People v. Brake

Decision Date23 August 1976
Docket NumberNo. 26547,26547
Citation553 P.2d 763,191 Colo. 390
PartiesThe PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Thomas Edward BRAKE, Defendant-Appellant.
CourtColorado Supreme Court

William H. Prendergast, Lakewood, for defendant-appellant.

J. D. MacFarlane, Atty. Gen., Jean E. Dubofsky, Deputy Atty. Gen., Edward G. Donovan, Sol. Gen., Robert C. Lehnert, Asst. Atty. Gen., Denver, for plaintiff-appellee.

PRINGLE, Chief Justice.

The appellant, Thomas Brake, brings this appeal from a conviction of assault in the first degree. We remand.

The appellant was arrested in the early morning hours of September 10, 1973, in connection with an assault on a young woman that had taken place earlier in the morning. The victim, Jane Candelario, had been assaulted at about 2:15 a.m. in the vicinity of East Third Avenue and Emerson Street, in the City and County of Denver, while walking home from her boy friend's house. The assailant apparently attempted to steal Miss Candelario's purse and when she resisted she was stabbed in the chest, back and legs. A description of one of two possible suspects was given to the police and witnesses provides a description of a light-colored, early model Rambler with dark paneling, which had been observed in the vicinity.

At approximately 3:30 a.m. the same morning, the police stopped a light-colored early model Rambler, near the scene of the assault. In the vehicle were Roger Wadlington and the appellant; a hunting knife was found under the front seat of the vehicle, with what appeared to be blood on the blade. Wadlington and the appellant were taken into custody.

The day after the arrest, the appellant signed a written confession, and two days after the arrest a second statement was made by the appellant. The appellant raises ten different grounds for reversal.


First, the appellant contends that the knife, seized at the time of the arrest, was improperly admitted into evidence, since it was obtained as the result of an illegal search. The appellant asserts that the arrest itself was illegal and therefore the seizure of the knife cannot be justified.

We believe, however, that at the time the knife was seized the officer had probable cause to arrest the appellant. Testimony at trial indicated that the automobile and one of its occupants matched the description of the Rambler and one suspect given the police. Furthermore, the car was stopped in the vicinity of the assault, in the early morning hours, approximately one hour after the attack. Under these circumstances, the police possessed probable cause to arrest the appellant before the knife was seized.

In People v. Lucero, 182 Colo. 39, 511 P.2d 468 (1973), the police stopped a car near the scene of a robbery. The car matched the description of one seen at the site of the robbery. Approaching the car, the police officer observed that one of the car occupants matched the description of a suspect. In upholding the seizure of evidence from underneath the front seat of the car, we stated:

'Having corroborated both descriptions by his own independent observations, Officer Jones at that point had probable cause to arrest the defendant and search the vehicle.' 182 Colo. at 44, 511 P.2d at 471. (Citation omitted.)

Likewise, here the police had probable cause to arrest the appellant for the crime charged, and therefore seizure of the knife from the vehicle was lawful. See Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); People v. Nanes, 174 Colo. 294, 483 P.2d 958 (1971).


The appellant next contends that the trial judge improperly refused to allow voir dire of a prospective juror concerning whether school violence was one of the juror's reasons for leaving the teaching profession. The appellant asserts that since the alleged crime involved violence, it was material to know the juror's views about violence.

The propriety of questions to potential jurors on voir dire is within the discretion of the trial court, and its ruling will not be disturbed on appeal unless an abuse of discretion is shown. People v. Buckner, 180 Colo. 65, 504 P.2d 669 (1972); Washington v. People, 169 Colo. 323, 455 P.2d 656 (1969). In this regard, we note that the trial judge did permit defense counsel to ask the juror a question concerning her views toward violent crime. Thus, the trial judge did not abuse his discretion in this matter. Nor was the appellant denied a fair trial or due process of law as a result of the trial court ruling.


The appellant contends that the trial court erred in permitting the prosecution to endorse Roger Wadlington, the codefendant, as a witness on the day of trial. Wadlington testified against the appellant the same day.

