People v. Adler

• Decision Date: 04 May 1981
• Docket Number: No. 79SA339,79SA339
• Citation: 629 P.2d 569
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Edward S. ADLER, Defendant-Appellant.
• Court: Colorado Supreme Court

Page 569

629 P.2d 569

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Edward S. ADLER, Defendant-Appellant.

No. 79SA339.

Supreme Court of Colorado, En Banc.

May 4, 1981.

Rehearing Denied June 29, 1981.

J. D. MacFarlane, Atty. Gen., Richard F. Hennessey, Deputy Atty. Gen., Mary J. Mullarkey, Sol. Gen., Sarah Scott Sammons, Asst. Atty. Gen., Denver, for plaintiff-Appellee.

G. Philip Bryson, Longmont, for defendant-appellant.

LOHR, Justice.

The defendant, Edward S. Adler, was convicted of felony theft by receiving, section 18-4-410, C.R.S.1973 (1978 Repl. Vol. 8), ¹ in connection with his purchase of a stereo receiver from an undercover policeman. He appealed from that conviction, raising issues concerning a variance between the date of the offense stated in the direct criminal information and the date proved at trial; the judge's conduct during the trial; the sufficiency of the entrapment defense; and the necessary elements of theft by receiving. We affirm the defendant's conviction.

On August 10, 1978, Criss Clinton, a detective in the Greeley police department was working undercover with the Weld County sheriff's office. At the request of sheriff's office investigators, Clinton traveled to Mead, Colorado, on that date to attempt to sell a stereo receiver to the defendant, the proprietor of a small gasoline service station, upon the representation that the receiver had been stolen. In fact, the receiver belonged to the Weld County sheriff's office. The sale was accomplished. The defendant was later arrested and charged by information with felony theft by receiving.

At trial detective Clinton testified that he had hidden an electronic transmitter under his clothing before arriving at the defendant's place of business. Clinton entered the station and began a conversation with a man and a woman who were there at the time. He eventually asked both of these persons whether they knew anyone who would be interested in buying a stereo receiver. They initially answered no, but the woman then stated that one of the boys in the garage might buy the stereo. Approximately fifteen minutes after Clinton had entered the station, the defendant came in from the nearby detached garage and the woman identified him as the owner of the establishment. Detective Clinton then asked the defendant whether he wished to pick up a stereo receiver. The defendant asked how hot the stereo was and Clinton said "it's hot." After this exchange, the defendant returned to the garage building without further comment. Several minutes later Clinton went to the garage where the defendant was working on a tire and again asked him whether he wanted to purchase the stereo or knew anyone who did. The defendant stated that he didn't know much about stereos but that he would have a friend who was present, look at it. The defendant, his friend, and Clinton then went out to the detective's car to examine the stereo. Because of its size and the fact that it was still in the box, the parties decided that the stereo should be taken out of the car and examined in the service station office, and this was done.

Detective Clinton testified that while examining the stereo the defendant appeared to be worried about the serial numbers and asked Clinton whether the stereo was "safe." The detective told the defendant that a friend had obtained the stereo from a warehouse in Denver without the knowledge of the warehouse owners and that because the stereo had been taken before it could be sent to a retail dealer the serial numbers were not listed. After completion of the examination, the defendant asked Clinton how much he wanted for the stereo. When Clinton replied "$75," the defendant said he would give him $50 and "take a chance." The defendant then handed Clinton a fifty dollar bill from his wallet. After the purchase had been made, the detective accompanied the defendant outside and asked whether he would be interested in purchasing other items of electronic equipment. The defendant replied that he would be interested in a color television set. Although the defendant gave Clinton a phone number, he stated that if the detective wanted to contact him further Clinton should do it in person. ²

The defendant testified in his own defense. He stated that for years he had been in the business of buying used appliances and other used property at auctions and flea markets, and reselling these items for a profit. The defendant's version of the transaction in question was that while he had indeed purchased the stereo from Clinton, there had been no mention that it was stolen property until the defendant was handing the money to Clinton. The defendant testified that he then saw no alternative to completing the transaction, as Clinton had his fifty dollars. Parts of this version were corroborated by other defense witnesses who were present at the service station when the events took place. The defendant denied that the conversation with respect to the television set had occurred.

