People v. Buckner, 24886

• Decision Date: 30 October 1972
• Docket Number: No. 24886,24886
• Citation: 504 P.2d 669,180 Colo. 65
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. David BUCKNER, aka Tobacco Buckner, et al., Defendants-Appellants.
• Court: Colorado Supreme Court

Page 669

504 P.2d 669

180 Colo. 65

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. David BUCKNER, aka Tobacco Buckner, et al., Defendants-Appellants.

No. 24886.

Supreme Court of Colorado, En Banc.

Oct. 30, 1972.

Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., Patricia W. Robb, Sp. Asst. Atty. Gen., Denver, for plaintiff-appellee.

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

Public Defender, Thomas M. Van Cleave, III, Deputy Public Defender, Kenneth J. Russell, Deputy State Public Defender, Denver, for defendants-appellants.

PRINGLE, Chief Justice.

Defendants below, David Buckner, Anthony Peace, and Richard Dale Swanson, appeal from their conviction for second degree arson and conspiracy to commit the same, in violation of C.R.S.1963, 40--3--2 and C.R.S.1963, 40--7--35. They will hereinafter be referred to as appellants.

With regard to the substantive offense, the People originally charged all appellants with willfully setting fire to a building. One week before trial, the People were granted leave to amend the information by adding to the charge the allegation that the appellants had '. . . aided, counseled, and procured the burning. . . .'

Appellants here contend that several errors compel reversal of their convictions: (1) the trial court erroneously refused to grant appellants' motions for continuance after granting the People leave to amend the information and to endorse five additional witnesses; (2) the trial court failed to rearraign the appellants and allow them to plead to the amended information; (3) the trial court erroneously sustained the district attorney's objection to defense counsel's question upon voir dire to a prospective juror; (4) the trial court erroneously overruled appellants' challenge of another prospective juror for cause; (5) the first paragraph of Jury Instruction 7 inaccurately described the crime of conspiracy; and (6) Instruction 7, in combination with Instructions 1 and 8, violated appellants' rights not to be placed twice in jeopardy for the same offense. We do not regard these arguments as meritorious and affirm the judgment of the district court.

I.

The appellants contend that the trial court's denial of their continuance motions denied them a fair trial in violation of Colo.Const. art. II, § 16 and U.S.Const. Amend. VI and XIV.

Clearly, the propriety of continuance motions is within the sound discretion of the trial court and will not be disturbed on appeal unless that discretion is abused. Lofton v. People, 168 Colo. 131, 450 P.2d 638; Claxton v. People, 164 Colo. 283, 290, 434 P.2d 407. The record reveals no abuse of discretion here, certainly none of constitutional proportions.

The record reveals that, in fact, counsel knew of the proposed amendment some two weeks before trial. As a matter of fact, the trial was reset so as to grant an additional week's continuance after the court had permitted the amendment. The record shows no support for the appellants' contention that they were in any way prejudiced by the denial of an additional continuance. In fact, the amendment added nothing substantial to the original charge, since, in Colorado, one who aids and abets or advises or encourages is deemed and considered a principal, and may be charged as a principal. Martinez v. People, 166 Colo. 524, 444 P.2d 641; Schreiner v. People, 146 Colo. 19, 360 P.2d 443; Mulligan v. People, 68 Colo. 17, 189 P. 5.

With regard to the denial of the continuance motion in response to the endorsement of five additional witnesses for the People, we find no reversible error. The allowance of late endorsements of witnesses lies within the discretionary power of the trial court and rulings therein will be upset only for a clear abuse of discretion. Corbett v. People, 153 Colo. 457, 387 P.2d 409. It is again apparent that appellants were apprised of the names of the witnesses some two weeks before the trial and had ample opportunity to interview them. In any event, two of the five witnesses who were endorsed late testified, and then, only to authenticate or identify pieces of tangible evidence admitted without objection. Under the circumstances, we find no abuse of discretion. See Stoudt v. People, 156 Colo. 568, 400 P.2d 670.

II.

Appellants argue that the trial court's denial of their motion to dismiss for failure to rearraign on the amended information is reversible error. We do not agree. As we have pointed out above, the amendment was not one of substance. But, in any event, when counsel called the court's attention to the supposed defect, during the course of the trial, the trial court followed the provision of Crim.P. 11(e) and entered a plea of not guilty and thereupon the trial proceeded. We find no error.

III.

Appellants present two arguments with regard to voir dire examination which they contend require reversal.

First, it is maintained that the trial court's refusal to permit one particular question during voir dire of one juror constituted reversible error.

In Colorado matters pertaining to the propriety of questions to potential jurors on voir dire are within the discretion of the trial court, and its ruling thereon will not be disturbed on appeal unless an abuse of that discretion is shown. Washington v. People, 169 Colo. 323, 328, 455 P.2d 656; Routa v. People, 117 Colo. 564, 192...