People v. Bastardo, No. 26551

Docket NºNo. 26551
Citation554 P.2d 297, 191 Colo. 521
Case DateSeptember 13, 1976
CourtSupreme Court of Colorado

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.

[191 Colo. 522]

Page 299

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.

[191 Colo. 523] Defendant Juan 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.

[191 Colo. 524] 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

Page 300

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, 39-10-201 at 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...

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25 practice notes
  • People v. Phillips, No. 08CA2013.
    • United States
    • Colorado Court of Appeals of Colorado
    • October 25, 2012
    ...to sift the conscience of the witness, and to test his recollection to see if his story is worthy of belief.” People v. Bastardo, 191 Colo. 521, 524, 554 P.2d 297, 300 (1976), abrogated in part on other grounds by Fry, 92 P.3d at 976. ¶ 80 Our supreme court has stated that the essence of th......
  • Stevens v. People, No. 99SC121.
    • United States
    • Colorado Supreme Court of Colorado
    • June 25, 2001
    ...in criminal proceedings.53 Mattox v. United States, 156 U.S. 237, 242-43, 15 S.Ct. 337, 39 L.Ed. 409 (1895); People v. Bastardo, 191 Colo. 521, 524, 554 P.2d 297, 300 (1976). The framers of the Constitution sought to prohibit the use by the Government 29 P.3d 331 of ex parte affidavits by p......
  • Topping v. People, No. 88SC392
    • United States
    • Colorado Supreme Court of Colorado
    • June 25, 1990
    ...688 P.2d 231 (Colo.1984); People v. Bowman, 669 P.2d 1369 (Colo.1983); People v. Dement, 661 P.2d 675 (Colo.1983); People v. Bastardo, 191 Colo. 521, 554 P.2d 297 11 At the commencement of voir dire Topping's attorney informed the potential jurors that Topping was not contending that no sex......
  • People v. Fry, No. 03SC98.
    • United States
    • Colorado Supreme Court of Colorado
    • June 28, 2004
    ...Confrontation Clause is designed to ensure that convictions are not obtained through the use of ex parte affidavits. People v. Bastardo, 191 Colo. 521, 524, 554 P.2d 297, 300 (1976); see also Crawford, ___ U.S. ___, ___, 124 S.Ct. 1354, 1363-64, 158 L.Ed.2d 177. We have recognized that test......
  • Request a trial to view additional results
25 cases
  • People v. Phillips, No. 08CA2013.
    • United States
    • Colorado Court of Appeals of Colorado
    • October 25, 2012
    ...to sift the conscience of the witness, and to test his recollection to see if his story is worthy of belief.” People v. Bastardo, 191 Colo. 521, 524, 554 P.2d 297, 300 (1976), abrogated in part on other grounds by Fry, 92 P.3d at 976. ¶ 80 Our supreme court has stated that the essence of th......
  • Stevens v. People, No. 99SC121.
    • United States
    • Colorado Supreme Court of Colorado
    • June 25, 2001
    ...in criminal proceedings.53 Mattox v. United States, 156 U.S. 237, 242-43, 15 S.Ct. 337, 39 L.Ed. 409 (1895); People v. Bastardo, 191 Colo. 521, 524, 554 P.2d 297, 300 (1976). The framers of the Constitution sought to prohibit the use by the Government 29 P.3d 331 of ex parte affidavits by p......
  • Topping v. People, No. 88SC392
    • United States
    • Colorado Supreme Court of Colorado
    • June 25, 1990
    ...688 P.2d 231 (Colo.1984); People v. Bowman, 669 P.2d 1369 (Colo.1983); People v. Dement, 661 P.2d 675 (Colo.1983); People v. Bastardo, 191 Colo. 521, 554 P.2d 297 11 At the commencement of voir dire Topping's attorney informed the potential jurors that Topping was not contending that no sex......
  • People v. Fry, No. 03SC98.
    • United States
    • Colorado Supreme Court of Colorado
    • June 28, 2004
    ...Confrontation Clause is designed to ensure that convictions are not obtained through the use of ex parte affidavits. People v. Bastardo, 191 Colo. 521, 524, 554 P.2d 297, 300 (1976); see also Crawford, ___ U.S. ___, ___, 124 S.Ct. 1354, 1363-64, 158 L.Ed.2d 177. We have recognized that test......
  • Request a trial to view additional results

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