Jorgenson v. People

• Citation: 482 P.2d 962,174 Colo. 144
• Decision Date: 29 March 1971
• Docket Number: No. 23208,23208
• Parties: Ronald Eugene JORGENSON alias Ronald Eugene Brown, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.
• Court: Supreme Court of Colorado

Page 962

482 P.2d 962

174 Colo. 144

Ronald Eugene JORGENSON alias Ronald Eugene Brown, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.

No. 23208.

Supreme Court of Colorado, En Banc.

March 29, 1971.

Walberg & Pryor, Peter W. Pryor, Denver, for plaintiff in error.

Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., George E. DeRoos, Asst. Atty. Gen., Denver, for defendant in error.

PRINGLE, Chief Justice.

This writ of error is brought by Jorgenson, hereinafter referred to as the defendant, from his conviction for first degree murder. He received a life sentence.

Defendant's sister called him on the night of August 25, 1966, and told him her common law husband, Philip Morgan, had automobile license plates which belonged to her. She said she had found Morgan at a bar and asked the defendant to help her get the plates back from him. Defendant and a friend drove out to the bar. Defendant entered and asked Morgan to return the plates. Morgan refused. Defendant left the bar and went into the parking lot towards his car. At this time Morgan and defendant's sister came out onto the porch of the bar. Morgan began to hit the sister. Defendant reached into the car, took out his pistol, and fired a warning shot over their heads with the hope of frightening Morgan. Morgan jumped off the porch and ran towards defendant. Defendant testified that Morgan shouted that defendant would have to kill him or be killed. Thereupon, defendant shot three times and wounded Morgan. According to defendant, Morgan was still able to reach defendant and fight him for the gun, so defendant fired a fourth and fatal shot to the head. Witnesses for the People testified that Morgan did not get close enough to defendant to touch him, and that defendant fired until Morgan dropped.

Defendant was convicted for Morgan's murder after a long trial, basing his case solely on self-defense. For reasons set out below, we reverse this conviction, and remand for a new trial.

I.

During the People's rebuttal evidence, one Officer Hesse was called to give expert testimony regarding a nitrite (powder burn) test he had done. Hesse had been qualified as an expert in the area of ballistics earlier in the trial. The procedure Hesse had employed in making the test was to take a piece of the shirt Morgan was wearing at the time of the killing, and test it for nitrite. It showed no nitrite. Hesse then took a similar piece of cloth, started firing at it from a distance of six inches, and moved away until no nitrite appeared. This happened at three and one-half feet. The purpose of introducing this testimony was to show that defendant must have been at least that far away from Morgan when he was shot. If this were the case, defendant's testimony that Morgan reached him, and that the killing was in self-defense was directly impeached.

Defendant argues that in order to be admissible, the test conditions must be substantially similar to the conditions when the shooting occurred. This has been the law of this jurisdiction relating to civil cases. Kling v. City and County of Denver, 138 Colo, 567, 335 P.2d 876. We now adopt the same rule for criminal cases. The People agree that this is the proper rule, but contend that differences in conditions here were so minor as not to affect the admissibility of the evidence. We agree with the defendant that in this case the conditions were not substantially similar, and that the evidence was therefore inadmissible.

First and foremost, Hesse tested the shirt in question for nitrite some six months after the shooting. He could not testify as to whether this time difference would affect the fact that he found no nitrites on the shirt. Without this information, the test had no probative value.

Second, different cartridges were used on the test cloth than were in the gun the night of the killing. Hesse could not state what effect this would have on the nitrites found. Third, a different composition cloth was used. Fourth, Hesse did not fire the test shot at angles to determine whether this was relevant.

In conclusion, without evidence by an expert that the time loss and the use of different cartridges made no difference in the result of the test and without a foundation explaining the effects of the difference in conditions, the evidence was inadmissible. We therefore reverse the conviction, and remand for a new trial.

II.

Another policeman, Officer Peters, was called by the People on rebuttal to read from a statement given to him by the defendant in order to impeach defendant's own testimony. Defendant objected to this procedure on the grounds that this statement was not given...