Kurtz v. People

Decision Date22 February 1972
Docket NumberNo. 23904,23904
Citation177 Colo. 306,494 P.2d 97
PartiesRichard Lynn KURTZ and Epifanio Jesus Barrientos alias Jesse Barrientos, Plaintiffs in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.
CourtColorado Supreme Court
Epstein, Epstein & Lozow, Donald L. Lozow, Gary Lozow, Denver, for plaintiffs in error

Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., Michael T. Haley, David A. Sorenson, Asst. Attys. Gen., Denver, for defendant in error.

KELLEY, Justice.

The defendants were convicted of first degree murder and sentenced to life imprisonment. The homicide was committed at about three o'clock a.m. on November 16, 1967, at South Fork, Rio Grande County, Colorado, by three men as they were making their escape from a store following an aborted burglary.

At about two-thirty o'clock a.m. the owner of the store, who regularly left the rights on in the store all night, became aware that the store was being burglarized. The owner's wife telephoned Joe Stout, a neighbor, and asked him to come to their residence. The owner's wife then proceeded to telephone the law enforcement officers in the area. While awaiting the arrival of the sheriff and other law enforcement officers, the owner and Mr. Stout proceeded to the store armed with rifles and hand guns. Their purpose was to prevent the burglars from leaving the store before the arrival of the law enforcement officials. The owner guarded the front door and Mr. Stout took up position near the rear door. A 1967 white Mustang was parked with the keys in the ignition immediately adjacent to the rear door. Witnesses heard shots being fired. One witness testified that 'somebody started hollering at me, they would kill me if I didn't bring them the car keys.' More shots were heard. The burglars had escaped through the rear door. Mr. Stout was found dead beside the Mustang with its keys in one of his pockets.

Within 30 minutes after the shots were fired, one Twyford, charged jointly with the two defendants but severed for purposes of the trial, returned to the area in front of the store and surrendered himself to one of the officers. He acknowledged that two other individuals were involved with him in the burglary.

Kurtz and Barrientos, the defendants here, were apprehended the afternoon of the day following the murder as they were walking along the main highway between South Fork and Del Norte, the county seat. From the investigation and search the law enforcement officers were able to reconstruct the escape route of Kurtz and Barrientos. It led from the store across the south fork of the Rio Grande River, which runs along the foothills, and eventually back to the highway near where the two were arrested. Clothing, worn by the defendants, matched that described by witnesses.

The physical evidence--the condition of the ice over the river, footprints in the mud along the ditch, items taken from the store, 'fuzz' from Kurtz' jacket found on a fence, coins taken from the coke machine in the store, and the keys to the murder victim's truck, all of which were found at various places along the route--were circumstances directly connecting the defendants to the burglary and the murder committed in connection therewith.

Eyewitness descriptions and cloth fuzz found at the end of the trail leading from the scene of the crime matched a coat that Kurtz was wearing at the time of the arrest. This fact not only linked Kurtz to the crime, but also, in view of apprehension together of the two defendants in the vicinity of the crime and their bedraggled condition, it also linked Barrientos to the crime.

At the trial evidence was introduced to reconstruct the events leading up to the morning of the 16th. At trial, then, evidence was introduced to show the following:

(1) That the police in Omaha, Nebraska knew Kurtz, Twyford and Barrientos to associate with one another;

(2) That the three had been observed together on the 13th of November;

(3) That on the 14th of November the Adams Driveaway Company had put a white 1967 Mustang into the custody of Twyford in Omaha (4) That Twyford, driving a white Mustang, had rented a room in an Englewood motel on the morning of the 15th and that three men had stayed in the motel;

(5) That fingerprints of the defendants and Twyford were in the interior of the Mustang.

As to this chain of events, its relevancy and materiality, appellants make no assignment of error. Further, this chain of circumstances, when coupled with other facts (E.g., eyewitness' descriptions of the burglars' apparel) and considered in the light most favorable to the prosecution, constitutes sufficient evidence to withstand defendants' motions for acquittal.

I.

