People v. Broncucia
Citation | 189 Colo. 334,540 P.2d 1101 |
Decision Date | 15 September 1975 |
Docket Number | No. 26557,26557 |
Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Anthony L. BRONCUCIA, Defendant-Appellant. |
Court | Supreme 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.
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.
'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?
* * *
* * *
'Q Do you recall what kind of a party it was specifically?
'A It was a birthday party.
'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.'
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.
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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..., 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......
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