Hafer v. People, 23791

• Citation: 492 P.2d 847,177 Colo. 52
• Decision Date: 10 January 1972
• Docket Number: No. 23791,23791
• Parties: Robert D. HAFER et al., Plaintiffs in Error, v. The PEOPLE of the State of Colorado, Defendants in Error.
• Court: Colorado Supreme Court

Page 847

492 P.2d 847

177 Colo. 52

Robert D. HAFER et al., Plaintiffs in Error, v. The PEOPLE of the State of Colorado, Defendants in Error.

No. 23791.

Supreme Court of Colorado, En Banc.

Jan. 10, 1972.

Rehearing Denied Jan. 31, 1972.

William S. Padley, Ogallala, Neb., Richard A. Dudden, Denver, for plaintiffs in error.

Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., Michael T. Haley, Asst. Atty. Gen., Denver, for defendants in error.

WILLIAM M. ELA, District Judge. ^*

On charges of grand theft and conspiracy to commit grand theft, the three Hafer brothers together were tried before a jury, found guilty and sentenced. Their writ of error questions denial of their motions for new trial or judgment of acquittal. The plaintiffs in error are referred to collectively as defendants or by their first names--Robert, Donald, and Larry.

The defendants assert six grounds for error:

1. Admissibility of People's Exhibits N, O, P, and Q taken in a warrantless search of Robert's Cadillac.

2. Inadmissibility of Exhibit 11 as related to Donald's alibi.

3. Inadmissibility of Exhibit 15 as irrelevant.

4. Sufficiency of the evidence to allow the case to go to the jury.

5. Denial of a mistrial because of prejudice initiated by applause of the courtroom audience.

6. Failure to grant a new trial for improprieties in the District Attorney's closing arguments.

We find no grounds for error and therefore affirm.

The pertinent facts known to the officers up to the time of the defendants' arrests are as follows.

Two witnesses personally perceived and informed the officers of a non-business hours, 3:00 a.m. visit on September 25, 1967, by an unauthorized truck to the inside loading chute area of the Paoli Farmers Co-op Elevator Company's elevator in Phillips County, Colorado.

The eyewitness employee of the elevator company saw the truck proceeding away from the elevator down a lane without headlights until it reached the main highway No. 6. The truck turned on to the highway as its headlights came on, and it was joined by a second vehicle whose headlights came on at the same time. Both vehicles headed west on Highway No. 6. The witness also noted that the truck engine had an unusually loud noise. Within minutes, two witnesses followed the route of the two vehicles westerly on Highway No. 6. They saw no vehicles for about six miles till they came upon a truck faced west and parked on the road edge with a late model car having a light top parked directly in front of the truck. These witnesses continued west to the next town of Haxtun where they met with the Haxtun policeman to whom they related their story. Within minutes these three, joined by the alerted Paoli elevator manager, observed a west bound late model Cadillac convertible with a light top pass through Haxtun on Highway No. 6. These four observers then returned to the parked truck from which location the car had departed. They noted that the gasoline-engined truck was loaded with wheat and carried one muffler in the cab.

An officer viewed the truck registration on the steering column as belonging to Robert Hafer. An officer viewed the loading area and driveway of the Paoli elevator and verified the unusual presence of large truck tire tracks there. About 5:00 a.m., the Haxtun policeman again observed the same Cadillac pass easterly through Haxtun on Highway No. 6. Radio contact was made and officers stopped the Robert Hafer Cadillac, carrying Robert, Larry, and Donald, some two miles east of where Robert's truck was still stopped. Robert made a threshold denial of knowledge of his truck being just two miles behind him, and asserted it should not be there since it was supposed to be parked in Denver.

After the defendants' arrests, additional facts were found which are pertinent.

Eventually on September 25, 1967, Sheriff Thietje of Phillips County placed all defendants in jail. Larry voluntarily asked the sheriff to lock and look after the unattended Cadillac. In his approach to the car to place it in storage, the sheriff found in plain sight a revolver (Exhibit Q) and two pairs of dusty coveralls (Exhibits N and O) which he seized. These coveralls had grain in their pockets, and from one pocket the sheriff took Exhibit P, a Conoco gas ticket. Wilbur Janss, an employee at the Sterling, Colorado, Conoco Station, identified Larry as a man who usually dressed in coveralls. Janss fueled Robert's truck with 52.8 gallons of gas about 1:00 a.m. on September 25, 1967. He gave Larry a dated credit slip (Exhibit P) for such purchase which was in Janss' handwriting. Janss' work shift began at 12 midnight. He identified the defendants in court from past servicing of their vehicles. He identified Robert's truck and Cadillac by picture. Janss also filed Robert's Cadillac with gas at approximately 4:00 a.m. on September 25, with Larry, Robert, and an unidentified third person present.

An inventory at the Paoli elevator after the arrests on September 25 showed that three bins above the truck loading chutes contained wheat, one of which was down 30 feet, or about 2,700 bushels of wheat worth approximately $1.35 a bushel. The shortage was unexplained by any authorized or recorded withdrawal. One witness estimated there were 500 bushels of what on Robert's truck. The sheriff found that Robert's truck and Cadillac both carried similar 2-way radio equipment. Defendants introduced substantial evidence concerning an alibi.

1.

Defendants' first assertion of error, concerning the admissibility of Exhibits N, O, P and Q seized without a search warrant from Robert's Cadillac, depends upon the validity of defendants' arrests, as well as the materiality of the exhibits.

C.R.S.1963, 39--2--20 controls the prerequisites for a valid arrest without a warrant. The circumstances of a trespasser being in the elevator with a large truck at 3:00 a.m. and its leaving the elevator with its headlights off; the meeting of the truck and another vehicle (Cadillac) with its headlights turned off at the highway; the proximity in space and time of the stalled truck of wheat; and the suspicious activities of those in the Cadillac which led to the officers stopping of the Cadillac for identification of the passengers--all of the foregoing circumstances combined to give the sheriff probable cause to arrest the defendants under the provisions of the statute and under the test set forth in Gallegos v. People, 157 Colo. 173, 401 P.2d 613 (1965).

Larry's voluntary request to the sheriff to lock and look after the unattended Cadillac led to the discovery of the pistol and coveralls (Exhibits N, O, and Q) which were in plain view. The approach to the car was not for the purpose of a search. Consequently, the discovery of the evidence was inadvertent. The exhibits were properly seized. People v. Clark, Colo., 476 P.2d 564 (1970); People v. Teague, Colo., 476 P.2d 751 (1970); Alire v. People, 157 Colo. 103, 402 P.2d 610 (1965). The pistol was a usual instrument of crime. The dusty coveralls were significant as appropriate clothing worn in grain elevators.

The pistol (Exhibit Q) was admissible in evidence as a part of the history of the arrest. See Davis v. People, 137 Colo. 113, 321 P.2d 1103 (1958). The dusty coveralls (Exhibits N and O) were probative since they contained grain in their pockets. Exhibit N was especially important as containing Exhibit P in one of its pockets, since this Conoco ticket tied together Larry with the truck and the truck with the car for the specific short hours before the...