People v. Hinchman

• Citation: 196 Colo. 526,589 P.2d 917
• Decision Date: 11 December 1978
• Docket Number: Nos. C-1409,C-1414,s. C-1409
• Parties: The PEOPLE of the State of Colorado, Petitioners, v. Joseph Edwin HINCHMAN, Respondent. Joseph Edwin HINCHMAN, Petitioner, v. The PEOPLE of the State of Colorado, Respondents.
• Court: Supreme Court of Colorado

Page 917

589 P.2d 917

196 Colo. 526

The PEOPLE of the State of Colorado, Petitioners, v. Joseph Edwin HINCHMAN, Respondent.

Joseph Edwin HINCHMAN, Petitioner, v. The PEOPLE of the State of Colorado, Respondents.

Nos. C-1409, C-1414.

Supreme Court of Colorado, En Banc.

Dec. 11, 1978.

Rehearing Denied Jan. 8, 1979.

J. D. MacFarlane, Atty. Gen., David W. Robbins, Deputy Atty. Gen., Edward G. Donovan, Sol. Gen., James S. Russell, Asst. Atty. Gen., Denver, for the People.

Joe Clarence Medina, Charles F. Murray, Denver, for Joseph Edwin Hinchman.

GROVES, Justice.

The defendant and the People separately requested certiorari from the Colorado Court of Appeals' opinion in People v. Hinchman, Colo.App., 574 P.2d 866. We granted both petitions and consolidated the matters. We affirm in part and reverse in part.

The defendant, Joseph Hinchman, was convicted of first-degree arson and conspiracy to commit arson. At trial, the district court denied his motion to suppress as evidence a gasoline container which was observed during a search of the defendant's home on March 20, 1975. The validity of that search is not contested. Officers seized other gasoline containers but unwittingly left behind the container at issue. Two officers returned to the defendant's home on March 21, 1975 and sealed the remaining container. Approximately four days later, at the suggestion of the police, the defendant's wife voluntarily brought the can to the police. The fact of the second entry was not communicated to counsel for the defense during pretrial discovery.

The People introduced at trial expert testimony relating to fuel and vapors obtained from the can. Defense counsel then moved to have the evidence concerning vapors and fuel in the can suppressed. The trial court concluded that the defendant knew the sources of the relevant evidence prior to trial and should have made a motion to suppress at that time. It is to be inferred from the court's ruling that it determined that the motion was not timely because no evidence had been seized in the second search. The court of appeals affirmed this ruling.

We agree that no evidence was seized during the officers' second entry. ¹ The officers simply acted to preserve potentially relevant evidence which the defendant's wife later surrendered voluntarily. The record does not show that analysis of the container's contents would not have been possible but for the policemen's actions in sealing the opening. The defendant's claim that evidence was illegally seized as a result of the second visit cannot be sustained.

The second issue on appeal concerns the limitation placed by the trial court upon the defense counsel's cross-examination of Bobby Abrahamson, Jr., the chief witness for the prosecution. Abrahamson, initially was charged with first-degree arson. The prosecutor offered to reduce charges against him in return for his testimony against the defendant. The court permitted cross-examination concerning the plea bargain.

Abrahamson also had been involved in a separate homicide for which he was charged as an accessory to felony-murder. The prosecutor in that case agreed to treat Abrahamson's participation as a juvenile offense if he would testify against the principals, which he did. At the time of the arson, Abrahamson was awaiting sentencing to the reformatory at Buena Vista.

The defendant sought to question Abrahamson about his role in the felony-murder and the plea bargain struck in that case. The district court ruled that evidence of the juvenile adjudication was not admissible, but that the defendant could show that the witness previously had received favorable treatment in return for testifying for the prosecution. The court of appeals concluded that the trial court had acted within its discretionary powers to determine the scope of cross-examination.

The defendant relies upon Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974) and People v. King, 179 Colo. 94, 498 P.2d 1142 (1972) in arguing that the policy against introduction of juvenile dispositions in subsequent proceedings should have given way before the defendant's sixth amendment right to confront adverse witnesses. The relevant portion of the Juvenile Code says:

"No adjudication, disposition, or evidence given in proceedings brought under section 19-1-104 shall be admissible against a child in any criminal or other action or proceeding, except in subsequent proceedings under section 19-1-104 concerning the same child." Section 19-1-109(2), C.R.S.1973.

