People v. Heckers, 75--100

• Decision Date: 04 December 1975
• Docket Number: No. 75--100,75--100
• Citation: 37 Colo.App. 166,543 P.2d 1311
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. John H. HECKERS, Defendant-Appellee. . III
• Court: Colorado Court of Appeals

Page 1311

543 P.2d 1311

37 Colo.App. 166

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. John H. HECKERS, Defendant-Appellee.

No. 75--100.

Colorado Court of Appeals, Div. III.

Dec. 4, 1975.

Terrance L. Farina, Dist. Atty., Brooke Wunnicke, Chief App. Deputy Dist. Atty Peter R. Bornstein, H. Jeffrey Bayless, Deputy Dist. Attys., Denver, for plaintiff-appellant.

No appearance for defendant-appellee.

STERNBERG, Judge.

Pursuant to § 16--12--102, C.R.S.1973, the People appeal upon questions of law in reference to three rulings of the trial court. We approve these rulings.

Defendant was charged with misuse of official information while he was Executive Director of the Colorado Department of Revenue. The statute upon which the charges were founded, § 18--8--402, C.R.S.1973, provides in pertinent part that:

'(1) Any public servant, in contemplation of official action by himself or by a governmental unit with which he is associated or in reliance on information to which he has access in his official capacity and which has not been made public, commits misuse of official information if he:

'(a) Acquires a pecuniary interest in any property, transaction, or enterprise which may be affected by such information or official action; or

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'(c) Aids, advises, or encourages another to do any of the foregoing with intent to confer on any person a special pecuniary benefit.'

The evidence at the trial was as follows: In his position with the state, one of defendant's duties was to supervise issuance or denial of 3.2% Beer licenses at the state level, but only in cases where such licenses were approved by the local licensing authority could there be a hearing at the state level. Defendant's wife in conjunction with wives of other employees of the Department of Revenue had formed a corporation, Clean Air Distributors, Inc. That corporation had obtained a franchise to sell an air purification device in Colorado. This equipment was particularly effective in cleaning smoke from the air in businesses such as restaurants and bars.

Defendant met with several individuals who desired to open a nightclub to be named 'Funny Papers,' for which a 3.2% Beer license would be required. An application relating to that license was pending before the local licensing authority in the City and County of Denver. A discussion took place concerning the purchase of air purification units for that establishment. At that point in the trial, one of the People's witnesses referred to a contract that allegedly had been signed, and defendant objected on the basis that the document itself should be produced.

Thereupon, an In camera hearing took place. The People, proceeding under § 13--25--113, C.R.S.1973, the lost document statute, presented an affidavit of one of the special prosecutors. The affiant stated therein that he had heard one Bisgard testify before the grand jury that there was a written contract, that the contract related to the purchase of approximately 16 air purification units for about $14,000, that the contract was written by the defendant, that he (Bisgard) and defendant had signed it, that the contract contained a contingency that it would be invalid unless a 3.2% Beer license was obtained, that while the witness had received a copy of the contract, he was unable to locate it, and finally that the defendant and the manager of Clean Air Distributors, Inc., could not locate a copy of the document.

After receiving the affidavit, the court indicated that it would not permit testimony of the existence of or contents contained in the purported written contract, and the People, still proceeding In camera, presented the testimony of Mr. Bisgard himself. His testimony at times was quite different from that attributed to him in the prosecutor's affidavit. Quoting from the record:

'Q. I am asking you, do you definitely recall now whether you got a copy of this contract?

'A. I vaguely remember something, that I got a copy of something.

'Q. Is it possible that you have confused in your mind a contract in this particular transaction with contracts in other transactions?

'A. It is very possible.

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'Q. It is fair to say, then, too, that you aren't really sure right now whether Mr. Heckers signed a document, isn't it?

'A. On that one, no, I am not sure.'

Other witnesses who were present at the time the alleged contract was purportedly executed, testified with the same vagueness at the In camera hearing. One such witness stated that 'something was put in writing,' while another testified that he had not read the document, nor could be remember if anyone signed it. All of these witnesses denied receiving copies of any contract.

The court persisted in its ruling that evidence of the alleged contract would not be permitted, and the People proceeded to put on the rest of their case. The People attempted to introduce evidence of sales of air purifiers by Clean Air Distributors, Inc., to restaurants and bars that had liquor licenses at the time of the transactions, but the court refused to permit such testimony to come before the jury. At the close of the People's case the defendant moved for a judgment of acquittal, and the court granted the motion.

I.

The People contend that the court erred in excluding proffered evidence relating to the contract for sale of air purifiers, urging that they had met the requirements of the lost document statute, § 13--25--113, C.R.S.1973. That statute reads:

'When, in the progress of any suit in any court in this state, either party thereto relies for its maintenance or defense, in whole or in part, on any deed, bond, note, draft, bill of exchange, letter, or any other writing alleged to have been executed, signed, or written by the adverse party, and to have been lost or destroyed, the party so relying on the same as evidence in his behalf in the trial of the cause shall not be permitted to give evidence of the contents thereof by a competent witness until said party or his agent or attorney first makes an oath to the loss or destruction thereof, and to the substance of the same.'

The People urge that the affidavit which they presented indicated the loss of the document and the substance thereof and that therefore evidence of the contents of the contract should have...