Lucero v. People
Decision Date | 24 February 1970 |
Docket Number | No. 22195,22195 |
Citation | 465 P.2d 504,171 Colo. 167 |
Parties | Richard Joseph LUCERO, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error. |
Court | Colorado Supreme Court |
Harry H. Haddock, Denver, for plaintiff in error.
Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., Aurel M. Kelly, Sp. Asst. Atty. Gen., for defendant in error.
The defendant, Richard Joseph Lucero, was charged and convicted of aggravated robbery and conspiracy to commit robbery for which he was sentenced to concurrent terms in the penitentiary. The convictions are here for review on writ of error.
The defendant alleges numerous errors which he claims entitle him to a new trial, three of which he deem worthy of consideration. In order, they are: (1) Denial of a speedy trial; (2) prejudice resulting from the security measures employed by the sheriff's office during the trial; (3) the admission into evidence of in-custody statements which were not voluntary but which were coerced, and without prior advice as to his constitutional rights.
In the late afternoon of May 3, 1962, two armed men, one with a rifle and one with a revolver, entered the office of St. Anthony's Credit Union; a third man remained outside and served as a 'look-out.' The individual with the rifle ordered the several employees of the credit union into one room of the two-room office and directed them to lie face down on the floor. Failing to find any cash in the safe, one of the men demanded to know where the money was kept. An employee responded that it was in the cash drawer and indicated where the cash drawer was located. The drawer was pulled out in such fashion that the contents were emptied on the floor. The robbers gathered up the money and fled.
On May 5, 1962, the defendant was arrested at the home of his parents. Floyd Felix Rose and John Garcia were arrested the same day. All three were identified as participants in the robbery and were so charged. Later that day Detective Brannan, the investigative officer, recovered a revolver, a rifle and a topcoat from a shed at the rear of Rose's grandfather's house. The rifle was identified at the trial by one of the victims as the one used by the defendant during the robbery and the revolver as similar to the one used by the other defendant (Garcia) who entered the credit union office with the defendant. The coat, likewise, was identified as similar to the one worn by the defendant.
On May 8, 1962, the defendant and Rose signed a written statement, which is Exhibit D, admitting their participation in the robbery and implicating Garcia. This statement was received in evidence and is the subject of alleged error (3).
(1) DENIAL OF A SPEEDY TRIAL.
The defendant contends that he was deproved of a speedy trial in violation of Colo.R.Crim.P. 48(b), which provides that:
'* * * If the trial of a defendant is delayed more than one year after the finding of the indictment or filing of the information, unless the delay is occasioned by the action or request of the defendant, the court shall dismiss the indictment or information; * * *.'
The defendant in support of this contention states:
'* * * Continuances were always for some reason other than any action or request on the part of the Defendant who was under a constant factor of duress because he was on parole from the Colorado State Penitentiary at the time of this alleged aggravated robbery. * * *.'
In view of the fact that the information was filed on May 10, 1962, and the trial to which this writ of error was directed did not commence until November 9, 1965, it is necessary to examine the circumstance surrounding this extraordinarily long delay.
Trial was initially set for January 15, 1963. When the matter came on for trial, the defendant's retained attorney stated that he was not ready for trial and specifically waived the two-term rule and the one-year requirement. At this time the district attorney announced that he was ready for trial and that the witnesses were in court. The case was then reset for August 13, 1963. On August 13, defendant's attorney of record asked leave to withdraw, as did the attorney of record for Garcia. After two further hearings in successive weeks, the present attorney for the defendant was appointed by the court to represent both Lucero and Garcia. The case was then set for trial on January 16, 1964.
When the matter came on for trial on January 16, 1964, a Mr. Salazar appeared in behalf of Floyd Felix Rose and requested a continuance in order to prepare for trial. The court had previously appointed present counsel for the defendant to represent Rose. The district attorney objected to the continuance unless agreed to by the defendant. The court permitted the entry of appearance of Mr. Salazar on behalf of Rose and, having previously denied a motion for severance by Mr. Lucero, continued the matter for trial until March 16, 1964. The district attorney and the defendant and his counsel appeared pursuant to the propr trial setting. However, the court again continued the matter, stating:
* * *.'
The district attorney advised the court that his witnesses were present and 'that the People are and were ready for trial at that time.' Defendant's counsel stated 'that the defendants Richard Lucero and John Garcia strenuously object to any delay or continuance and are ready and prepared to go to trial and feel that their rights are being prejudiced and jeopardized by not going to trial at this time.'
The court then set the case for trial on June 22, 1964, but, as noted above, it was not rried until November 9, 1965.
A speedy public trial is a relative concept requiring judicial determination on a case by case basis. The one-year provision in Rule 48(b) is conditioned upon the proposition that the delay is not caused 'by the action or request' of the defendant. Casias v. People, 160 Colo. 152, 415 P.2d 344. Another circumstance to be considered in determining whether the defendant received a speedy trial is the extent of congestion of the docket of the trial court. This court has said that a speedy trial envisions a 'public trial consistent with the court's business.' Medina v. People, 154 Colo. 4, 387 P.2d 733.
On occasions when the case could have been tried, either the defendant or one of his then codefendants requested a postponement. Subsequently, the business of the court was the cause of the delay. At all times the prosecutor had his witnesses present in court and announced that he was ready for trial. Under these circumstances the delay having been initially caused by the defendant he cannot invoke the rule. Medina v. People, Supra; Adargo v. People, 159 Colo. 321, 411 P.2d 245; Keller v. People, 153 Colo. 590, 387 P.2d 421; Keller v. Tinsley, 10 Cir., 335 F.2d 144. Here, the defendant specifically waived his right to a speedy trial. Also, the defendant has not alleged any prejudice resulting from the long delay and none is apparent from the record other than that which occurs to all litigants, criminal and civil, who have been caught in the vise of excessive backlogs so prevalent in our present-day court system. Arthur v. People, 165 Colo. 63, 437 P.2d 41; Beavers v. Haubert, 198 U.S. 77,
(2)
PREJUDICE RESULTING FROM THE SECURITY MEASURES
EMPLOYED BY THE SHERIFF'S OFFICE DURING THE TRIAL.
The defendant's claim of prejudice is based upon the fact that two uniformed officers were present in the courtroom during the trial. The defendant was serving a term in the state penitentiary at the time of the trial for a conviction on another charge. Prior to trial, defendant, his counsel, the district attorney and representatives of the sheriff's department discussed in detail procedures to be followed in escorting the defendant to and from the courtroom in a manner that would de-emphasize to the greatest extent possible that the defendant was in the custody of the sheriff's department. A plan was worked out whereby the defendant with his counsel entered from the area of the judge's chambers rather than through the public entrance to the courtroom. The defendant was dressed in a suit rather than in prison garb and he was not manacled.
The court substantially adopted the procedure requested by counsel for the defendant. To the extent that there was a variance, it was merely to maintain a reasonable degree to security and to permit the sheriff's office to fulfill its responsibility without undue risk of escape or of injury to the public resulting therefrom. The court did not abuse its discretion in the manner in which this phase of the trial was conducted. See, Montoya v. People, 141 Colo. 9, 345 P.2d 1062; Eaddy v. People, 115 Colo. 488, 174 P.2d 717.
(3) ERROR PREDICATED ON ALLEGED
INVOLUNTARY INCUSTODY CONFESSION.
The defendant alleges that the trial court erred in admitting statements, both oral and written (Exhibit D), which defendant made to a police officer while in custody following arrest. The error is based upon a denial of Fifth and Sixth Amendment rights under the Constitution of the United States.
The defendant relies primarily on Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977; and Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d...
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