McGregor v. People, 24190

• Decision Date: 08 November 1971
• Docket Number: No. 24190,24190
• Parties: Willie Ray McGREGOR, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.
• Court: Colorado Supreme Court

Page 287

490 P.2d 287

176 Colo. 309

Willie Ray McGREGOR, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.

No. 24190.

Supreme Court of Colorado, En Banc.

Nov. 8, 1971.

Rollie R. Rogers, Colo. State Public Defender, J. D. MacFarlane, Chief Deputy State Public Defender, T. Michael Dutton, Deputy State Public Defender, Edward H. Sherman, Public Defender for City & County of Denver, Isaac Mellman, Sp. Asst. Public Defender, David G. Manter, Asst. Public Defender, Denver, for plaintiff in error.

Duke W. Dunber, Atty. Gen., John P. Moore, Deputy Atty. Gen., Aurel M. Kelly, Asst. Atty. Gen., Denver, for defendant in oerror.

HOWARD E. PURDY, District Judge. ^*

The defendant, Willie Ray McGregor, was convicted of robbery and sentenced to the penitentiary. He how brings error here.

The facts out of which the charge arose follow. In mid-morning on May 17, 1967, one Harry Cunningham was robbed in his jewelry store on East Colfax Avenue in Denver. He was tied up while the robbery took place, was struck and kicked by defendant's accomplice resulting in serious injuries, causing him to be hospitalized. The investigating officers took various police photographs to the hospital, and from these Cunningham identified the defendant as one of the participants. The defendant was personally exhibited to Cunningham while in the hospital. Upon seeing the defendant, Cunningham identified him as one of the robbers.

The defendant urges this court to reverse his conviction upon the following grounds:

1. That the trial court erroneously permitted in-court identification by Cunningham which was tainted by the hospital identification.

2. The trial court erroneously instructed the jury on principal and accessory.

3. That the trial court committed error in the giving of an instruction on the defendant's defense of Alibi.

4. That error was committed by the trial court in refusing and denying defendant's request for a continuance interposed at the opening of the trial.

5. That defendant was prejudiced by a denial of his Motion for a Mistrial arising from a remark by the trial judge, allegedly made before the jury at a recess, but not in the record, to the effect that trial delays were being caused by defense counsel.

We address ourselves to these allegations of error in the order set forth above.

I.

THE IDENTIFICATION. The trial judge held an in-camera hearing for the purpose of eliciting testimony to which the tests set forth in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), could be applied. This in-camera testimony revealed that on May 17, 1967, Harry Cunningham's jewelry store was robbed by two armed bandits, neither of whom wore masks. The duration of the robbery was about fifteen minutes and Cunningham had ample opportunity during that time to observe both robbers. Although Cunningham was soundly beaten by one of the brigands, he was able soon after the crime to pick out the pictures of the two men from the many photographs displayed to him by the Denver Police Department. The photograph of this defendant which Cunningham selected did not reveal that the defendant had an ear deformity, although Cunningham had observed the deformity during the robbery and mentioned it to the police officers. The defendant did in fact have such an ear deformity, which Cunningham said was unlike any other he had ever seen.

Based on Cunningham's photograph identification, the defendant was arrested in California and returned to Denver, whereupon the defendant was taken to Cunningham's hospital room and the confrontation between the two took place some six months after the commission of the crime. At this hospital confrontation Cunningham was asked if he had ever seen this man before, to which he responded: 'He's one of the two men that robbed me. This was the man who took the jewelry from the safe.'

The in-camera evidence showed that this confrontation between Cunningham and the defendant took place in the presence of two detectives and a nurse; that no other Negro males were present at that time and that the defendant was not fandcuffed or otherwise restrained.

Based upon this in-camera evidence, the trial judge made findings: a. that the hospital identification was improperly conducted and that testimony regarding the hospital identification was inadmissible by law; b. that the in-court identification by Cunningham was proper, was independent of the hospital identification, Was not tainted by the hospital identification, and that the evidence as to in-court identification was admissible. We agree. This evidence was clearly sufficient to meet the tests set forth in United States v. Wade, Supra, to warrant the trial court's admission into evidence of Cunningham's incourt identification. See also Phillips v. People, 170 Colo. 520, 462 P.2d 594 (1969); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199; and Hanks v. United States, 388 F.2d 171 (10th Cir. 1968).

II.

PRINCIPAL AND ACCESSORY. The defendant argues that the trial court erred in giving jury Instruction No. 15 on accessory in the language of C.R.S.1963, 40--1--12, the contention being that the evidence did not warrant such an instruction.

The testimony of the victim is clear that he was approached while in his jewelry store by two men, one of them being the defendant, who pulled guns and said, 'This is a stick-up,' and 'We want your valuables.' The defendant then went back to the safe with a bag and started removing merchandise from the safe, while the other robber beat Cunningham, threatened to kill him and ultimately tied him with a rope to assure their escape with the loot.

It is axiomatic that where two or more persons engage jointly in the commission of a crime, the giving of an accessory instruction is proper. Tanksley v. People, 171 Colo. 77, 464 P.2d 862; Cruz v. People, 147 Colo. 528, 534, 364 P.2d 561 (1961). In Schreiner v. People, 146 Colo. 19, 24, 360 P.2d 443 (1961), in language peculiarly appropriate to the case at bar, this court said:

'* * * Where, as here, two persons are acting in concert, one holding the victims at bay, the other emptying the cash register, an instruction on accessory is in order. In the absence of such an instruction the jury might conceivably acquit the one who held the victims at bay in the mistaken belief that since he did not Personally take the money from the register he was therefore innocent of the charge of robbery. It has long been the law in Colorado that an accessory who stands by and aids in the perpetration of a crime may properly be charged as a principal, and in the case of co-defendants it is unnecessary to spell out which one is the principal and which the accessory, nor is it necessary to characterize and classify the specific acts of each. See Block v. People, 125 Colo. 36, 240 P.2d 512; Erwin v. People, 126 Colo. 28, 245 P.2d 1171; Mulligan v. People, 68 Colo. 17, 189 P. 5.'

III.

THE ALIBI. On behalf of the defendant, testimony was presented through various witnesses, including Billie Jefferson, who testified regarding a trip she made with the defendant to the State of Texas where they visited her mother during the time the alleged robbery herein took place. The defendant testified in his own defense. There was also rebuttal testimony by various police officers who testified as to the...