Hammons v. People, 20139
| Decision Date | 16 September 1963 |
| Docket Number | No. 20139,20139 |
| Citation | 385 P.2d 592,153 Colo. 193 |
| Parties | Bernard Joseph HAMMONS, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error. |
| Court | Colorado Supreme Court |
John J. Gibbons, J. H. Boutcher, Denver, for plaintiff in error.
Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., John E. Bush, Asst. Atty. Gen., for defendant in error.
The judgment here for review is from conviction of a felony in the District Court of Adams County. Plaintiff in Error will be referred to as the defendant.
The record discloses that defendant, a former Denver Police Officer, was charged by information with feloniously breaking and entering a motor vehicle on December 20, 1959 with intent to commit larceny. A proper consideration of the case requires both a chronology of certain events and a summary of the evidence.
It appears that following his arrest defendant was released on bond and after several continuances trial was had in September 1961. Before the trial began his lawyers proposed, to the court in chambers, to enter a plea of nolo contendere, which was opposed by the District Attorney, and refused by the court. The parties then returned to the courtroom and the jury was impaneled. While the jury was being selected the District Attorney had a number of items which him in the courtroom. These consisted of a woman's jacket allegedly taken from the car, tools used in breaking into the car and several other articles that had been found in the defendant's car. Following its selection the jury was excused for the day. The following morning defendant's attorneys moved for a mistrial. Two grounds were urged for the motion. The first one was the appearance in the Denver Post of the preceding evening of a news article stating that defendant had offered a nolo contendere plea because he did not have evidence to refute the prosecution's case. Defendant urged that this story might have come to the attention of some members of the jury and was highly prejudicial. The second ground urged for a mistrial was the presence of some of the previously mentioned personal articles which it was asserted were not all connected with this crime. The court denied the motion on both grounds, but requested the removal for the personalty until such time as it was to be introduced in evidence.
At the trial there was testimony by two Commerce Town policemen who had witnessed the offense. They were parked in their car at 1:45 a. m. about 50 feet away from a Studebaker car and watched defendant and his companion leave the Flamingo Tavern and start to get into the defendant's vehicle. They testified that as defendant did so he noticed the jacket in the car next to him; that first he attempted to open the car door, then pry open the vent and when unsuccessful in that method he used an ax to break the window. He then removed the jacket and placed it in his own car. At this point the two officers drove up and placed both defendant and his companion under arrest.
On cross examination both officers were questioned at great length on the visibility at the scene of the larceny. They stated that there was a near by street light and some reflected light from the tavern itself which enabled them to see the actions of defendant. The question of the color of defendant's car was also raised and the officers testified that it was a two-toned blue; later evidence, however, indicated that it might have been a two-toned green.
Also, on cross examination one policeman was asked about the tools used by defendant. He later was questioned about $100.00 cash found in a sweat sock in the trunk of defendant's car. On redirect The People sought to introduce a boxful of articles taken from the car trunk and which this witness identified. Though objected to they were admitted on the theory that having inquired about the money in the trunk other personalty could also be introduced. Also, a coat worn by defendant's female companion on the night of the crime, which had no connection with the larceny, was kept in the courtroom but never offered in evidence.
Although there was no plea of not guilty by reason of insanity the defense consisted primarily of evidence attempting to show that defendant was mentally ill at the time of the larceny and could not therefore have had the necessary criminal intent. Fellow police officers, who had worked with him, testified as to his mental condition and that he was a man who 'lived in a fog'; that at times he was unaware of his own actions or the passage of time. On cross examination one witness was asked whether he thought it unusual that a man earning defendant's modest salary could have saved $18,000. Objection was made and the jury was instructed to disregard the question. Defendant's wife testified that in the year before the alleged crime he had changed a great deal and she believed part of this change had resulted from a back injury which left him in considerable pain. She further stated that she had worked for a number of years which had enabled them to accumulate some savings. Defendant's final witness was Dr. J. P. Hilton, a psychiatrist who had had defendant under treatment since January 1960. The doctor testified that he had hospitalized him on three different occasions for a...
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