Without addressing the extent of the restrictions the statute imposes, we find the trial court's accommodation of the competing interests in this case appropriate and within the bounds of its discretion to determine the scope of cross-examination. Davis v. Alaska, supra, held that cross-examination about the witness' juvenile court record and probation status was necessary to afford the defendant his right of confrontation. However, the witness was on probation for burglary, the same offense with which the defendant in that case was charged. Cross-examination was necessary to reveal that the defendant "might have been subject to undue pressure from the police and made his identifications under fear of possible probation revocation." The same potential for bias was not present in this case. Abrahamson's punishment for the previous juvenile offense was not connected to the conviction in this case. Since cross-examination as to previous plea bargaining was allowed, the jury was able to consider Abrahamson's credibility in light of his history of bargaining for leniency in return for testimony.

In People v. King, supra, an informant testified against the defendant who was charged with the possession and sale of narcotic drugs. The court ruled that cross-examination regarding pending charges against the informant for possession and sale of illegal drugs should have been allowed. Again, as in Davis v. Alaska, supra, it was necessary so that the jury could be apprised of the informant's motives. Hidden motives are not at issue in the instant case. Neither the status of pending charges nor other prosecutions depended upon Abrahamson's testimony against the defendant.

The facts here do not establish a conflict between the defendant's right of confrontation and the policy against use of juvenile adjudications or pending charges for purposes of impeachment. The jury was permitted to assess the defendant's credibility in the light of both plea bargains. No evidence of bias or interest of the witness was kept from it. Under the facts of this case, we conclude that the defendant was not denied his right to confront adverse witnesses.

The final issue presented by this case is whether the district court had power to suspend a portion of the defendant's sentence. The defendant was convicted of first-degree arson which is a class three felony, section 18-4-102, C.R.S.1973, and punishable by a prison term of five to 40 years, section 18-1-105, C.R.S.1973. The court first imposed a sentence of five to six years, then suspended three years of the minimum and maximum. The resulting sentence was for two to three years' imprisonment. Since the court of appeals held the People could not raise the issue for the first time on appeal, the court did not reach the merits of the claim that the trial court lacked jurisdiction to suspend the sentence so as to reduce it below the statutory minimum.

As we have recently noted in People v. Henderson, Colo., 586 P.2d 229, 1978, the alleged defect in the sentence is jurisdictional and, therefore, may be raised for the first time upon appeal.

Section 16-11-304, C.R.S.1973 explicitly states the power of judges to sentence for offenses such as that here involved:

"When a person has been convicted of a . . . class 3 felony, the court imposing the sentence . . . shall establish a maximum and a minimum term for which said convict may be imprisoned. The maximum term shall not be longer than the longest term fixed by law . . . and the minimum term shall not be less than the shortest term fixed by law for the punishment of the offense of which he was convicted." ²

It is the legislature's prerogative to define crimes and prescribe punishments. People v. Arellano, 185 Colo. 280, 524 P.2d 305 (1974); People v. Stark, 157 Colo. 59, 400 P.2d 923 (1965). Since the General Assembly explicitly has limited sentencing discretion regarding class 3 felonies, the courts have no jurisdiction to sentence inconsistently with the minimum and maximum terms specified by statute. People v. Pauldino, 187 Colo. 61, 528 P.2d 384 (1974); People v. Jenkins, 180 Colo. 35, 501 P.2d 742 (1972); People v. Jones, 176 Colo. 61, 489 P.2d 596 (1971).

Nor may the court circumvent legislative dictates by first sentencing within legislatively prescribed parameters, and then suspending a portion of the minimum and maximum. The result is an invasion of the legislature's exclusive province to set punishments.

Accordingly, we reverse as to the trial court's sentencing jurisdiction and affirm with respect to the motion to suppress and the scope of cross-examination. We return the case to the court of appeals for remand to the district court with directions that it proceed in accordance with the views expressed herein.

ERICKSON and CARRIGAN, JJ., dissent.

ERICKSON, Justice, dissenting:

I respectfully dissent. In my opinion, the majority has misapprehended the significance of the facts of this case and misconstrued the applicable law.

Defendant's conviction rests largely on the testimony of Bobby Abrahamson, Jr. Although there is other evidence corroborative of defendant's guilt, young Abrahamson's testimony is the lynchpin of the prosecution's case. He testified that defendant had hired him to set fire to the offices of a local attorney and that before the fire he went to defendant's garage and picked up the red and yellow gasoline can which became the object of defendant's ...