Ortega v. People

• Decision Date: 17 April 1967
• Docket Number: No. 21688,21688
• Citation: 426 P.2d 180,162 Colo. 358
• Parties: Daniel ORTEGA, also known as Danny Ortega, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.
• Court: Colorado Supreme Court

Page 180

426 P.2d 180

162 Colo. 358

Daniel ORTEGA, also known as Danny Ortega, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.

No. 21688.

Supreme Court of Colorado, In Department.

April 17, 1967.

Bellinger, Faricy & Tursi, Pueblo, for plaintiff in error.

Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., Robert C. Miller, Asst. Atty. Gen., Denver, for defendant in error.

PRINGLE, Justice.

Daniel Ortega, also known as Danny Ortega, was tried and convicted of aggravated robbery. From the judgment, and the sentence imposed thereon, Ortega brings writ of error. The plaintiff in error will be referred to as defendant or by name, and the defendant in error as the People.

The Broadway Liquor Store in Pueblo, Colorado, was held up by a lone gunman at about 7:30 p.m. on January 10, 1964. At about 11:00 a.m. on January 11, 1964, Ortega was found hiding in an attic in a house in Pueblo. No gun or other extrinsic evidence connecting Ortega to the robbery was found. He was arrested, tried, and convicted of the robbery of the liquor store. Ortega testified at the trial that he was in Colorado Springs at the time of the robbery and placed his uncle and aunt, residents of Colorado Springs, on the witness stand to support his testimony that he was in their home at the crucial time.

Ortega raises five assignments of error which may be summarized as follows:

(1) The trial court erroneously denied defendant's right to discovery and inspection of documents under Colo.R.Crim.P. 16(b) and (d).

(2) The trial court's instruction on alibi erroneously shifted the burden of proof to the defendant.

(3) The trial court erroneously allowed the People to put on testimony of concealment.

(4) The trial court erroneously instructed on flight when no evidence had been adduced as to flight.

(5) The cumulative effect of minor errors in the trial was such as to deny defendant his right to a fair trial.

I.

Defendant alleges that the trial court erroneously refused to allow him to inspect handwritten notes made by one of the investigating officers when he talked to the chief prosecution witness on the night of the crime in question. At trial, the witness, Mrs. Carlson, testified that the officer had questioned her, that she had related the facts surrounding the robbery him in detail, and that he had taken detailed notes on what she said. Defense counsel then asked that the People be ordered to produce the notes for inspection by the defense. The trial court denied the request. Defense counsel later offered to attempt to prove the existence of the notes and that the notes were in the possession of the prosecution or in the possession of persons in the control of the prosecution. This offer of proof was rejected and the trial court again denied the defendant's request for production of the notes. The issue was raised again in the motion for new trial, and was again rejected.

Rule 16 of the Colorado Rules of Criminal Procedure provides, in part, as follows:

'(b) * * * After a witness called by the State has testified on direct examination, the court shall on motion of the defendant order the prosecuting attorney to produce any statement of the witness in the possession of the prosecuting attorney or under his control which relates to the subject matter to which the witness has testified. * * *

'(d) * * * The term 'statement' as used in subsections (b) and (c) of this section in relation to any witness called by the State means: * * *

'(3) stenographic or written statements or notes which are in substance recitals of an oral statement made by such witness and which were reduced to writing contemporaneously with the making of such oral statement.'

The People agree that if it was error to refuse to permit inspection of the notes, then that error was prejudicial. They contend, however, that the defendant did not lay a sufficient foundation to require the court to order production of the notes. The People claim that the defendant did not show that the notes were in the possession or control of the prosecution, or were even in existence at the time of trial. They further assert that it would be absurd to require the prosecuting attorney to produce statements or notes which he cannot produce. We have, of course, held that it is not error to refuse to order production of a Non-existing document. Oaks v. People, Colo., 424 P.2d 115; Hopper v. People, 152 Colo. 405, 382 P.2d 540. But that is not this case. The defendant elicited testimony that notes Were taken of the oral statements made by a witness later called by the prosecution at trial. The issue of the identity of the robber who held up this store was the crucial one in the case. It was important that the accused know whether the witness had made statements describing the robber to the police different than those she made subsequently at the trial. Defense counsel made an offer of proof as follows:

'I would make a proffer that at the scene of the incident Mrs. Carlson made an oral statement which was reduced in writing by a member of the police department containing substantially those remarks made by her at that time; that these notes were then incorporated into the police report, and that said police report is in either the custody or under the control or obtainability of the District Attorney, and that failure to produce said notes has been detrimental to the case of the defendant.'

The trial court refused to permit defendant to make the proof he offered. There is some indication in the record that the offer was refused because the alleged notes were not in the physical possession of the district attorney or his staff but were in the possession of the police. This position is not tenable. We now hold that statements in the possession of the police in the county or district of the trial are within the 'possession or control' of the prosecuting attorney so as to meet the requirement of Rule 16. See, Battalino v. People, 118 Colo. 587, 199 P.2d 897.

In the trial court, the district attorney contended also that notes made by a police officer of oral statements made to him by a witness do not come within the term 'statement' as defined in Rule 16(d)(3).

Colo.R.Crim.P. 16 contains substantially the same language as the Jencks Act, 18 U.S.C. § 3500 (1957). The Jencks Act has been interpreted to include not only materials which have been signed or adopted by the government's witness, Campbell v. United States, 365 U.S. 85, 81 S.Ct. 421, 5 L.Ed.2d 428; Campbell v. United States, 373 U.S. 487, 83 S.Ct. 1356, 10 L.Ed.2d 501, but also notes taken by officers when talking to the witness. Williams v. United States, 119 U.S.App.D.C. 177, 338 F.2d 286 (1964); Papworth v. United States, 256 F.2d 125 (5th Cir. 1958), cert. denied 358 U.S. 854, 79 S.Ct. 85, 3 L.Ed.2d 88; rehearing denied, 358 U.S. 914, 79 S.Ct. 239, 3 L.Ed.2d 235; United States v. Waldman, 159 F.Supp. 747 (D.C.N.J.1958). All that is required by the Jencks Act, and all that is required by the language of Colo.R.Crim.P. 16(d)(3) is that the notes be Substantially verbatim recitals of the oral statement.

Numerous federal cases have held that the notes must not contain the interpretations, impressions, comments,...