People v. Hauschel

• Decision Date: 20 November 1975
• Docket Number: No. 74--553,74--553
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Merle HAUSCHEL, Defendant-Appellant. . I
• Court: Colorado Court of Appeals

Page 876

550 P.2d 876

37 Colo.App. 114

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Merle HAUSCHEL, Defendant-Appellant.

No. 74--553.

Colorado Court of Appeals, Div. I.

Nov. 20, 1975.

Rehearing Denied Jan. 2, 1976.

J. D. MacFarlane, Atty. Gen., Jean E. Dubofsky, Deputy Atty. Gen., Edward G. Donovan, Sol. Gen., John R. Rodman, Asst. Atty. Gen., Denver, for plaintiff-appellee.

Rollie R. Rogers, Colorado State Public Defender, T. Michael Dutton, Deputy State

Public Defender, Denver, for defendant-appellant.

STERNBERG, Judge.

Defendant appeals his conviction of first degree criminal trespass (§ 18--4--502, C.R.S.1973), third degree misdemeanor assault (§ 18--3--204, C.R.S.1973), and attempted sexual assault (§ 18--3--407, C.R.S.1973, and § 18--2--101, C.R.S.1973). These were lesser offenses to more serious charges contained in the information. We affirm the convictions.

Two young women lived together in a small cabin east of Glenwood Springs near Interstate 70. They retired shortly before midnight on the evening of January 23, 1974, one on the floor in a sleeping bag at the foot of a bed in which the other slept. They were awakened in the small hours of the morning by a male intruder. Since the room was illuminated by the glow of two electric heaters and the light of a street lamp coming through a picture window, they were able to see him. While there was some discrepancy in their later descriptions of his clothing, both said the intruder had light brown hair, had a scarf covering the lower part of his face, and wore a jacket and leather or suede gloves. He was armed with a knife.

Upon being awakened, one of the women moved toward the intruder and ordered him to leave. He cut her hand with the knife and instructed her either to 'Get back or it will be her throat,' or 'Get back or it will be your throat.' He said things would be 'okay' if they did as directed and ordered them to 'Get nude.' They did not comply and a struggle ensued during which the second woman was cut by the knife on the shoulder and arm and struck in the face. She broke away and ran from the residence to a neighbor's cabin, followed soon by the first woman. Having enlisted the aid of a male neighbor, the women started back toward their cabin, at which time they saw the intruder enter a blue and white pickup truck and drive westerly toward Glenwood Springs.

The women were taken to a hospital for treatment. One required a number of stitches in her shoulder and arm, and the other's hand also required stitches.

At about 3:00 a.m. on the morning in question, a Glenwood Springs police sergeant received a call from his dispatcher informing him of the attack and giving a description of the pickup truck. Observing a vehicle matching the description traveling west on Interstate 70, he followed it for three-quarters of a mile before stopping it and asking for the driver's license and registration. Shortly thereafter, the sergeant was joined by another police officer and both testified at the trial that the driver was, in their opinion, impaired but not under the influence of alcohol. After reporting to the police dispatcher and being told that the sheriff's department did not wish to come to the scene, the officers released the suspect. At the trial, the sergeant identified the defendant as being the driver of the pickup and testified that he had noted that defendant, on the night in question, was wearing a plaid jacket and that he had a black scabbard on his belt.

On the afternoon after the attack the sheriff procured an arrest warrant and, after advising defendant of his rights, took him into custody. Later that day, officers armed with a search warrant returned to defendant's house and seized a knife, several pairs of trousers, a pair of shoes, and one leather glove found in the pickup truck parked beside the door of defendant's home. Significantly, the mate to the leather glove was found near the women's cabin. The district attorney took part in the execution of this search warrant, and it was he who found both a scabbard and knife which were later introduced into evidence.

A photographic lineup was held the day after the incident. On two different occasions one of the women was shown about seven photographs, and during the second of these photographic lineups was unable to choose between two photographs which she picked as resembling the intruder. The other woman was shown about ten photographs and selected one as being the intruder. The photographs which were used in this lineup were available at the preliminary hearing and were viewed by defense counsel at that time. There was no allegation at that hearing that the photographic lineup was unduly suggestive. At the time of trial the photographs had been misplaced or lost and thus were unavailable.