The allowance of late endorsements of witnesses also lies within the discretionary power of the trial court. People v. Buckner, supra; Corbett v. People, 153 Colo. 457, 387 P.2d 409 (1963). The record in the instant case indicates that defense counsel was not caught by surprise by the requested late endorsement. Defense counsel stated that he was 'preparing both ways' concerning whether Wadlington would or would not testify. Moreover, the appellant does not contend that the reason for the delay in endorsing Wadlington was attributable to carelessness or bad faith by the district attorney. Plea negotiations with Wadlington were in progress and were not finalized until the day of trial. In these circumstances, the trial court did not abuse its discretion by permitting the late witness endorsement. See also Goldsberry v. People, 149 Colo. 431, 369 P.2d 787 (1962). Thus, this case is very different from Kloberdanz v . People, 95 Colo. 30, 31 P.2d 1111 (1934), relied upon by the appellant, where we referred to the 'prejudice . . . of substantial rights' and the fact that the district attorney gave no reason for the delay in endorsement.


The appellant argues that the trial judge should have granted his motion for judgment of acquittal following the prosecutor's opening statement. The appellant asserts that the opening statement failed to state a case. A review of the record indicates otherwise. The trial judge did not err in this regard. See Mora v. People, 172 Colo. 261, 472 P.2d 142 (1970); People v. Gomez, 131 Colo. 576, 283 P.2d 949 (1955).


Next, the appellant asserts that certain photographs of the vicinity of the crime were improperly admitted into evidence, both because an inadequate foundation was laid identifying the photographs and because they were of no probative value. The appellant further contends that admission of the knife and the knife sheath was improper, since they were not adequately identified since a chain of custody was not established, and since they were not connected with the crime.

The photographs were admitted into evidence after having been identified by Mrs. Marjorie Olson, a witness for the prosecution. Mrs. Olson lived in the vicinity of the crime and awoke early on the morning of September 10, 1973, after hearing screams. She observed the Rambler automobile, and heard cries for help from the victim. Mrs. Olson instructed her husband to call the police and was present with the victim after the police arrived. Mrs. Olson identified the photographs, Exhibits G and J, as being respectively, the front door of a building in the vicinity of the crime, and the street corner of Speer and Emerson, also in the vicinity of the assault.

The photographs were sufficiently identified to be admitted as evidence and, furthermore, they were admissible under the rules governing relevancy. It is well established that photographs may be used to portray, among other things, the scene of the crime. Young v. People, 175 Colo. 461, 488 P.2d 567 (1971).

Likewise, the knife and knife sheath properly were admitted into evidence. The police officer who seized the knife and sheath testified at trial that the knife and sheath, presented as Exhibit K--3, were the same knife and sheath seized by him. When pressed on the matter, he stated that the exhibits 'appeared to be the same' items as those which he seized during the arrest. The trial judge ruled that the sheath was admissible, but held that the knife was not sufficiently identified and had to be admitted pursuant to chain of custody testimony. After testimony relating to chain of custody, the trial judge admitted the knife.

We believe both items, the knife and sheath, were sufficiently identified by the police officer to be admissible without showing a chain of custody. See Claxton v. People, 164 Colo. 283, 434 P.2d 407 (1967); Bustos v. People, 158 Colo. 451, 408 P.2d 64 (1965).

In any event, the knife was admissible since a proper chain of custody was shown. The knife and sheath, after the seizure, were placed in a lock seal envelope by Officer Reed and marked. The envelope was deposited with the police custodian's office. The lock seal envelope was transported to the Denver Forensic Laboratory, where an Officer Shaffer picked up the lock seal envelope and delivered it to the Colorado Bureau of Investigation. When the envelope was received at the C.B.I. the seal was unbroken. From the C.B.I. to the trial, the chain of custody was undisputedly established.

The appellant asserts that a break in chain of custody exists, since no one was able to state who removed the envelope from the custodian's office and took it to the forensic laboratory. However, the envelope seal was unbroken; therefore, the chain of custody was not deficient. People v. Atencio, Colo., 529 P.2d 636 (1974).

Further, the knife was adequately connected to the crime, since the codefendant, Wadlington, testified that the appellant removed a knife similar to Exhibit K--3 from the glove compartment of the auto prior to the attack. The victim was later found bleeding, and, according to Wadlington, when the appellant re-joined Wadlington, after his encounter with the victim, the knife was covered with blood. Certainly, this...

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