People v. Brown
| Citation | 523 P.2d 986,185 Colo. 272 |
| Decision Date | 24 June 1974 |
| Docket Number | No. 25839,25839 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Keith A. BROWN and Deryl G. Beckel, Defendants-Appellants. |
| Court | Supreme Court of Colorado |
John P. Moore, Atty. Gen., Denver, John E. Bush, Deputy Atty. Gen., E. Ronald Beeks, Patricia W. Robb, Asst. Attys. Gen., for plaintiff-appellee.
Arthur H. Weed, Englewood, for defendants-appellants.
Defendants Keith A. Brown and Deryl G. Beckel were found guilty by a jury of possession of marijuana, possession for sale of marijuana, possession of cocaine, conspiracy to possess narcotic drugs for sale, and conspiracy to possess narcotic drugs, five counts in all. We affirm.
The evidence presented at trial showed that the defendants were living in a rented house at 3611 Decatur Street in Denver. On April 25, 1972, officers of the Denver Police Department executed a search warrant at that address and seized 57.7 ounces of marijuana, a small amount of cocaine, a set of scales, 'kilo wrappers,' and $3,171 in cash. The defendants advance five arguments urging reversal which we shall consider in the order presented.
Defendants first submit that the affidavit in question was not sufficient under the Aguilar-Spinelli test. See Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). The issues presented by defendants here as to the confidential informant's reliability and the allegations of fact giving rise to probable cause to issue the warrant have been answered adversely to defendants in recent decisions of this court. See People v. Vaughns, Colo., 513 P.2d 196 (1973); People v. Baird, Colo., 512 P.2d 629 (1973); People v. Treadway, Colo., 512 P.2d 275 (1973); People v. Ward, Colo., 508 P.2d 1257 (1973); People v. Peschong, Colo., 506 P.2d 1232 (1973). It would serve no useful purpose to repeat what has already been said in the above cited cases.
Defendants argue that it was reversible error for the trial court to refuse to allow their expert to examine a sample of the alleged cocaine in her own lab. Further error is urged as a result of the trial court's refusal to order the production of notes made by the People's expert witness although the results of his tests were made available.
Crim.P. 16 provides in pertinent part:
'(a) Upon motion of a defendant the court may order the attorney for the prosecution to permit the defendant to inspect and copy or photograph.
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'(2) Results or reports of physical or mental examinations, and of scientific tests or experiments made in connection with the particular case, or copies thereof, within the possession, custody or control of the prosecution, the existence of which is known, or by the exercise of due diligence may become known, to the attorney for the prosecution.
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'(c) (1) Upon a showing of materiality to the preparation of the defense, and if the request is reasonable, the court in its discretion may require disclosure to defense counsel of relevant material and information not covered by sections (a) and (b) of this Rule.'
The trial court denied the defense motion in part, but did allow the defense expert to examine a sample of cocaine at the forensic laboratory at Denver General Hospital. It also ordered the disclosure of the test results of the People's expert. This meets the requirements of Crim.P. 16(a). The record does not indicate any abuse of discretion under Crim.P. 16(c).
Defendants next argue that the trial court should have granted their pretrial motion for disclosure of the identity of the informant. The informant, of course, did not testify at either the suppression hearing or at trial.
The defendants based their motion for disclosure on testimony given by the arresting officer at the preliminary hearing. He testified that the conspiracy charge was supported by information from the informant and the circumstantial evidence. As noted above, large quantities of marijuana and drug related paraphernalia were seized from defendants' residence. At trial only the circumstantial evidence was presented. No showing was made nor does it appear from the record that the disclosure of the informant's identity might be helpful or relevant to the defendants' case, nor does it appear that disclosure is essential to a fair determination of the cause.
Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957) is controlling here. In Roviaro it was said:
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353 U.S. at 60--63, 77 S.Ct. at 628.
See McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967); Parlapiano v. District Court, 177 Colo. 36, 492 P.2d 626 (1972). See also People v. Quintana, Colo., 514 P.2d 1325.
Defendants argue that Roviaro mandates disclosure of the informant's identity here. We disagree. The balancing of interests under the facts of this case calls for nondisclosure.
Defendants argue that the bar against double jeopardy, United States Constitution, Amendment V, Colorado Constitution, Article II, Section 18, precludes the conviction of an offense and a lesser included offense where both charges are based on the same criminal transaction. Defendants argue that it was error to refuse their tendered instruction which stated that if the jury found the defendants guilty of possession of narcotic drugs for sale, they must find them not guilty of possession of narcotic drugs. We agree.
In People v. Burgarin, Colo., 507 P.2d 875 (1973), we held that where the defendant was convicted of aggravated robbery, his...
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People v. Davis
...above-quoted statutes indicate, Colorado has adopted this approach as it pertains to conspiracy charges. See also People v. Brown , 185 Colo. 272, 277, 523 P.2d 986, 989 (1974) (noting that Colorado has adopted the above-quoted language from Braverman ), overruled on other grounds by Villaf......
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People v. Davis
...above-quoted statutes indicate, Colorado has adopted this approach as it pertains to conspiracy charges. See also People v. Brown, 185 Colo. 272, 277, 523 P.2d 986, 989 (1974) (noting that Colorado has adopted the above-quoted language from Braverman), overruled on other grounds by Villafra......
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