People v. Hodges

• Decision Date: 09 February 1981
• Docket Number: No. 27553,27553
• Citation: 624 P.2d 1308
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Jack C. HODGES, Defendant-Appellant.
• Court: Colorado Supreme Court

Page 1308

624 P.2d 1308

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Jack C. HODGES, Defendant-Appellant.

No. 27553.

Supreme Court of Colorado.

Feb. 9, 1981.

Rehearing Denied March 9, 1981.

J. D. MacFarlane, Atty. Gen., Richard F. Hennessey, Deputy Atty. Gen., Mary J. Mullarkey, Sol. Gen., Susan P. Mele-Sernovitz, Asst. Atty. Gen., Denver, for plaintiff-appellee.

J. Gregory Walta, Colorado State Public Defender, Shelley Gilman, Deputy State Public Defender, Denver, for defendant-appellant.

ROVIRA, Justice.

Jack Hodges (defendant) was convicted of the unlawful sale of a narcotic drug with intent to induce or aid another to unlawfully use or possess the drug and conspiracy to commit such violation. ¹ He argues on appeal (1) that the trial court erred in making certain statements when ruling on the admission of evidence and (2) that there was insufficient evidence to support a conviction of the crime charged. We affirm.

The charges against the defendant arose out of the same transaction reviewed by this court in People v. Vandiver, 191 Colo. 263, 552 P.2d 6 (1976). ²

Briefly stated, the facts as they relate to the defendant are as follows. During the summer of 1972, Kenneth P. Brown and David DeChant were working as undercover narcotics agents in Durango, Colorado. Brown contacted George O'Neal ³ and represented himself to be a purchaser of drugs. O'Neal indicated that he had a source of supply and could obtain a substantial amount of heroin. The discussions between Brown and O'Neal extended over a period of approximately six weeks.

O'Neal contacted the defendant, and arrangements were made for Brown and DeChant to purchase heroin from the defendant for $10,300. On the evening of August 28, 1972, the defendant and Vandiver took O'Neal to the motel where Brown and DeChant were staying. Later in the evening, the undercover agents and O'Neal went to a small house south of Durango. Upon arriving at the house, Brown and O'Neal were met by the defendant and went inside while DeChant remained outside. The defendant had a gun strapped to his waist and warned Brown that his partner (Vandiver) was outside with a gun and that he would kill Brown if he was a "narc."

The defendant told Brown that the heroin he had for sale was good and that it could be "stepped on" twice. ⁴ He then showed Brown a brown, powdery substance contained in two bags which were on a scale.

Subsequently, the substance was tested by Brown and DeChant; and after assuring themselves that it was heroin, they paid the defendant and O'Neal the amount agreed upon. After the payment, both defendant and O'Neal were arrested. Shortly thereafter, Vandiver was seen by other officers walking out of a nearby garage. Inside the garage, police officers found a cocked pistol with a cartridge in the chamber lying on the ground near Vandiver's wallet.

The defendant testified on his own behalf, and the gist of his testimony was that his participation in the transaction resulted from his desire to help O'Neal and to "rip off" Brown and DeChant by selling them a mixture of Nestle's Quik chocolate and ground up codeine tablets, falsely represented to be Mexican brown heroin. He contended that real heroin had been substituted for the brown, powdery substance which he sold the police officers and that, whatever its source, the substance identified and admitted as an exhibit in his trial was not what he sold the police. The jury evaluated the evidence and found the defendant guilty.

I.

Defendant claims that the trial court erred in not granting his motion for mistrial because of two statements made by the trial judge when he was ruling on the admission of certain testimony and of an exhibit during the direct examination of the prosecution witness Brown. The defendant characterizes the statements of the trial judge as improper comments on the sufficiency of the evidence and an invasion of the province of the jury.

In the first instance the witness Brown was being examined by the district attorney concerning his first contact with the alleged coconspirators on August 28, 1972. Brown testified that he received three telephone calls from O'Neal that day, and, during the last call received about 8:30 p. m., O'Neal said that "he was on his way over and had some news about the deal for me." Defense counsel objected on the grounds of hearsay and that before any statement of O'Neal could be received in evidence, if it involved a coconspirator, the conspiracy must first be established.

Prior to this testimony, the trial court had heard extensive testimony from Brown concerning his meeting with the defendant, the sale and purchase of the heroin, and the arrest of the defendant, Vandiver, and O'Neal.

