Maisel v. People

• Decision Date: 17 June 1968
• Docket Number: No. 22617,22617
• Citation: 442 P.2d 399,166 Colo. 161
• Parties: Raymond MAISEL, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.
• Court: Colorado Supreme Court

Page 399

442 P.2d 399

166 Colo. 161

Raymond MAISEL, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.

No. 22617.

Supreme Court of Colorado, In Department.

June 17, 1968.

Levi Martinez, Pueblo, for plaintiff in error.

Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., George E. DeRoos, Asst. Atty. Gen., for defendant in error.

McWILLIAMS, Justice.

Raymond Maisel, hereinafter referred to as the defendant, was charged in a two count information with burglary and larceny. Upon trial a jury returned a verdict of not guilty as to the burglary charge, but at the same time convicted the defendant of larceny and fixed the value of the goods stolen at $57. Thereafter defendant's motion for new trial was denied and he was sentenced to a term of from two to five years in the state penitentiary. By writ of error the defendant now seeks reversal of the judgment and sentence.

A bit of background material will hopefully place the controversy in focus. Shortly before midnight a large rock was thrown through the front window of the Goodman Jewelry store in Pueblo and certain items of merchandise were taken from the display case. Immediately thereafter two police officers espied two persons running from the aforesaid building. The police were able at that time to apprehend only one of the two persons seen running, namely one Warwick. The other person eluded the police, at least for the time being.

An hour or so later the defendant was arrested in the general neighborhood of the jewelry store and when asked by the police what he was doing the defendant volunteered that he was looking for his friend, Mr. Warwick.

The proprietor of the Goodman Jewelry testified that the following items of merchandise were stolen from her store: eight hunting knives, six pocket knives, two straight edge razors, and two transistor radios. About an hour after the theft the defendant left the aforementioned items with another of his friends, a Mr. Chavez.

Upon trial Warwick, for no doubt good and sufficient reason, was not a party defendant as he might well have been, but on the contrary appeared as a witness for the people. His testimony was that he did not burglarize the store in question, and that the defendant was the culprit who broke the window and stole the merchandise from the display counter. He testified that he was innocently imbibing a beer in a neighborhood tavern when the defendant happened in and recounted his burglarious and larcenous activities of the evening. By way of explaining his arrest while running away from the jewelry store and the glass particles found imbedded in the sole of his shoe, Warwick testified that after the defendant had informed him in the tavern about the burglary, the two of them returned to the jewelry store, and that he was then arrested moments later. In the course of his testimony Warwick volunteered that the defendant was a homosexual. And this utterance forms the basis for the defendant's main assignment of error.

When the witness Warwick made this statement the defendant moved for a mistrial. The trial court denied this motion, but did strike the answer and instructed the jury to disregard the entire response. During the trial there was outward evidence, at least, of 'bad blood' between Warwick and the defendant, who apparently had a falling out after the burglary. At least upon trial each accused the other of bribery and of generally attempting to induce the other not to testify or appear at the trial of the matter. It was in this particular setting, then, that Warwick's objectionable statement was made.

The granting or denying of a motion for a mistrial is a matter lying well within the sound discretion of the trial court and its exercise of this discretion will not be disturbed by us on review unless the record shows an abuse of that discretion. This rule is a salutary one and recognizes that the trial court, being on the scene, is in a better position than we to evaluate the situation and to assess the effect, if any, of a volunteer statement of the type uttered by Warwick. Our study of the record leads us to conclude that there was no abuse of discretion in the instant case. Hammons v. People, 153 Colo. 193, 385 P.2d 592 and Hopper v. People, 152 Colo. 405, 382 P.2d 540.

As noted above, the jury fixed the value of the goods stolen to be $57 and in this regard the defendant argues that there is no competent evidence as to value. The only witness to testify as to value was the owner and proprietor of the jewelry store. Over objection, she testified as to the Retail value of each of the missing items. Her testimony established that the aggregate value of the stolen merchandise was $107, but, as indicated, the jury fixed the aggregate value to be only $57.

Is evidence of retail price evidence of market value? We conclude that it is, especially where as in the instant case we are dealing with items which were being sold over the counter on a more-or-less daily basis, and there is nothing to indicate that the retail price is higher than the true market value.

In People v. Irrizari, 5 N.Y.2d 142, 182 N.Y.S.2d 361, 156 N.E.2d 69, the New York Court of Appeals was faced with a similar situation. There some suits were stolen from a department store and the owner thereof was permitted to testify as to the wholesale price and the retail price of each suit. In holding that evidence as to retail price was proper, the New York Court of Appeals stated as follows:

'In short, market value, as the term is used in section 1305, denotes not the value of the...