People v. Bennett, No. 25325

• Docket Nº: No. 25325
• Citation: 183 Colo. 125, 515 P.2d 466
• Case Date: October 29, 1973
• Court: Supreme Court of Colorado

Page 466

515 P.2d 466 183 Colo. 125 The PEOPLE of the State of Colorado, Plaintiff-Appellee,
v.
Edward R. BENNETT, Defendant-Appellant. No. 25325. Supreme Court of Colorado, En Banc. Oct. 29, 1973.
Rehearing Denied Nov. 19, 1973.

[183 Colo. 128]

Page 467

Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., E. Ronald Beeks, Asst. Atty. Gen., Denver, for plaintiff-appellee.

Rollie R. Rogers, State Public Defender, J. D. MacFarlane, Chief Deputy State

Page 468

Public Defender, Thomas M. Van Cleave III, Deputy State Public Defender, denver, for defendant-appellant.

ERICKSON, Justice.

A jury convicted defendant-appellant, Edward R. Bennett, for possession of a dangerous drug, LSD (1969 Perm.Supp., C.R.S.1963, 48--8--2), and for possession of a narcotic drug, marijuana (C.R.S.1963, 48--5--2). On appeal, the defendant asserts that he is either entitled to a judgment of acquittal or a new trial. We affirm.

I.

The Facts

The events which led to the filing of charges against the defendant focused on a box which contained marijuana and LSD. The box had been shipped from Los Angeles to James F. Cooper at a Denver address. The person who delivered the box to the airline for shipment attracted the attention of the [183 Colo. 129] airline's freight agent by his appearance, his nervous mannerisms, and his request that the box be sent on a particular flight. As a result of recent bomb threats against aircraft, the freight agent suspected that the box contained a bomb and, in accordance with Civil Aeronautics Board Regulations, directed that the package be searched. The search produced the narcotics and dangerous drugs in issue, rather than a bomb. When the drugs were found, the freight agent notified the Los Angeles police, who, in turn notified the Denver police who arranged for a stakeout.

When the box arrived in Denver, the defendant appeared at the air freight office, signed for the package under the name of James F. Cooper, produced identification cards to prove his identity, and left the freight office with the box. The police stopped the defendant as he was entering his car, advised him that he was under arrest for possession of narcotics and dangerous drugs, and conducted a search of his person which produced a draft card and a credit card issued in the name of James F. Cooper. The defendant denied that he knew what was in the box and when told that the box contained marijuana and LSD said that he had been 'set up,' and did not want to talk about it. The defendant also informed the police that he was not Cooper.

The prosecution produced the evidence which we have summarized and rested its case. The defendant moved for a judgment of acquittal, and when his motion was denied rested his case. In determining whether the trial court should have granted the defendant's motion for a judgment of acquittal or a new trial, for prosecutorial misconduct, we must review the law in depth.

II.

Motion for a Judgment of Acquittal

When a trial judge is confronted with a motion for a judgment of acquittal at either the close of the prosecution's case or the close of all of the evidence, he must determine whether the evidence before the jury is sufficient in both quantity and quality to submit the issue of the defendant's guilt or innocence to the jury. The duties of the trial judge [183 Colo. 130] are set out in the American Bar Association Standards for Criminal Justice Relating to Trial by Jury:

'4.5 Motion for judgment of acquittal.

'(a) After the evidence on either side is closed, the court on motion of a defendant or on its own motion shall order the entry of a judgment of acquittal of one or more offenses charged if the evidence is insufficient to sustain a conviction of such offense or offenses. Such a motion by the defendant, if not granted, shall not be deemed to withdraw the case from the jury or to bar the defendant from offering evidence.

'(b) If the defendant's motion is made at the close of the evidence offered by the prosecution, the court may not reserve decision on the motion. If the defendant's motion is made at the close of all the evidence, the court may

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reserve decision on the motion, submit the case to the jury and decide the motion either before the jury returns a verdict or after it returns a verdict of guilty or is discharged without having returned a verdict.'

To withstand a motion for a judgment of acquittal, the prosecution has the burden of establishing a prima facie case of guilt and must introduce '. . . sufficient evidence to establish guilt beyond a reasonable doubt, no more, no less, . . .' Corbett v. People, 153 Colo. 457, 387 P.2d 409 (1963). In passing upon a motion for a judgment of acquittal, the trial judge should not attempt to serve as a thirteenth juror or invade the province of the jury, but should prevent a case from being submitted to the jury when the prosecution has failed to meet its burden of proof.

The issue before the trial judge is whether the relevant evidence, both direct and circumstantial, when viewed as a whole and in the light most favorable to the prosecution, is substantial and sufficient to support a conclusion by a reasonable mind that the defendant is guilty of the charge beyond a reasonable doubt. United States v. Ortiz, 445 F.2d 1100 (10th Cir. 1971), cert. denied, 404 U.S. 993, 92 S.Ct. 541, 30 L.Ed.2d 545 (1971); Lewis v. United States, 420 F.2d 1089 (10th Cir. 1970); Curley v. United States, 81 U.S.App.D.C. 389, 160 F.2d 229 (1947), cert. denied, 331 U.S. [183 Colo. 131] 837, 67 S.Ct. 1511, 91 L.Ed. 1850 (1947). The substantial evidence test which we have stated and now...