People v. Duncan

• Decision Date: 08 August 1972
• Docket Number: No. 24888,24888
• Citation: 500 P.2d 137,179 Colo. 253
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. George D. DUNCAN, Defendant-Appellant.
• Court: Colorado Supreme Court

Page 137

500 P.2d 137

179 Colo. 253

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. George D. DUNCAN, Defendant-Appellant.

No. 24888.

Supreme Court of Colorado, En Banc.

Aug. 8, 1972.

Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., George E. DeRoos, E. Ronald Beeks, Asst. Attys. Gen., Denver, for plaintiff-appellee.

Rollie R. Rogers, Colorado State Public Defender, J. D. MacFarlane, Chief Deputy State Public Defender, Kenneth J. Russell, Benjamin Andrews, Deputy State Public Defenders, Denver, for defendant-appellant.

LEE, Justice.

Appellant, George Dalton Duncan, seeks reversal of his conviction of aggravated robbery. We affirm.

This cause was heretofore before this Court for review. People v. Duncan, Colo., 498 P.2d 941, announced December 6, 1971. The facts of the crime are therein summarized and we do not repeat them.

We remanded the cause to the trial court on confession of error by the People in connection with the trial court's failure to make specific findings of fact concerning its denial of appellant's motion to suppress evidence. Pursuant to directions of this Court, the trial court did conduct a further extensive evidentiary hearing on the issue of probable cause in justification of the warrantless arrest of appellant and his confederate in the state of Kansas, and the seizure at that time of the items of evidence sought to be suppressed. The record of evidence and detailed and comprehensive findings of fact supporting the trial court's denial of the motion to suppress have now been certified to us.

I.

Critical to the determination is whether the Kansas officers could rely upon the all points bulletin on the basis of the fellow-officer rule and lawfully make the warrantless arrest of the appellant. Correlated to the foregoing is the question of whether the Denver police officers who broadcast the 'APB' were in possession of sufficient trustworthy underlying facts and circumstances of the robbery to support a conclusion of probable cause which would justify the warrantless arrest and the seizure of the evidence by the Kansas officers. Whiteley v. Warden, Wyoming State Penitentiary, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306; People v. Myers, Colo., 485 P.2d 877; People v. Ware, Colo., 484 P.2d 103; People v. Nanes, Colo., 483 P.2d 958.

The record shows that an immediate intensive investigation was commenced by the Denver police officers. Eyewitnesses to the robbery were interviewed. A description of the robbers was obtained. The escape vehicle was described as a red and black MG convertible. Further investigation led to the owner of the sports car, who advised the officers he had loaned it to two men, one of whom was killed during the holdup, and the other of whom was known as 'Butch' from Kansas City. The latter fit the description of the appellant. With this information the officers concluded that a robbery had in fact been committed and that the robbers were probably headed for Kansas City, Missouri, in the red and black MG convertible, bearing Colorado license No. AX 979. The 'APB' was sent out accordingly, resulting in appellant's arrest and seizure of the questioned evidence.

Under these salient facts, probable cause existed for the Denver officers to arrest the fleeing robbers without a warrant, were they able to do so. It follows that the Kansas officers could also do so, relying on the information relayed to them via the 'APB' by their fellow officers in Colorado. Cf. People v. Leahy, 173 Colo. 339, 484 P.2d 778. We affirm the trial court's order denying the motion to suppress the items of evidence seized during the warrantless arrest.

Appellant claims that the trial court had no authority to take evidence at the remand hearing in addition to that received at the original suppression hearing. By our directions, the trial court conducted the additional hearing it deemed necessary. The existence of probable cause was the critical issue. If it was necessary for the trial judge to hold an additional evidentiary hearing in order to arrive at the truth concerning this issue, it was within his discretion to do so. People v. Jenkins, 174 Colo. 26, 481 P.2d 714. We find nothing in the authorities cited by appellant that prohibits the procedure here adopted. Had we reversed the case and ordered a new trial, the additional evidence here complained of would have been admissible on the same issue.

II.

Appellant further contends that reversal should be granted for the reason that the trial court failed to rule that the in-court identifications by two prosecution witnesses were not tainted by lineup procedures. During the trial, an In camera hearing was held concerning two lineups at which two bank employees were present. At the conclusion of the In camera evidence, the trial court ruled against appellant, stating: 'He (the identification witness) has...