Kostal v. People, 19053
| Decision Date | 28 November 1960 |
| Docket Number | No. 19053,19053 |
| Citation | 357 P.2d 70,144 Colo. 505 |
| Parties | Albert Joseph KOSTAL and Arthur Jerome Watson, Plaintiffs in Error, v. PEOPLE of the State of Colorado, Defendant in Error. |
| Court | Colorado Supreme Court |
Hackethal & McNeill, Lakewood, for plaintiff in error Kostal.
Bradley, Carney & Johnson, Golden, for plaintiff in error Watson.
Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., Gerald Harrison, Asst. Atty. Gen., for defendant in error.
We refer to plaintiffs in error as defendants, or by name. An information was filed in the trial court in which defendants were accused of the crime of first- degree murder following the killing of one Raymond Earl Isley during a robbery committed in Jefferson county December 9, 1956. They were convicted and sentenced to death. They seek reversal of the judgment by writ of error.
Watson was arrested by federal officers in Detroit, Michigan, December 26, 1956. January 2, 1957, Kostal was arrested in Kansas City, Missouri, by federal officers and city police. At the time of their arrests defendants were fugitives from justice having escaped from Folsom prison on November 21, 1956. They were not then suspects in connection with the Jefferson county crime and were not questioned with relation thereto until about June, 1957, after they had been returned to Folsom prison. The information charging them with murder was filed in Jefferson county district court on June 28, 1957.
Defendants were returned to Colorado to stand trial pursuant to extradition procedures as set forth in C.R.S.1953, 60-1-1 et seq. In habeas corpus proceedings instituted in California the action of the Governor of that state in ordering the return of defendants to Colorado was approved by the Court of Appeals of California, In re Kostal, 151 Cal.App.2d 739, 312 P.2d 280. Defendants entered pleas of not guilty and the court set the cause for trial December 2, 1957. November 21, 1957, they escaped from the Jefferson county jail. Watson was recaptured that same evening. Kostal was apprehended in New York City January 10, 1958, at which time an officer attempting to make the arrest suffered a gunshot wound from a gun in the hands of Kostal who was struck in the leg by the same bullet. The wounds were suffered during a scuffle for possession of the gun drawn by Kostal in an effort to avoid arrest.
Trial of the case began on May 13, 1958, and continued for three weeks. The delay of the trial from December 2, 1957, until May 13th of the following year was caused exclusively by the excape of defendants from the Jefferson county jail, and the argument advanced by counsel for Watson that he was 'denied a speedy trial' has no merit whatever.
The robbery culminating in the homicide occurred in the Country Gentlemen Store. Five eyewitnesses identified the defendant Kostal as being one of the perpetrators of the crime. Four of these witnesses identified the defendant Watson as being the other bandit. The testimony of these witnesses was substantially in agreement concerning details of the crime, as follows: Watson stood at the side door of the store guarding the witnesses while Kostal was at the front of the store with the witness Tony Archer from whom he demanded the money from the safe. The deceased, a merchant policeman, drove up in front of the store and Kostal shot him in the forehead as he sat behind the wheel of his automobile. The witnesses all agreed that the men had artificially blackened or darkened their faces, though there was some doubt of this at first. Three ballistics experts were called by the people, all of whom testified that the gun found in defendant Kostal's possession when arrested was in fact the gun from which the cartridge, Exhibit D, found at the murder scene, was fired.
The defense testimony consisted of five law enforcement officers who reported the descriptions of the men as obtained from the witnesses soon after the commission of the crime. This testimony was introduced to cast doubt on the witnesses' identification of the two defendants. Some of whom described the men as Negroes, some as white men, and one described one of the perpetrators of the crime as having a 'light yellow face.' The last defense witness was a ballistics expert who contradicted the findings of the people's experts to a certain degree. He agreed the cartridge found at the murder scene had been fired from defendant Kostal's gun. He disagreed with the testimony of the people's witnesses that the bullet jacket found in the front seat of the decedent's car had been fired from the gun found in Kostal's possession when he was arrested.
Witnesses Sims and Nesbitt, called by the people, testified concerning the arrest of Kostal in Kansas City, Missouri. They took from him the gun which witnesses for the people testified fired the fatal shot. They testified that Kostal told them about his escape from Folsom prison; that he admitted participating in two armed robberies in Kansas City on December 14th and 15th, 1956; that he and a companion burglarized a pawnshop in Los Angeles, California, where he stole the gun which the officers seized at the time of his arrest. The victim of one of the Kansas City robberies identified Kostal and Watson as the men who robbed him on the night of December 14, 1956, at his place of business. The witness, Lightner, called by the people, testified to a conversation with defendant Watson on January 18, 1957, concerning his escape from Folsom prison. Watson told him about breaking into the pawnshop in Los Angeles where guns were taken. The pistol taken from him in Detroit was stolen in that burglary. Other testimony was received, from which it appears that the defendants stole automobiles in Sacramento and Los Angeles, California, following their escape from prison.
Following the Jefferson county killing, the evidence shows that defendants stole two Mercury automobiles in Denver and each defendant had one of them when arrested. All of the above-mentioned acts not directly connected with the robbery and homicide in Jefferson county were admitted over objection of counsel for defendants.
With reference to the escape from the Jefferson county jail a few days before the case was to have been tried pursuant to the original setting, evidence was admitted which established facts as follows:
Kostal drew a gun on a deputy sheriff who was acting as jailer, took the keys to the jail away from him, bound and gagged him and then went with Watson to the office where they encountered a lawyer seeking an interview with a client in custody. They locked the lawyer in a closet. Defendants then went to the nearby residence of Mr. and Mrs. Kelley and invaded their home at gunpoint, took $25 from Mr. Kelley, threatened to take him with them, forced him to give them keys to his automobile, ripped the telephone from the wall and left in the Kelley automobile. Shortly thereafter police picked up the trail and followed the Kelley car being driven by one of the defendants while the other defendant fired shots at the pursuing officers. Defendants wrecked the stolen car in their effort to escape, and fled the scene on foot. Watson was apprehended shortly thereafter. Kostal got away and was arrested in New York City as above stated.
No witness testified that either Watson or Kostal made any statement which could be construed as an admission of guilt concerning the charge contained in the information. All the statements made by either of the defendants received in evidence, related to acts which were not a part of the offense for the commission of which they were on trial. The conversations thus received were had at a time when neither defendant had been connected in any manner as a participant in the Jefferson county offense, and no reference to it was made by the officers who interrogated them.
In one way or another the trial court admitted evidence during the people's case in chief which tended to prove that between the dates of November 1, 1956, and December 16, 1956, defendants had:
1. Escaped from Folsom prison in the State of California where they had been confined as convicts.
2. Stolen a car in Sacramento, California, and driven it to Los Angeles.
3. Stolen a Mercury automobile in Los Angeles which they drove to colorado.
4. Committed a burglary in Los Angeles and stolen some guns.
5. Committed a burglary of an automobile agency in Lakewood, Colorado, and had stolen two automobiles from the premises. As already indicated, this took place on the same day of the homicide.
6. Committed an armed robbery of the proprietor of a grocery and market in Kansas City, Missouri.
7. Committed an armed robbery of the operator of a tavern in Kansas City, Mo.
To all of this testimony, timely and pertinent objections were made.
The question we are first called upon to answer is whether the evidence above referred to...
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