People v. Franklin, 81SA227

• Decision Date: 26 April 1982
• Docket Number: No. 81SA227,81SA227
• Citation: 645 P.2d 1
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Robert Lee FRANKLIN, Defendant-Appellee.
• Court: Colorado Supreme Court

Page 1

645 P.2d 1

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Robert Lee FRANKLIN, Defendant-Appellee.

No. 81SA227.

Supreme Court of Colorado, En Banc.

April 26, 1982.

R. Dale Tooley, Dist. Atty., O. Otto Moore, Asst. Dist. Atty., Denver, for plaintiff-appellant.

No appearance for defendant-appellee.

LOHR, Justice.

The People appeal from a judgment of acquittal entered by the Denver District Court after a jury had been unable to reach a verdict on charges brought against the defendant, Robert Lee Franklin, for pimping, section 18-7-206, C.R.S.1973 (1978 Repl.Vol. 8) and conspiracy to commit pimping, section 18-2-201, C.R.S.1973 (1978 Repl.Vol. 8). The issue is whether the trial court erred in ruling that the testimony of two principal prosecution witnesses was incredible as a matter of law, with the result that the remaining evidence presented by the People was insufficient to support the submission of the case to the jury. We conclude that the ruling was erroneous and disapprove the district court's order granting the defendant's motion for a judgment of acquittal. ¹

I.

The direct criminal information states the pimping charge as follows:

... Between the dates of April 1, 1979, and May 10, 1979, at the City and County of Denver, State of Colorado, ROBERT LEE FRANKLIN and STEPHANIE J. O'CONNOR, did unlawfully, feloniously and knowingly live on and was supported and maintained in whole and in part by money and other thing of value earned, received, procured and realized by (JANE DOE), ² through prostitution; contrary to the form of the statute in such case made and provided, and against the peace and dignity of the People of the State of Colorado.

The conspiracy count alleges an agreement between the defendant and O'Connor to commit the crime of pimping during that same April 1 to May 10, 1979, period.

The defendant was tried separately. In his trial the principal witnesses for the prosecution were Doe and Deion Morvay, the owner of an escort service for which Doe worked for a short time during the period of the charged conspiracy. A summary of their testimony and of the evidence relied upon to impeach them is necessary to give context to the trial court's order granting a judgment of acquittal.

Doe testified to the following events. She met O'Connor and several other young women early in April 1979, and soon thereafter moved into a house occupied by them. O'Connor introduced Doe to Morvay and other persons at Elan's Photography on South Broadway Street in Denver, from which Morvay ran an escort service. ³ Doe began working for the escort service the very day she and O'Connor met.

Doe described the nature of Morvay's business and Doe's part in it. The escort service received telephone calls from potential customers. O'Connor wore a "beeper" by means of which she was advised when Morvay's business wished her to respond to a customer's call. When Doe's services were desired, O'Connor would take her to the place where she was to meet the customer. The men were required to pay $25 for the escort service fee, and the women bargained with them for additional payments as "tips" for various sexual acts. Under their arrangement with Morvay, the women kept the tips as their compensation. O'Connor always conducted the negotiations to set the amount of the tips for Doe's services. Doe gave the escort service fees and all her tips-approximately $2,000 to $3,000-to O'Connor. O'Connor bought clothing and groceries for Doe.

Doe testified further that she met the defendant when he returned from out-of-town about two weeks after Doe moved into the house with O'Connor and the others. During this first meeting the defendant asked Doe if she was going to be "his lady" and she agreed. The defendant maintained a room in the house occupied by the women. He and O'Connor had a small child who also lived at the house. Doe saw the defendant at the house almost every other day and had sexual relations with him on occasion. Once, at O'Connor's direction, Doe slipped $500 under the defendant's door, and on another occasion she gave him $250 after he said to several of the women that "whoever got the most money at the end of the week gets a diamond." Both sums were earned by Doe through prostitution, her only employment during the relevant time period. Doe's activities led to her arrest on May 10, 1979.

Deion Morvay, the owner of the escort service operated out of Elan's Photography, testified as follows. Early in March of 1979 O'Connor came to her office with four other women and offered to work for Morvay's escort service. She hired them. The women were dispatched by the escort service in response to telephone calls from customers. The women collected the agency fees from the men, and were free to negotiate with them for tips for sexual services. The women kept the tips as their compensation. O'Connor usually handled all the arrangements for the women she brought to the service. O'Connor introduced Doe to Morvay and Morvay hired her.

Morvay testified that, when she complained to O'Connor that her girls did not respond to calls after agreeing to do so O'Connor referred her to the defendant as the person who "handles things when there are rough spots." Morvay met with the defendant and explained the problem. He gave her $60 to $80 to cover the service fees for calls to which the women had failed to respond.

Morvay had advised O'Connor and Doe that Doe must obtain suitable identification before working for the escort service. Upon learning that Doe had worked at a large party without such identification, Morvay fired O'Connor and her women. Morvay testified that, after O'Connor and the other women were discharged, the defendant called and asked her to take them back. She related that conversation as follows:

Q: How did that happen?

A: Well, he called back and I said, "I am firing the girls," and I told him why, and he said-do you want me to tell you the whole story?

Q: Yes. Just what you said and what he said.

A: He said he liked my service; I had the best service, and the girls; the girls made a lot of money, and, you know, I was a good person to work for, and he wanted his girls to continue working for me and I said "no," and then he got rather nasty, and threatening, and I hung up on him.

Later, the defendant again talked to Morvay by telephone to try to persuade her to reemploy the women. Morvay testified about the conversation:

Q: What did he say?

A: Just the same thing, he wanted the girls to work, and he just got nasty, and threatening, and scary, and basically I kept slamming the phone on him, and pretty soon I had my phone changed.

Q: Did he say anything about the amount of money that was made through your service?

A: He said the girls were making a lot of money through my service, and it was a protective covering, more or less. They didn't have to go out on the street and it was better for all concerned if they worked in the service.

Q: Did you ever hire them back?

A: No. I didn't.

On May 16, 1979, the police executed a search warrant at Morvay's business and arrested her.

Among the evidence corroborating Doe's account of her prostitution activities was the testimony of two customers of the escort service who had engaged in acts of prostitution with her. Voluminous documentary evidence and testimony corroborated Morvay's description of her escort service business.

The defendant attempted to impeach Doe by showing that she had made statements inconsistent with her testimony at trial. He also sought to cast doubt on Morvay's testimony through her own acknowledgment that she agreed to be a witness as part of a plea bargain under which she would avoid imprisonment for a felony charge.

On direct examination Doe admitted that when first questioned after her arrest she had told the police she did not know the defendant. She explained this false response by saying that "Stephanie (O'Connor) said to never mention his name or that I knew him, because he would get into trouble." She also acknowledged giving the police a false identification card reflecting that she was an adult. O'Connor had told her to do that so that she could be bailed out of jail rather than taken to juvenile hall. On cross-examination Doe admitted she had not been candid during her questioning by the police or at the defendant's preliminary hearing in describing her relationship with him. She again accounted for her reticence and false statements by saying she was trying to protect the defendant. She also testified that, during the questioning by the police in juvenile hall in the presence of her father, embarrassment and a wish to protect the defendant caused her to deny a sexual relationship with him. Doe further admitted lying to the defendant's investigator about her knowledge of the defendant's activities when the investigator appeared at the group home in which she had been placed and interviewed her in preparation for trial. The investigator also testified, contrary to Doe's initial statement at trial, that Doe told him during the interview that she had decided to testify in order to be released from...