McClendon v. People

• Decision Date: 01 March 1971
• Docket Number: No. 23794,23794
• Citation: 174 Colo. 7,481 P.2d 715
• Parties: Philip English McCLENDON, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.
• Court: Colorado Supreme Court

Page 715

481 P.2d 715

174 Colo. 7

Philip English McCLENDON, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.

No. 23794.

Supreme Court of Colorado, En Banc.

March 1, 1971.

Rollie Rogers, State Public Defender, Edward H. Sherman, Public Defender, Benjamin J. Andrews, Jr., Stephen C. Rench, Asst. Public Defenders, for City and County of Denver, Denver, for plaintiff in error.

Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., Paul D. Rubner, Ronald Beeks, Richard G. McManus, Asst. Attys. Gen., Denver, for defendant in error.

ERICKSON, Justice.

Philip English McClendon, the defendant below, was charged with burglary of a private residence. Through his appointed counsel, the Public Defender, he entered a plea of not guilty, and the charges were tried to a jury which found the defendant guilty as charged. Thereafter, he brought a writ of error to this Court, and he was again represented by the Public Defender.

The primary issue presented by the writ of error is whether the trial court erred by denying defendant's motion for a directed verdict of acquittal. The argument is premised upon the contention that the evidence presented by the prosecution was insufficient to overcome the presumption of innocence. Review of the record in this case discloses an abundance of evidence to support the conviction. There was evidence presented to the effect that a private home had been forcibly entered and that several drawers and a jewelry box in the bedroom of the home had been opened. Testimony was also presented to the jury which established that a man was present in the burglarized home and that the defendant, McClendon, was observed by Willie Howard, the occupant of the burglarized house, as McClendon was effecting an exit through the rear door of the house. . in addition, McClendon was identified by another eyewitness as the man that Willie Howard pursued down a side alley after McClendon left the house. McClendon was apprehended by Willie Howard after a three-block chase and was detained until the police arrived.

Even though the evidence relating to the defendant's participation in the crime was circumstantial in part, and even though the credibility of one witness was placed in issue by the defendant who claimed that the testimony of Willie Howard was inherently incredible, all of those issues were presented to the jury for their determination. With this evidence before the Court, the defendant would have us declare the trial court in error for submitting the case to the jury.

The test for determining whether a judgment of acquittal should be granted has been set out with clarity in previous opinions of this Court. In Ruark v. People, 164 Colo. 257, 434 P.2d 124 (1967), we stated:

'It is true, as Ruark contends, that the prosecution must prove all the essential elements of the offense. When, however, the state proves on its case in chief acts from which the jury may properly infer the elements of a crime, then the state has made a 'prima facie' case impregnable against a motion for acquittal.'

A year later, we were again presented with this issue in Mathis v. People, 167 Colo. 504, 448 P.2d 633 (1968), and we then ruled:

'Where there is evidence in the record from which a jury can find beyond a reasonable doubt that the circumstances are such as to exclude every reasonable hypothesis of innocence, we cannot say that the trial court erred in refusing to enter a judgment of acquittal, nor will we sit as a thirteenth juror and set aside a jury verdict because was might have drawn a different conclusion from the same evidence.'

In Maes v. People, 169 Colo. 200, 454 P.2d 792 (1969), we again ruled upon this issue with this language:

'There is obviously evidence in the record from which the jury could find beyond a reasonable doubt that the circumstances were such as to exclude every reasonable hypothesis of defendant's innocence. We therefore cannot say that the trial court erred in denying defendant's motion for judgment of acquittal, and we will not sit as 'a 13th juror' and set aside a jury verdict.'

These decisions are dispositive of the issue presented by McClendon. See also Maynes v. People, 169 Colo. 186, 454 P.2d 797 (1969); Cokley v. People, 168 Colo. 52, 449 P.2d 824 (1968); Speers v. United States, 387 F.2d 698 (10th Cir. 1967); Wall v. United States, 384 F.2d 758 (10th Cir. 1967); Maguire v. United States, 358 F.2d 442 (10th Cir. 1966); Cartwright v. United States, 335 F.2d 919 (10th Cir. 1964). We find that there is evidence in the record justifying the trial court's presentation of the issue of guilt to the jury. We will not disturb the jury's conclusion from such evidence.

The other issues raised by the defendant primarily concern the credibility of particular witnesses. Each of his arguments was presented to the jury and resolved by the jury against him. We have ruled in myriad cases that credibility of a witness is an issue which must be resolved by the jury. See, e.g., Harvey v. Irvin, 156 Colo. 391, 401 P.2d 266 (1965).

This case was decided on the briefs after defense counsel waived oral argument. In the context of this case, we have encountered the questions of when the Public Defender is required to prosecute an appeal and the duties which he has on appeal. In the American Bar Association Studies on Standards of Criminal Justice, no means was discovered that would unerringly separate a frivolous appeal from the meritorious appeal. In fact, various screening processes devised by the states in the evolution of appellate criminal procedure were found to be violative of the Sixth Amendment right to counsel. Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); Entsminger v. Iowa, 386 U.S. 748, 87 S.Ct. 1402, 18 L.Ed.2d 501 (1967); Cruz v. Patterson, 253 F.Supp. 805 (D.Colo.1966), aff'd. 10 Cir., 363 F.2d 879, cert. den. 385 U.S 975, 87 S.Ct. 504, 17 L.Ed.2d 438; Cruz v. People, 149 Colo. 187, 368 P.2d 774 (1962); Cruz v. People, 147 Colo. 528, 364 P.2d 561 (1961), cert. den. 368 U.S. 978, 82 S.Ct. 483, 7 L.Ed.2d 440. See Note, Right to Counsel to Appeal--Colorado Procedure Disapproved, 38 Rocky Mt.L.Rev. 630 (1965--66).

In Anders v. California, Supra, the Supreme Court recognized that counsel for an accused must be an advocate and cannot merely review the case and cast aside the points urged by the defendant as being without merit. The Special Committee of the American Bar Association, in formulating the Standards of Criminal Justice relating to Criminal Appeals and to The Prosecution Function and The Defense Function, gave full recognition to the points raised in Anders v. California, Supra, and at the same time defined the obligations of defense counsel in representing a defendant on appeal when the case is without merit. The Criminal Appeals Standards provide as follows:

'3.2 Counsel on appeal

'(b) Counsel should not seek to withdraw from a case because of his determination that the appeal lacks merit.

'(i) Counsel should give his client his best professional estimate of the quality of the case and should endeavor to persuade the client to abandon a wholly frivolous appeal, or to eliminate particular contentions that are lacking in any substance.

'(ii) If the client wishes to proceed, it is better for counsel to present the case, so long as his advocacy does not involve deception or misleading of the court. After preparing and filing a brief, on behalf of the client, counsel may appropriately suggest that the case be submitted on briefs.

'(c) Unexplained, general requests by appellants for dismissal of their assigned counsel should be viewed with disfavor.'

(ABA Standards, Criminal Appeals, pp. 73--74.)

The Standards also provide:

'8.3 Counsel on appeal.

'(a) Trial counsel, whether retained or appointed by the court, should conduct...