People v. Bugarin

• Citation: 507 P.2d 875,181 Colo. 62
• Decision Date: 05 March 1973
• Docket Number: No. 24980,24980
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Jesse S. BUGARIN, Defendant-Appellant.
• Court: Colorado Supreme Court

Page 875

507 P.2d 875

181 Colo. 62

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Jesse S. BUGARIN, Defendant-Appellant.

No. 24980.

Supreme Court of Colorado, En Banc.

March 5, 1973.

As Modified on Denial of Rehearing March 26, 1973.

Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., Aurel M. Kelly, Asst. Atty. Gen., Denver, for plaintiff-appellee.

Gerash & Kaiser, Walter L. Gerash, H. D. Reed, Denver, for defendant-appellant.

ERICKSON, Justice.

Jesse S. Bugarin was charged with aggravated robbery, 1967 Perm.Supp., C.R.S.1963, 40--5--1(2), and assault with intent to murder, C.R.S.1963, 40--2--34, both of which arose out of a single robbery in Denver. He plead not guilty and was tried to a jury. An eyewitness identified the defendant as the person who committed the robbery. By cross-examination, defense counsel sought to discredit the identification testimony. The identification issue was crucial, because the principal defense was an alibi that placed the defendant in Pueblo at the time the crime was committed. Several witnesses substantiated the defendant's alibi, but the key witness was the defendant's common-law wife. The prosecution made a determined effort to impeach her and to discredit her testimony. Defense counsel asserts that the prosecution unfairly attempted to discredit the defendant's alibi and improperly pyramided charges against the defendant.

The jury was given verdict forms which called for a determination of guilt or innocence of the following offense: aggravated robbery, assault with intent to murder, and assault with a deadly weapon, which is a lesser-included assault offense. The jury convicted the defendant of aggravated robbery and assault with a deadly weapon.

For the reasons hereinafter stated, we reverse and remand for a new trial.

I.

Both the robbery and assault charges were based on one incident in which a gunman robbed a drugstore and shot the druggist. The defendant claims that his conviction for both robbery and assault constitutes double jeopardy. He asserts that the assault which occurred during the robbery was such an inseparable part of the crime of aggravated robbery that punishment for both offenses amounts to double punishment for the assault.

The defendant's contention involves both the federal and our state constitutional prohibitions against double jeopardy. U.S.Const. amend, VI; Colo. Const. art. II, § 18. Colorado, however, has long followed the interpretation of the federal double jeopardy provision set forth in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), and Gore v. United States, 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958), to determine whether two offenses are the same. Briefly stated, the rule is that a single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.

The offense of assault with intent to murder requires proof of a specific intent to kill, a fact no necessary to sustain a charge of aggravated robbery. On the other hand, aggravated robbery requires proof of a robbery, a fact not necessary for assault. Therefore, punishment for both of these offenses committed during one course of conduct does not violate the constitutional prohibition against double jeopardy for the same offense.

The trial court, however, also submitted to the jury a charge of assault with a deadly weapon as a lesser-included offense of the charge of assault with intent to murder, and the jury convicted the defendant of the lesser assault. Under the instructions given the jury, aggravated robbery is a robbery during which the robber is armed with a dangerous weapon with the intent, if resisted, to kill, maim, or wound. According to the court's instructions, assault with a deadly weapon is an assault with a deadly weapon with intent to commit a bodily injury. It is clear that assault with a deadly weapon is also a lesser-included offense of aggravated robbery charge which was submitted to the jury. People v. Futamata, 140 Colo. 233, 343 P.2d 1058 (1959). See People v. Velasquez, Colo., 497 P.2d 12 (1972). Since the jury convicted the defendant of aggravated robbery, his conviction for the included offense of assault with a deadly weapon must be set aside. Other errors occurred, however, which require that we reverse the conviction of the defendant of aggravated robbery and grant a new trial.

II.

Additional reasons exist for granting a new trial. Overzealous prosecution resulted in the admission of evidence which we deemed to be prejudicial. The prosecution introduced a police mug shot, with accompanying testimony which suggested that the defendant had a prior criminal history. The mug shot which was offered and introduced into evidence, over the defendant's objection, was a typical police identification photograph. It showed a full face and profile view of the defendant with only the police identification numbers removed. See Barnes v. United States, 124 U.S.App.D.C. 318, 365 F.2d 509 (1966). The mug shot was introduced on the purported theory that it helped establish the identity of the robber and his appearance at the time the robbery occurred. The record does not reflect that the mug shot had any probative or identification value. See Lucero v. People, 166 Colo. 233, 442 P.2d 820 (1968); Valley v. People, 165 Colo. 555, 441 P.2d 14 (1968).

When the defendant failed to take the stand, the prosecution also endeavored to show his past criminal record by asking his common-law wife whether she knew that the defendant had to obtain consent from someone before he could get married. It is apparent to us that the efforts of the prosecution to impeach the...