In response to the defense objection, the trial court stated:

"I think we have an overt act established by the Defendant concerning the transaction itself. That is the exchange of heroin for money. Now, this would be an overt act. O'Neal was present and I think he can testify as to the fact that made up the conspiracy, the overt act having already been established."

The second claimed error arose when the People moved the admission of the pistol found in the garage near Vandiver's wallet.

Upon objection by the defendant on the ground of relevancy, the People argued that, inasmuch as one of the charges against the defendant was conspiracy, they were entitled to introduce the weapon recovered from Vandiver, who was the person referred to by the defendant when he told Brown that his partner was outside with a gun and that he would kill Brown if he was a "narc." Defendant then argued at length and in detail that, while the pistol might possibly be admissible "under the res gestae of the crime of sale," it could not be considered in establishing a charge of conspiracy.

The trial court responded to these arguments in the following words:

"Well, I am going to admit the evidence because of the face (sic) that there has been sufficient evidence to show some sort of to show a conspiracy. Mr. Vandiver was at the scene of this sale, as has been shown by Mr. Brown's testimony. There was a connection between the Defendant and Mr. Vandiver, as Mr. Vandiver was warned by Mr. Hodges to come on out, to give himself up, and he had previously warned the witness that there was a man outside who was armed. And later, this exhibit was brought into this witness. And he witnessed Mr. Vandiver outside of the house. I think there is sufficient evidence of working together between the Defendant and Mr. Vandiver to establish the overt act necessary, and the exhibit will be admitted."

The defendant moved for a mistrial after the direct examination of Brown was concluded and a recess had been held. The court denied the motion on the grounds that its rulings had been responsive to the defendant's evidentiary objections.

The trial court in submitting the case to the jury gave an instruction which stated in pertinent part that "the rulings and orders made by the Court and the remarks made by the Court during the trial and not directed to you, should not be considered by you in arriving at your verdict. The Court did not by any words uttered during the trial ... give or intimate, or wish to be understood by you as giving or intimating, any opinion as to what has or has not been proven in this case, nor as to what are or are not the facts in this case."

The grant or denial of a mistrial rests on the trial court's sound discretion and will not be disturbed on appeal absent gross abuse of discretion to the prejudice of the defendant. People v. Sexton, 192 Colo. 81, 555 P.2d 1151 (1976). See People v. Alvarez, 187 Colo. 290, 530 P.2d 506 (1975). In this case we find that the court's rulings did not invade the independent factfinding province of the jury. The judge's comments on the evidence were not personal and did not go to the weight of the evidence. Cf. Sheftel v. People, 111 Colo. 349, 141 P.2d 1018 (1943). The remarks were an explanation of the court's rulings in response to the arguments of counsel. See People v. Garcia, 186 Colo. 167, 526 P.2d 292 (1974). Our reading of the record supports the court's rulings, and we hold that under the circumstances the court's statements did not warrant the granting of a mistrial. The jury was aware that the defendant was charged with conspiracy, and the court's instruction to the jury properly cautioned them on the court's role and clarified the nature of their decision making. ⁵

II.

The defendant contends that there was insufficient evidence to establish that he sold or conspired to sell narcotic drugs with the intent to induce or aid another to use or possess drugs under the "hard sale" statute.

The defendant argues that in order to satisfy the specific intent requirement set forth in the "hard sale" statute the prosecution must prove beyond a reasonable doubt that the defendant initiated and solicited the sale in question. In support of this proposition, the defendant cites People v. Bourg, 191 Colo. 309, 552 P.2d 504 (1976); People v. Patterson, 187 Colo. 431, 532 P.2d 342 (1975); People v. Bowers, 187 Colo. 233, 530 P.2d 1282 (1975).

However, as we clearly indicated in Mundt v. People, 195 Colo. 145, 576 P.2d 165 (1978), those earlier decisions do not stand for the proposition that a conviction under the "hard sale" statute cannot be obtained if the police initiated or solicited the sale. We stated that all of the circumstances surrounding the transaction must be considered and that, in the absence of direct evidence of specific intent, circumstantial evidence may be sufficient to support the inference that the specific intent of the seller of narcotic drugs was to engage in the conduct proscribed by the statute. People v. Bowers, supra.

The question to be resolved then is whether, taking into consideration all of the evidence including the fact that the police officers initiated the contact with O'Neal, the record contains...