Defendant's theory of the case was that during the night in question his mental and physical capabilities were so impaired by alcohol that he was unable to form the required specific intent to commit the crimes with which he was charged. Defendant testified that he left a bar between 1:30 and 1:45 a.m., that it takes only a few minutes to travel from the bar to his home, but that he did not arrive there until after 3:00 a.m. He made no specific denial that he had committed these acts. His testimony was that he had been drinking so heavily that he could not account for his time between approximately 2:00 and 3:00 a.m., that in the past he had been subject to 'blackouts' when drinking, and that he did not believe he had committed the offenses because such conduct would be foreign to him. The jury was instructed on defendant's theory of the case.

I.

Defendant's first contention on appeal is that the court erred in permitting the district attorney to remain in the courtroom and participate in the trial when it was known that he would be called as a witness for the People, and that the court further erred when it permitted the district attorney to testify and did not grant a mistrial at the conclusion of his testimony.

In Colorado, a prosecuting attorney is competent to be a witness for the state, See § 13--90--101, C.R.S.1973, but ordinarily he should withdraw from active participation in a case when he learns he will be a witness. People v. Spencer, 182 Colo. 189, 512 P.2d 260. See Kurtz v. People, 177 Colo. 306, 494 P.2d 97; and ABA, Standards Relating to the Prosecution Function and the Defense Function § 1.1(b).

While the 'better practice' is not to permit a material witness to function as an officer of the court, Kurtz v. People, supra, nevertheless, for such conduct to constitute reversible error there must be a showing that the witness-attorney's testimony is of sufficient consequence to have prevented a fair trial. See Johnston v. Emerson, 133 Colo. 343, 296 P.2d 229; and People v. Spencer, supra.

In Spencer, supra, the Supreme Court clarified the particular conduct which is of 'sufficient consequence' to prevent a fair trial. There, in a prosecution for perjury before a grand jury, the district attorney not only carried out all trial procedures, but also testified that in reference to defendant's version of a shooting incident he had told the grand jury that 'it just couldn't have happened that way.' This testimony by the district attorney concerning his belief that the defendants were guilty of perjury, the very charge which he was prosecuting, also carried with it an improper inference that the grand jury agreed with him. The court held that such testimony by the district attorney threw 'his own weight into the scales against defendant'; thus the defendants were denied a fair trial.

In the instant case, nearly all of the trial procedures were carried out by a deputy, and, although the district attorney remained in the courtroom and at the prosecution table during the trial, his participation in the trial was limited to taking part in the voir dire of two prospective jurors (one of whom remained on the jury at trial) and direct examination of one and redirect of another of the 37 witnesses called during trial. Also, the district attorney's testimony was limited to describing his discovery of the knife and scabbard during a search of defendant's house.

Defendant's position is that had the district attorney limited his testimony to the fact that he seized the knife and scabbard there would have been no substantial prejudice to the defendant; however, defendant maintains that since the actual testimony of the district attorney was that the items were found beneath some cushions, such testimony gave rise to the inference that they were deliberately hidden there. Thus, the defendant, while not challenging the accuracy of the testimony, claims that it was beyond the point of a mere reference to mechanically picking up the item, but rather implied guilty knowledge causing prejudice to the defendant.

While the issue presented is a close one, and the district attorney's conduct in risking a reversal by adopting a dual role in the trial can only be characterized as reckless, nevertheless, we decline to extend the doctrine of People v. Spencer, supra, to reverse this conviction. Our decision is based on several considerations. The district attorney's participation in the trial was limited, and pursuant to court order, after he testified he took no further part in the trial. Nor was the nature of the district attorney's testimony here as significant or damning as that in Spencer.

Thus, we hold that this district attorney's indiscretion, under the facts of this case, does not rise to the seriousness of constituting a denial of a fair trial, and that thus the refusal to grant a mistrial after his testimony was not reversible error. See Annot. 54 A.L.R.3rd 100. Also, while it would have been better practice not to have permitted the district attorney to remain at counsel table after he had testified, that imperfection in the trial procedure does not constitute error...