People v. Gonzales

• Decision Date: 06 August 1974
• Docket Number: No. 25794,25794
• Citation: 186 Colo. 48,525 P.2d 1139
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Inisio Anthony GONZALES, Defendant-Appellant.
• Court: Colorado Supreme Court

Page 1139

525 P.2d 1139

186 Colo. 48

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Inisio Anthony GONZALES, Defendant-Appellant.

No. 25794.

Supreme Court of Colorado, En Banc.

Aug. 6, 1974.

Rehearing Denied Aug. 26, 1974.

John P. Moore, Atty. Gen., John E. Bush, Deputy Atty. Gen., Robert C. Lehnert, Asst. Atty. Gen., Denver, for plaintiff-appellee.

Rollie R. Rogers, Colo. State Public Defender, James F. Dumas, Jr., Chief Deputy State Public Defender, Thomas M. Van Cleave III, Deputy State Public Defender, Denver, for defendant-appellant.

HODGES, Justice.

Appellant Gonzales was found guilty by a jury of burglary (C.R.S. 1963, 40--3--5) and theft (1965 Perm.Supp., C.R.S. 1963, 40--5--2). He received concurrent sentences. On this appeal, Gonzales asserts that the two inculpatory statements he made to the police after arrest were improperly admitted into evidence because he was arrested without probable cause and the statements were not voluntary. Also, it is contended that the evidence is insufficient to sustain the jury verdicts, and that the jury should not have been instructed on the subject of flight. We find no merit to the defendant's contentions and we therefore affirm the judgment of the trial court.

Approximately $3,248 mysteriously disappeared between noon and 2:00 p.m. from the cashier's cage of a discount food store. No one saw the defendant in the store. As the result of a tip from an informant that the defendant had taken this money and had purchased an automobile with some of it, the police arrested him. Thereafter, the defendant made inculpatory statements, the admissibility of which he now challenges. Other pertinent evidence will be included in the discussion of the issues.

I.

Defendant claims that his inculpatory statements should not have been admitted into evidence because the police did not have probable cause to arrest him. Consequently, he asserts, his statements while in custody after arrest were not admissible as being the 'fruit of the poisonous tree.' Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

In Wong Sun, the standard for a probable cause arrest, with or without a warrant, was delineated as follows:

'. . . it is basic that an arrest with or without a warrant must stand on firmer ground that mere suspicion, See Henry v. United States, 361 U.S. 98, 101, 80 S.Ct. 168, 170, 9 L.Ed.2d 134, Though the arresting officer need not have in hand evidence which would suffice to convict. The quantum of information which constitutes probable cause--evidence which would 'warrant a man of reasonable caution in the belief' that a felony had been committed, Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 288, 69 L.Ed. 543,-- must be measured by the facts of the particular case. . . .' (Emphasis added.)

In this state, an officer is statutorily authorized to make an arrest Without a warrant 'when a criminal offense has, in fact, been committed, and he has reasonable ground for believing that the person to be arrested committed it.' C.R.S. 1963, 39--2--20.

We look now to the evidence on which the investigating officer, Detective Sergeant Bravo, made the arrest. From our analysis of the facts in the light of the Wong Sun standard, we find that there was probable cause to make the warrantless arrest here.

The record shows that Mrs. Milhelich, the cashier, counted the cash, separated the currency into bundles by denomination, I.e., $20's, $10's, $5's and $1's, at 7:00 a.m. and at 12 o'clock noon. After the 12 o'clock count, she left the store for the day.

Mrs. Milhelich counted the cash in the cash registers and in the cashier's cage. At 12 o'clock, there was in excess of $10,000 in cash, checks and currency. The adding machine tapes which she made showed two items of $1,000 and two items of $500. Mrs. Milhelich explained that the $1,000 items represented $20 bills and one $500 item represented $10 bills. The other $500 item represented $5 bills. She explained every item on the tapes and stated that she had counted each one.

When Mrs. Milhelich left, no one replaced her in the cashier's cage. The cage had a window and a door with a snap lock that could be opened by reaching over the door and pushing a release on its underside. The manager and two assistant managers entered the cage on occasion in order to cash customer checks.

