People v. Angel, 83CA1196
| Decision Date | 04 April 1985 |
| Docket Number | No. 83CA1196,83CA1196 |
| Citation | 701 P.2d 149 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Eugene D. ANGEL, Defendant-Appellant. . III |
| Court | Colorado Court of Appeals |
Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Roger Morris, Sp. Asst. Atty. Gen., Denver, for plaintiff-appellee.
David F. Vela, Colorado State Public Defender, Jess M. Perez, Deputy State Public Defender, Denver, for defendant-appellant.
The defendant, Eugene D. Angel, appeals from the judgment of conviction entered following a jury verdict finding him guilty of second degree burglary and theft. We affirm.
The prosecution's evidence showed that after returning from a brief shopping trip, the victims discovered their home had been broken into and many items had been stolen. The defendant, who lived next door, was identified by the victims as the person seen on the sidewalk in front of their house as they left to go shopping. Immediately after the victims discovered the burglary, the defendant entered the household to inquire as to what was wrong. Although the defendant entered the victims' house, the victims testified that he came in only two or three steps and did not touch anything while in the house. The victims also testified that defendant had not been in the house at any other time. Police officers investigating the crime scene testified that they discovered a fingerprint that matched the defendant's fingerprints on a broken beer stein in the front room. The defendant produced evidence that he had often visited the victims' home on a social basis.
The defendant first contends that the court erred in ordering defendant to give nontestimonial evidence (fingerprints) after the trial commenced. We disagree.
The day before trial, the prosecutor asked the defendant to stipulate that the 1975 fingerprint card in the possession of the police contained his fingerprints. The defendant refused and was informed at that time that the prosecutor would seek an order to obtain his fingerprints the day of trial. On the day of trial, the prosecutor orally moved for an order pursuant to Crim.P. 16(II)(a)(1) for defendant to submit to fingerprinting. The prosecutor did not submit an affidavit setting forth the grounds for his request and did not state special circumstances to justify his request.
The defendant contends that the prosecution had to comply with the procedures set forth in Crim.P. 41.1 to obtain the evidence sought, including filing an affidavit setting forth the grounds for its request and stating special circumstances to obtain this evidence during trial. The trial court concluded that Crim.P. 16(II)(a)(1) provided the proper procedure for dealing with the prosecution's discovery request and also found that defendant was given adequate notice of the prosecution's request pursuant to Crim.P. 16(II)(a)(2).
Crim.P. 16(II)(a)(1) provides:
"Notwithstanding the initiation of judicial proceedings, and subject to constitutional limitations, upon request of the prosecuting attorney, the court may require the accused to give any nontestimonial identification as provided in Rule 41.1(h)(2)."
This rule does not require an affidavit or a showing of special circumstances to require a defendant to give nontestimonial identification evidence during a trial.
Once judicial proceedings against a defendant have been initiated, a prosecution request for nontestimonial identification evidence is governed by Crim.P. 16(II)(a)(1). People v. District Court, 664 P.2d 247, (Colo.1983) (fn. 5). The reference in this rule to Crim.P. 41.1(h)(2) defines the types of nontestimonial identification evidence covered by the rule.
Accordingly, because judicial proceedings had begun against defendant, Crim.P. 16(II)(a)(1) applied. And, contrary to defendant's argument, this rule does not require a prosecutor to obtain a separate Crim.P. 41.1 order to compel defendant to provide the evidence sought. Because the notice requirements of Crim.P. 16(II)(a)(2) were complied with, the trial court did not err in granting the prosecution's discovery request.
We also disagree with the defendant's contention that the trial court erred in denying his motion for judgment of acquittal at the close of all evidence.
He argues that if the sole evidence linking a defendant to the commission of a crime is fingerprint evidence, the trial court must grant a motion for judgment of acquittal if the evidence raises a possibility that the fingerprint was impressed at a time other than the time of the crime.
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People v. Luna-Solis
...initiated, seePeople v. District Court, 664 P.2d 247, 250 n.5 (Colo.1983), and cited with approval the decision in People v. Angel, 701 P.2d 149, 150–51 (Colo.App.1985), interpreting that statement to relieve the prosecutor and court of compliance with the requirements of Crim. P. 41.1 once......
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People v. Clark
...the defendant had never been an invited guest, were found sufficient to convict for second degree burglary and theft in People v. Angel, 701 P.2d 149, 151 (Colo.App.1985). However, a defendant's fingerprints found on the milk chute of a burglarized home, where the prosecution produced no ev......
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People v. Harland
...232 P.3d at 1292–94 (DNA evidence supported conviction where it was found on a sweatshirt inside the victim's home); People v. Angel, 701 P.2d 149, 151 (Colo.App.1985) (evidence was sufficient where the defendant's fingerprint was found inside a burglarized home into which he had never been......
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People v. Diaz
...incorporates by reference Crim. P. 41.1(h)(2). See People v. District Court, 664 P.2d 247, 250 n. 5 (Colo.1983); People v. Angel, 701 P.2d 149, 150-51 (Colo.App.1985). ...