People v. Ciari

• Decision Date: 15 September 1975
• Docket Number: No. 26134,26134
• Citation: 189 Colo. 325,540 P.2d 1094
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Walter CIARI, Defendant-Appellant.
• Court: Colorado Supreme Court

Page 1094

540 P.2d 1094

189 Colo. 325

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Walter CIARI, Defendant-Appellant.

No. 26134.

Supreme Court of Colorado, En Banc.

Sept. 15, 1975.

Rehearing Denied Oct. 20, 1975.

John P. Moore, Atty. Gen., John E. Bush, Deputy Atty. Gen., James W. Wilson, Asst. Atty. Gen., Dale Tooley, Dist. Atty., Brooke Wunnicke, Chief App. Deputy Dist. Atty., Denver, for plaintiff-appellee.

H. Earl Moyer, Lakewood, for defendant-appellant.

GROVES, Justice.

This opinion is announced simultaneously with People v. Quintana, Colo., 540 P.2d 1097 and People v. Broncucia, Colo., 540 P.2d 1101.

The defendant (Ciari), Robert Quintana and five other individuals were charged with perjury and conspiracy to commit perjury. The defendant and Quintana were tried together, and the defendant was found guilty of perjury. Quintana was found guilty of both perjury and the conspiracy. They filed separate appeals and, while these were consolidated for oral argument, we write separate opinions. Defendant's appeal is based upon the trial court's failure to grant a trial severance, and its rulings on admissibility of certain evidence. Further, the defendant alleges prejudicial impeachment of one of his witnesses. We affirm.

Allegedly, on February 7, 1970, Robert Griswold and Linda Tomeo, performed a 'diamond switch' in a jewelry store in Reno, Nevada, substituting imitations for real diamonds; and fled that state, returning to Colorado. Nevada requested extradition in Colorado, which Griswold contested under application for a writ of habeas corpus. At the hearing on March 23, 1972, a number of witnesses appeared for Griswold, including the defendant. Each of Griswold's witnesses testified to the effect that Griswold was in Colorado on February 7, 1970. The defendant testified that he had seen Griswold in the defendant's automotive shop on February 7, 1970, and that he had given Griswold a statement for repairs at that time. Subsequently, all of Griswold's alibi witnesses were indicted for perjury and conspiracy to commit the same at the extradition hearing.

At trial the People called the jeweler from Reno who was the victim of the diamond switch. He testified that the theft had occurred and that the date of the theft was February 7, 1970. He also identified Tomeo and Griswold as the thieves. An F.B.I. agent testified that a search of Griswold's car in Denver produced a diamond. The jeweler testified that it appeared to be the diamond stolen from his store.

The principal witness relied upon by the People was Linda Tomeo, who had also been indicted earlier for perjury at the extradition hearing. She met with prosecuting attorneys in the Griswold case and agreed to testify against Griswold and other defendants in exchange for immunity. Subsequently, the court granted her immunity and ordered her to testify.

She testified that she had been a participant in Griswold's diamond switches in Nevada, as well as in several other states, and further that she had become involved in other criminal activity. She gave a detailed account of the diamond switch of February 7, 1970, in Reno. She testified that she had later accompanied Griswold on a number of occasions when he sought witnesses to provide testimony at the extradition hearing which would support his claim that he was in Denver on February 7, 1970. She testified that the alibi was fabricated; and that, after she was promised immunity, she contacted the defendant and Quintana, engaging each of them in conversations which she secretly recorded. She further testified as to acts and statements of other members of the conspiracy. She also testified that, at a meeting of Griswold, the defendant and herself, Griswold said to the defendant, 'Don't forget the date--February 7, 1970.'

I

The defendant first contends that the court erred in failing to grant his motion for severance, asserting that he was erroneously prejudiced by the admission of evidence which would not have been admissible against him in a separate trial. This evidence was testimony by Tomeo as to conspiratorial statements and acts of other alibi witnesses. He cites Crim.P. 14 which states in pertinent part:

'If it appears that a defendant or the prosecution is prejudiced by a joinder of offenses or of defendants in any indictment or information, or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance of defendants, or provide whatever other relief justice requires. However, upon motion any defendant shall be granted a separate trial as of right if the court finds that the prosecution probably will present against a joint defendant evidence, other than reputation or character testimony, which would not be admissible in a separate trial of the moving defendant.'

The defendant acknowledges the rule that, if there is independent evidence that a defendant participated in a conspiracy, other evidence--of the declarations of other members of a conspiracy and of acts of other members at which defendant was not present in the furtherance of the conspiracy--is admissible against that defendant. He suggests, however, that if he had been granted a separate trial the independent evidence would not have been sufficient to permit the case to go to the jury. He argues, therefore, that such other evidence of acts and declarations of his alleged conspirators would have been inadmissible against him.

The testimony of Tomeo was sufficient independent evidence of defendant's participation in the conspiracy to take the issue to the jury. She testified concerning several meetings between...