As to the evidence taken from the Englewood motel room, appellants urge fatal error. The record shows that the motel owner testified directly to the effect that a man, positively identified as Twyford, rented a room at ten o'clock in the morning of the 15th, that this man was driving a white Mustang, and that, although the registrant rented a room for two persons, three beds had been used when the owner went to examine the room at nine o'clock in the evening. Further, the motel owner identified a pillow and pillowcase, removed from the Mustang after seizure at the scene of the crime, as being those which had been supplied by the motel.

The trial judge, although he stated that he would instruct the jury as to the limited purpose for which these exhibits were admitted, failed to do so. Appellants urge this as error, relying on Stull v. People, 140 Colo. 278, 344 P.2d 455, as a statement of mandatory procedure controlling the use of 'other crimes' evidence.

'. . . First, the prosecutor should advise the trial court of the purpose for which he offers the evidence. Secondly, if the court admits such evidence, it should Then and there instruct the jury as to the limited purpose for which the evidence is being received and for which the jury may consider it. Thirdly, the general charge should contain a renewal of the instruction on the limited purpose of such evidence. Lastly, the offer of the prosecutor and the instructions of the court should be in carefully couched terms: they should refer to 'other transactions,' 'other acts,' or 'other conduct,' and should eschew such designations as 'similar offenses,' 'other offenses,' 'similar crimes,' and so forth. . . .'

The Stull doctrine, which we reaffirm, is premised on the proposition that a defendant should not be tried for a crime wholly independent of the offense for which he is on trial. In the Stull opinion this court in commenting on this point said:

'And a presumption of guilt should not be generated against an accused by showing that he committed a crime indicative that he is a depraved person who likely would commit the crime for which he is being tried. . . .'

Here, the evidence relating to the motel linen was not introduced to show the transaction at the motel as independent criminal activity, but was used as one circumstance in a chain of circumstances to establish that the defendants accompanied Twyford from Omaha to the scene of the crime charged.

This evidence corroborated the motel owner's identification of Twyford and connected the defendants to the white Mustang and also established that the three men, who were together in Omaha, were still together in Denver, and was admissible for this purpose.

It would be wholly unrealistic to believe that a jury would be so naive as to convict persons of murder on the basis of evidence that a pillow taken from a motel room was found in the car in which they had travelled to the scene of the crime.

Although the trial judge should have instructed the jury as to the limited purpose of this evidence, his failure to do so under the circumstances of this case, considering the petty nature of the offense as compared with the gravity of the charge

against the defendants, was harmless error beyond a reasonable doubt.

II.

The error primarily relied upon by the defendant for reversal relates to the admission in evidence, over objection, of all exhibits seized in a search of the white Mustang automobile. At the time of the seizure the defendants had not been apprehended.

Although the sheriff obtained a search warrant authorizing the search of the Mustang, the Attorney General concedes that the affidavit upon which the validity of the warrant depends was insufficient. There can be no argument on this score. The affidavit does not contain a single recitation of an underlying fact. See Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723.

If the search of the automobile and the seizure of the articles found therein are to withstand the constitutional assault of the defendants, their validity must stand as a warrantless search.

The validity of automobile searches, like most search and seizure problems, turn upon their own peculiar circumstances. Go-Bart Importing Co. v. United States, 282 U.S. 344, 51 S.Ct. 153, 75 L.Ed. 374. Cowdin v. People, Colo., 491 P.2d 569, 1971. Our examination of the facts in this case leads us to the conclusion that the defendants' attack must fail.

As indicated in the statement of facts, the Mustang figures prominently in the drama of the tragedy that is this case. It was parked at the back door of the Foothills Market with the keys in the ignition. The car carried Nebraska license plates. Mr. Stout had positioned himself near the back door to prevent the burglars from leaving the store, and had removed the key from the ignition. Also, Others in the vicinity at the time of the shooting heard someone threaten to kill the party who had the key to the car unless it was handed over.

It clearly appears that the car brought the burglars to the scene of the crime and that it was the intention of the burglars to use it to effect their escape. The sheriff thus had probable cause to believe that the car was...

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