People v. Cooke, 26048

• Decision Date: 06 August 1974
• Docket Number: No. 26048,26048
• Citation: 525 P.2d 426,186 Colo. 44
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Joseph Theron COOKE, Defendant-Appellee.
• Court: Colorado Supreme Court

Page 426

525 P.2d 426

186 Colo. 44

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Joseph Theron COOKE, Defendant-Appellee.

No. 26048.

Supreme Court of Colorado, En Banc.

Aug. 6, 1974.

Alexander M. Hunter, Dist. Atty., Mike Bynum, Deputy Dist. Atty., Boulder, for plaintiff-appellant.

Miller & Gray, P.C., Robert Bruce Miller, Boulder, for defendant-appellee.

ERICKSON, Justice.

The defendant was charged with possession of narcotics for sale. 1971 Perm.Supp., C.R.S.1963, 48--5--20. At the close of all the evidence, the People requested an instruction on the lesser included offense of possession of a narcotic drug, a felony. 1971 Perm.Supp., C.R.S.1963, 48--5--2, 48--5--20. Counsel for the defendant objected to the giving of the tendered instruction. The trial court ruled that the prosecution could obtain an instruction only on the offense actually charged and refused to give a lesser included offense instruction. The district attorney brings this appeal alleging error in the trial court's failure to give the tendered instruction.

The sole issue presented upon appeal is whether an instruction on a lesser included offense may properly be given at the request of the prosecution when the defendant objects. Generally, it is the defendant who attempts to obtain the benefit of such an instruction. For that reason, the present case is something of an anomaly.

The prosecution asserts as grounds for reversal that the defendant had sufficient notice to defend against the lesser charge of possession, and that an objection by the defense should not be grounds for denying such an instruction when requested by the prosecution.

1971 Perm.Supp., C.R.S.1963, 40--1--508(5) and Crim.P. 31(c) provide that a defendant may be found guilty of an offense included within the offense charged. These provisions are embodiments of the rule at common law that the defendant was presumed to be on notice that he could be convicted of the crime charged or a lesser offense included therein. If this presumption of notice can be said to satisfy the Sixth Amendment guarantees of notice, the prosecution's right to an instruction on an offense necessarily included within the offense charged must be upheld. U.S.Const. Amend. VI.

The right of an accused to notice of the charges which have been made against him constitutes a fundamental constitutional guarantee and lies at the foundation of due process of law. U.S.Const. Amend. VI; Colo.Const. Art. II, Sec. 16. The notice given must be sufficient to advise the accused of the charges, to give him a fair and adequate opportunity to prepare his defense, and to ensure that he is not taken by surprise because of evidence offered at the time of trial. In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682 (1948); Cole v. Arkansas, 333 U.S. 196, 68 S.Ct. 514, 92 L.Ed. 644 (1948).

Applying this test, we hold that the information charging possession with intent to sell was sufficient to advise the defendant that he must be prepared to controvert evidence of possession and to defend on that charge. Because possession is an essential element of possession with intent to sell, the defendant can scarcely claim surprise by the introduction of evidence establishing possession.

It is true that the prosecution's use of the lesser included offense doctrine places some burden upon the defendant to determine the specific charges which have been made against him. This fact, in itself, however, is not enough to make the constructive notice which is embodied in the greater charge unconstitutional. The effectiveness of many constitutional...