People v. Broncucia

Citation189 Colo. 334,540 P.2d 1101
Decision Date15 September 1975
Docket NumberNo. 26557,26557
PartiesThe PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Anthony L. BRONCUCIA, Defendant-Appellant.
CourtSupreme Court of Colorado

John D. MacFarlane, Atty. Gen., Jean E. Dubofsky, Deputy Atty. Gen., James W. Wilson, Asst. Atty. Gen., Dale Tooley Dist. Atty., Brooke Wunnicke, Chief App.Deputy Dist. Atty., Denver, for plaintiff-appellee.

Edward B. Towey, Ruthanne Gartland, Denver, for defendant-appellant.

GROVES, Justice.

This is a companion case to People v. Ciari, Colo., 540 P.2d 1094, and People v. Quintana, Colo., 540 P.2d 1097, announced contemporaneously with this opinion. Defendant appeals from convictions of perjury, and conspiracy to commit perjury. We reverse as to the perjury conviction and affirm as to the conspiracy conviction.

An extradition hearing was held upon one Griswold's application for a writ of habeas corpus contesting Griswold's extradition to Nevada for criminal proceedings against him involving an alleged 'diamond switch.' The evidence shows that the defendant gave Griswold a receipt for expenses resulting from a birthday party which was supposed t have been held at the defendant's place of business, Mickey's Inn, in Denver on February 7, 1970. The receipt was introduced at the extradition hearing for the purpose of showing Griswold's presence in Denver on the day of the alleged diamond switch. Although defendant declined to testify at the extradition hearing, he did testify at subsequent grand jury proceedings. This testimony, the People allege, corroborated the testimony given by alleged co-conspirators at the extradition hearing, all of which supported Griswold's alibi.

The resulting grand jury indictment, alleged that defendant committed perjury by testifying falsely before the Denver Grand Jury as follows:

'Q Specifically, Mr. Broncucia, relating to the date of February 7th, did you see Mr. Griswold on that date?

'A Well, if you can allow me to explain a little bit.

'Q Yes, if you would, please.

'A I don't particularly know whether that's the particular date. I know he was there on a Saturday, but actually the date, I don't recall it, you know.

'Q I see. What do you recall about whatever date it was that he was there?

'A Well, they were there, and he had a party. I believe it was a birthday party for his girlfriend or wife.

'Q Would that be Linda Wilson?

'A I don't know.

'Q Could you describe that girlfriend?

'A I sure couldn't.

* * *

* * *

'Q Did you know any of the people there?

'A Yes, some of them.

'Q And who were the names that you recall?

'A Robert Quintana was present, but I wasn't--I am divorced, and I get my child weekly, and I wasn't present at the party all day long or anything. I just--

* * *

* * *

'Q Do you recall what kind of a party it was specifically?

'A It was a birthday party.

'Q Now, let me make sure before we conclude that I understand your testimony. Your testimony is that on the date of the party in February 1970--and you are not sure whether that's the 7th, but you are sure it's a Saturday--

'A I'm sure it's on a Saturday, and I'm almost sure it's February. I guess I could be wrong and it could be the last Saturday of January or something like that, but--

'Q But there was a party Mr. Griswold gave for some young lady and at this party you gave him a receipt before he left Mickey's Inn that date?

'A Yeah.

'Q And the receipt is not the same receipt as we have here today before you, Grand Jury Exhibit A?

'Q That you did give him a receipt on that date?

'A I gave him a receipt on the day of the party.'

I

Defendant contends that the perjury charge failed to set forth with sufficient specificity the falsity of the defendant's statements so as to enable him to prepare his defense. We agree.

The device by which the defendant was charged with perjury in the indictment was a verbatim partial transcript of the defendant's actual testimony before the grand jury. There was no averment of fact to demonstrate the falsity of the testimony on which the charge was based. The failure to aver the true facts has been held to be proper when the truth of the disputed matter was clear by 'necessary implication' so that the defendant will be apprised of the reasons for his statements being charged as false. People v. Mazza, 182 Colo. 166, 511 P.2d 885 (1973). Here, however, in the light of the defendant's equivocations and the failure of the People to prove the falsity of the defendant's eqivocal testimony, his conviction of perjury cannot stand.

II

The defendant asserts that the charge in Count Ten is fatally defective in that it is duplicitous, I.e., it charges two separate and distinct crimes of conspiracy in one count. See Marrs v. People, 135 Colo. 458, 312 P.2d 505 (1957). Count Ten charged a conspiracy to commit perjury between February 7, 1970, and August 1, 1973. He contends that Count Ten in fact charges two separate and distinct conspiracies: one, to commit perjury at the extradition hearing, and, two, to commit perjury during the grand jury proceedings. He argues that the object of the first conspiracy was to prevent the...

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11 cases
  • People v. Wester-Gravelle
    • United States
    • Colorado Court of Appeals
    • 28 Junio 2018
    ..., 306 F.3d at 415 ; Melina v. People , 161 P.3d 635, 644 (Colo. 2007) (Coats, J., concurring in the judgment only); People v. Broncucia , 189 Colo. 334, 337, 540 P.2d 1101, 1103 (1975). ¶ 10 The charged crimes are "separate" if each requires the proof of an additional fact that the other do......
  • People v. Gable
    • United States
    • Colorado Court of Appeals
    • 4 Marzo 1982
    ...latitude is allowed in drafting a conspiracy indictment. People v. Goetz, 41 Colo.App. 60, 582 P.2d 698 (1978). Cf. People v. Broncucia, 189 Colo. 334, 540 P.2d 1101 (1975), cert. denied, 431 U.S. 937, 97 S.Ct. 2647, 53 L.Ed.2d Here, the indictment alleged that 17 named defendants, of which......
  • People v. Vigil
    • United States
    • Colorado Court of Appeals
    • 15 Julio 2010
    ...the money or property allegedly converted and failed to indicate how the money or property was used); People v. Broncucia, 189 Colo. 334, 336–37, 540 P.2d 1101, 1103 (1975) (perjury charge was fatally defective because it “failed to set forth with sufficient specificity the falsity of the d......
  • People v. Buckallew
    • United States
    • Colorado Supreme Court
    • 15 Marzo 1993
    ...235, 557 P.2d 1195, 1197-98 (Colo.1976). The offense of issuing a false certificate is such an offense. Cf. People v. Broncucia, 189 Colo. 334, 336-37, 540 P.2d 1101, 1103 (1975), cert. denied, 431 U.S. 937, 97 S.Ct. 2647, 53 L.Ed.2d 254 (1977) (perjury indictment failed to charge an offens......
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