At approximately 2:00 p.m., one of the assistant managers went in to cash a check and discovered that there were no $20 bills. He called the bookkeeper who made an immediate audit in the same fashion as the cashier had done earlier. The audit disclosed a shortage of $3,248.48.

At the trial, the manager, assistant manager and the bookkeeper, all of whom had been in the store continuously since before 12 o'clock noon, testified that they did not know the defendant and none of them had seen him in the store on Saturday.

The first information as to defendant's involvement was received by Police Corporal Koncilja. A paid informer, on or about October 27th, advised him:

'. . . that the Defendant, Gonzales, was the individual who had removed an amount of money from So-Lo discount . . . that he had used this money to buy a late model white GTO in the Denver area and had used the money from the theft to pay for this particular vehicle.'

The officer testified that the informant had furnished information which led directly

'. . . to the conviction of currently five individuals and there are four more individuals who are to come to trial within the district courts in Pueblo, and there are five who will be appearing before the district courts in Denver.'

This information was furnished to Detective Sergeant Bravo, who checked with the motor vehicle registration bureau and learned that a 1966 white Pontiac GTO had recently been registered in the name of the defendant. He also checked with the Welfare Department and learned that the defendant was a welfare recipient.

The registration revealed that the automobile had been purchased in Lakewood, Jefferson County, Colorado on October 15th (five days after the theft). Officer Bravo requested an investigation by the Lakewood Police Department. The Lakewood Police Department's investigation report revealed that it had

'. . . contacted Mr. Roth of Jerry Roth Chev., Inc. and learned that Mr. Gonzales purchased said vehicle with cash in the amount of $1,452.00 and Mr. Roth further states that to the best of his knowledge payment was made mostly with twenty dollar bills.'

On the basis of all of the foregoing information, the arrest was made. In assessing probable cause to arrest without a warrant, all evidence within the knowledge of the arresting officer may be considered even though it may not be competent evidence at trial. Draper v. United States, 385 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959). See also Gallegos v. People, 157 Colo. 173, 401 P.2d 613 (1965).

In reaching the conclusion that probable cause existed at the time of the arrest, we have considered and applied the rulings in Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969) and Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964).

II.

Next the defendant alleges that the inculpatory statements he furnished to the police were inadmissible because they were coerced and were thus, involuntary. The voluntariness of the defendant's statements was the subject of two suppression hearings, one, prior to trial, and one, during the course of the trial. On behalf of the defendant, there was presented at the two suppression hearings, different accounts of the alleged coercive activity on the part of the police. On the other hand, there was evidence indicating that no coercion whatsoever occurred and that the bruises which were suffered by the defendant were the result of his attempt to escape and apprehension after arrest. After the two extended suppression hearings, the trial court made a finding that the defendant's statements were voluntary.

Evidence in this record supports the finding of voluntariness on the part of the trial judge.

III.

The defendant contends that without the admission of the defendant's statement there is no sufficient evidence to sustain either the burglary or theft conviction. In view of our ruling on the admissibility of the statement, we need only consider the sufficiency of the evidence, including the admissions in his statement to the police, to determine whether the Corpus delicti has been established. We recognize that the Corpus delicti must be corroborated independently of the confession. People v. Maestes, Colo., 517 P.2d 461 (1973); Martin v. People, 179 Colo. 237, 499 P.2d 606 (1972) and cases cited therein. The corroboration may be either direct or circumstantial.

Here, a brief reference to the facts set out previously discloses adequate corroboration of the defendant's admissions found in the statement and there is no need to prolong this opinion by analysis or repetition.

IV.

By Instruction No. 13, given by the court, the jury was told that if it found that the crimes charged in the information were committed by some person, and that immediately after being apprehended the defendant fled, such flight would be a circumstance, not sufficient in itself to establish guilt, but which, together with all other facts and circumstances proven at the trial, could be considered in determining the guilt or innocence of the defendant; that it was for the jury to determine whether such flight was caused by a consciousness of guilt or by some other and innocent motive.

This instruction was given over the objection of defense counsel. He has assigned error, claiming that it places undue emphasis on one factor of defendant's behavior, citing People v. Morant, 179 Colo. 287, 499 P.2d 1173 (1972). We did condemn the instruction in Morant under the peculiar facts of that case, which are not present in the instant case.

Here, the defendant claimed...