required to conduct a hearing when it becomes evident to him that voluntariness is in issue.

In this case, the defendant expressly objected to the admission of his statement, and directly raised the issue of its voluntariness. The trial judge ruled on the objection without conducting a hearing. At the time of his ruling the judge had heard testimony from the two police officers present at the time the statement was made and from another defendant testifying as a witness for the People. Because no hearing was held, the judge did not consider testimony which the defendant could have given, and in fact did give when he later took the stand, to the effect that he gave his statement in response to the question by officer Garnand: 'What were you doing in there?'

We hold that the judge was in error in ruling on the objection without conducting a hearing to determine whether the statement was given by the defendant in response to police questioning, and if so whether the requirements of Miranda had been met. The case is reversed and remanded to the trial court for an In camera hearing on the question of voluntariness. If the judge finds that the statement was...