In rebuttal the People offered a tape recording of the transaction. The recording had been made by Weld County's sheriff's department officers based on signals from the transmitter hidden on Clinton. Although the quality of the recording was poor, it tended to support Clinton's testimony as to the time when mention was first made that the stereo had been stolen and as to the conversation about the television set. The case was then submitted to the jury which found the defendant guilty of felony theft by receiving.

I.

The defendant first contends that the offense charged was not proved because the direct criminal information specifies that the offense occurred on August 18, 1978, whereas proof at trial revealed that August 10, 1978, was the relevant date. In the alternative, and for the same reason, he claims that he was not adequately notified of the offense charged. Those arguments are without merit.

In cases where the defendant made no showing that he was impaired in his defense to the charge at trial or in his ability to plead the judgment as a bar to a subsequent proceeding, we have held that a variance between the specific date of the offense as alleged in the information and the date as proved at trial is not fatal. E. g., Marn v. People, 175 Colo. 242, 486 P.2d 424 (1971) (three-day variance); Albritton v. People, 157 Colo. 518, 403 P.2d 772 (1965) (five-day variance); Laycock v. People, 66 Colo. 441, 182 P. 880 (1919) (series of acts, the earliest of which was approximately eighteen months prior to the date charged); see Crim.P. 7(b).

Aside from the fact that the variance in dates was not raised until the defendant's motion for new trial, see Marn v. People, supra, the defendant has not shown that the mistake in any way impaired his ability to defend against the charge ³ or to plead the judgment in bar of further prosecutions for the same offense. See People v. Donachy, 196 Colo. 289, 586 P.2d 14 (1978). The error in the information therefore supplies no ground for reversal.

II.

The defendant next contends that the trial court committed prejudicial error in allowing the prosecution to endorse a witness during the trial. That witness was called to prove that the value of the stereo exceeded $200, thereby establishing the offense as a felony instead of a misdemeanor. See section 18-4-410(3), (4), C.R.S.1973.

Whether the prosecution should be granted leave for the late endorsement of witnesses is a matter within the discretion of the trial court. People v. Bailey, 191 Colo. 366, 552 P.2d 1014 (1976); Gorum v. People, 137 Colo. 1, 320 P.2d 340 (1958). Even where prejudice is shown, granting leave for late endorsement is not reversible error unless the defendant makes a timely request for a continuance which is denied by the trial court. People v. Bailey, supra. Although the trial judge indicated to the defendant that he would grant a continuance after the testimony of the witness had been received if the defendant requested such relief, the defendant did not make such a request. The more troublesome question, however, concerns the defendant's objection to the conduct of the trial judge prior to allowing the prosecution's new witness to be endorsed.

In order to prove that the value of the stereo sold to the defendant exceeded $200, the prosecution had called a deputy from the Weld County sheriff's office who testified that he had purchased the stereo from another law enforcement agency for $234. Before the prosecution rested its case, the trial judge called a noon recess and asked to see the attorneys for both parties. No record was made of the ensuing discussion. Prior to the resumption of the trial, the judge and counsel again met in chambers, this time on the record. The prosecution moved to endorse an additional witness who would testify on the issue of value. Comments from both counsel and the trial judge reflect that during the discussion off the record the trial judge had indicated that the prosecution might not have produced sufficient evidence of value to establish a prima facie case. ⁴ The judge apparently suggested that another witness be called to establish value. The prosecution heeded this suggestion and obtained a witness on the issue during the noon recess. Although the trial judge expressed concern about the prosecution's lack of preparation, he ruled that the witness would be allowed to testify. The court also ruled that the defense would be granted a continuance, if desired, in order to obtain evidence to rebut this testimony. The defendant objected to the late endorsement on grounds that the trial judge had bolstered an otherwise inadequate case for the prosecution and that this conduct had prejudiced the defendant. It is this contention which the defendant renews here.

The general responsibility of a trial judge is explained in Standard 6-1.1, Special Functions of the Trial Judge, I A.B.A. Standards for Criminal Justice, (2d Ed. 1980), as follows:...