People v. Bastardo

• Decision Date: 13 September 1976
• Docket Number: No. 26551,26551
• Citation: People v. Bastardo, 554 P.2d 297, 191 Colo. 521 (Colo. 1976)
• Parties: The PEOPLE of the State of Colorado, Plaintiff-appellee, v. Juan BASTARDO, Defendant-Appellant.
• Court: Colorado Supreme Court

Page 297

554 P.2d 297

191 Colo. 521

The PEOPLE of the State of Colorado, Plaintiff-appellee, v.Juan BASTARDO, Defendant-Appellant.

No. 26551.

Supreme Court of Colorado, En Banc.

Sept. 13, 1976.

John P. Moore, Atty. Gen., John E. Bush, Deputy Atty. Gen., Patricia W. Robb, E. Ronald Beeks, David K. Rees, Asst. Attys.Gen., Denver, for plaintiff-appellee.

Rollie R. Rogers, Colorado State Public Defender, James F. Dumas, Jr., Chief Deputy State Public Defender, T. Michael Dutton, Deputy State Public Defender, Denver, for defendant-appellant.

LEE, Justice.

DefendantJuan Bastardo was convicted of murder in the first degree of Robert A. Rivera and of murder in the second degree of Mike Armijo.We affirm the convictions.

The homicides occurred during the early morning hours of March 23, 1972.The People's evidence revealed that the two victims and a friend named Stanley Renner and defendant were in a bar.At approximately the time the bar closed, Rivera, Armijo, and Renner departed from the bar and got into Rivera's white Cadillac.Armijo, who had been drinking heavily, told Rivera, who was driving, to drive around the block.After circling the block, the car stopped near the bar.Armijo got out and approached defendant as the latter left the bar.Armijo struck at defendant, and several shots were heard.Armijo collapsed.Defendant then walked over to the car and fired into it at point blank range, fatally wounding Rivera.Defendant then ran from the scene.He was not apprehended until a year later, in California.He waived extradition and was returned to Colorado for trial.

Trial commenced initially on October 15, 1973, and on that date a jury was selected and sworn, and the prosecution commenced the presentation of evidence.Among those called was Stanley Renner.After Renner's direct testimony, the defense brought to the court's attention that one of the prosecutors had told Renner that the defense was trying to blame the homicide on him (Renner).A hearing was held in chambers and the defense moved for a mistrial on the basis of Renner's possible prejudice against defendant.The court at first denied the motion, but upon re-urging of the motion declared a mistrial for two reasons: first, because of Renner's testimony; and, second, because one of the seated jurors had not been candid with the court on voir dire.

A new trial was commenced on December 10, 1973.At trial, the most critical evidence linking defendant with the killings was the testimony of Rachel Mahaffey and of Mary Lou Trujillo.Both had witnessed the events surrounding the shootings.Mahaffey testified that she heard a shot and saw Armijo fall, and that she then went into shock, becoming oblivious to all that happened.She stated that she saw no weapons, and she denied having seen defendant fire the shots.She also denied seeing defendant approach the Cadillac after the initial shots were fired.The district attorney, however, was permitted to interrogate her about prior inconsistent statements made to police.These statements were to the effect that after Armijo hit him defendant pulled out a gun and shot Armijo.

Trujillo testified that she did not see Armijo shot but heard the shots.She then observed defendant walk to Rivera's car and place 'his hand on the car and put his arm in * * *.'She was then examined about her prior statement in which she had said that defendant had a gun and had shot Rivera.

I.

Defendant's first allegation of error relates to the trial court's rulings whereby the prosecution was permitted to impeach the testimony of its own witnesses Mahaffey and Trujillo by the use of their prior inconsistent statements.It is conceded that the prosecution was not surprised by the changes in their testimony and that the witnesses did not unexpectedly become hostile, Cf.Ware v. People, 76 Colo. 38, 230 P. 123.

Colo.Sess.Laws 1972, ch. 44, 39-10-201at 238, ¹ which was applicable in this case, clearly authorized the use of prior inconsistent statements where a proper foundation was laid.Defendant, however, argues that the better practice would be to make the introduction of such inconsistent statements contingent on the trial court's holding of an In camera hearing at which the prosecution would be required to lay a foundation.Specifically, sugggests defendant, the court should make findings that the proffered statements are in fact inconsistent, that they are based on the direct observations of the witness, and that they are not the result of police coercion or threats of prosecution.The statute did not so require.Its mandate was adequately fulfilled if from all the circumstances it appeared that the prior statement was inconsistent and the statutory conditions were adequately established.As was stated in People v. Hawthorne, Colo., 548 P.2d 124, where we were concerned with a predecessor statute(1971 Perm.Supp., C.R.S.1963, 39-6-12):

'* * * Once (these) statutory requirements were met, a proper foundation for the introduction of the prior inconsistent statement was laid, and the use of the statement by the prosecution was proper.'

See alsoPeople v. Smith, 182 Colo. 228, 512 P.2d 269.

The record establishes that the court required the proper foundation for the use of the prior inconsistent statements and we find no error in the admission thereof.

II.

Defendant next contends that the application of section 39-10-201 violates certain of his constitutional rights, including the right to confront his accusers, to the assistance of counsel, to appear when depositions against him were taken, and to due process of law.U.S.Const. amend. VI;Colo.Const. Art. II, Secs. 16,17and25.We do not agree.

The essence of the right to confront one's accusers is to meet adverse witnesses face-to-face, Colo.Const. Art. II, Sec. 16, and to have opportunity to cross-examine them.Simms v. People, 174 Colo. 85, 482 P.2d 974.The purpose of the rule of confrontation and cross-examination is to prevent conviction by Ex parte affidavits, to sift the conscience of the witness, and to test his recollection to see if his story is worthy of belief, People v. Scheidt, 182 Colo. 374, 513 P.2d 446.In view of the ample pretrial discovery available to defendant and of the actual presence of Mahaffey and Trujillo at trial, defendant had full opportunity to inquire as to their recollection of the events surrounding the homicides and the reasons for changes in their testimony.We do not perceive of any constitutional deprivation under these circumstances.Gaitan v. People, 167 Colo. 395, 447 P.2d 1001.

III.

As heretofore noted, defendant's first trial resulted in a mistrial.On retrial, the witness Stanley Renner was permitted to testify.The defense again objected, again urging that the witness had been unfairly prejudiced by the prosecution.The court allowed the testimony, holding that the matter of the witness' prejudice went to his credibility.

We hold that the court did not abuse its discretion in this matter.The court properly concluded that Renner's possible prejudice was not in itself sufficient to require the exclusion of his testimony, and that whatever prejudice the latter might harbor against defendant could adequately be explored and brought out on cross-examination.Moreover, Renner testified that he could not identify the killer, and when asked if defendant was the assailant he replied, 'I couldn't say if (he) is or isn't.I don't think (he) is.'Any error with respect to the admission of this testimony was at most harmless.Crim.P. 52(a).

In an argument closely related to the previous one, defendant invokes the double jeopardy portion of Colo.Const....