People v. Hutto

• Decision Date: 23 April 1973
• Docket Number: No. 25155,25155
• Citation: 509 P.2d 298,181 Colo. 279
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Dannis Carroll HUTTO, Defendant-Appellant.
• Court: Colorado Supreme Court

Page 298

509 P.2d 298

181 Colo. 279

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Dannis Carroll HUTTO, Defendant-Appellant.

No. 25155.

Supreme Court of Colorado, En Banc.

April 23, 1973.

Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., Aurel M. Kelly, Gregory Williams, Asst. Attys. Gen., Denver, for plaintiff-appellee.

Rollie R. Rogers, Colorado State Public Defender, J. A. MacFarlane, Chief. Deputy State Public Defender, Thomas M. Van Cleave, III, Deputy State Public Defender, Denver, for defendant-appellant.

PRINGLE, Chief Justice.

Defendant, Dannis Carroll Hutto, was tried and convicted of burglary in the second degree. The evidence of defendant's guilt consisted of the testimony of his alleged accomplice, Timothy Pyfer, and the corroborating testimony of one Suzanne Laviolette. Defendant maintains that the trial court erred in several respects with regard to Miss Laviolette's testimony, which testimony was crucial to his conviction. We agree and reverse the conviction below.

At trial Pyfer testified that at approximately 3:00 a.m. on September 16, 1970 he and the defendant entered the Placer Inn where they took some money and other items. On cross-examination, Pyfer admitted that after he implicated the defendant with his initial statement to police officers, he asked for leniency. Betty Thatcher, whom the arresting officers contended had given information which caused them to arrest the defendant, testified for the prosecution. She averred that the defendant had denied to her any complicity in the crime and the People did not claim surprise at this testimony.

Upon the defendant's case, an investigator for the Public Defender's office testified that Pyfer had told him defendant was not implicated and had so testified. Thereafter, the defendant took the stand on his own behalf and testified that he had been with Pyfer the evening before the burglary, but had left Pyfer sometime between 12:00 p.m. and 2:00 a.m., and returned to his room. According to the defendant it was not until the next day, when he accompanied Pyfer to Pyfer's motel room, that he became aware that Pyfer had stolen some money.

After the defense rested the People were allowed to call in rebuttal a witness not endorsed on the original information. This witness was Suzanne Laviolette. She testified that at 2:30 a.m. on September 16, 1970, she was parked in the parking lot of the Buffalo Cafe with a person by the name of Joe, whose last name she did not know and whose whereabouts she did not know. She stated that from that point she saw Pyfer and the defendant in the alley behind the Placer Inn. Upon cross-examination she stated that she was not very far from the defendant. Miss Laviolette also admitted she had previously made a written statement to the Idaho Springs Police Department. Defense counsel moved for its production, and the court so ordered. However, neither the police nor the district attorney could find the statement, whereupon the court denied defense counsel's motion to strike her testimony. Miss Laviolette also admitted that the defendant had stopped dating her shortly before the incident.

After excusing Miss Laviolette defendant made a motion, out of the presence of the jury, to present surrebuttal testimony to Miss Laviolette's testimony. Defendant made an offer of proof that he would call investigator Milton who would testify that the distance between the Buffalo Cafe parking lot and the alley behind the Placer Inn is 2 1/2 blocks and it is impossible to see the back of the Placer Inn from the parking lot of the Buffalo Cafe. This motion was denied.

As a corollary to the foregoing the trial court rejected defendant's tendered Instruction No. 16, concerning both the existence or non-existence of corroboration, and the caution to be exercised when weighing the uncorroborated testimony of an accomplice.

I.

It is irrefutable that Miss Laviolette's testimony was crucial. Without that testimony the People's evidence would have consisted primarily of the uncorroborated and contradicted testimony of an alleged accomplice who admitted asking for leniency upon implicating the defendant. In apparent disregard of the importance of Miss Laviolette's testimony, both the trial court and the prosecution contributed to a chain of circumstances surrounding that testimony which improperly prejudiced the defendant. This, we hold, compels reversal.

Since Miss Laviolette was not endorsed as a witness the defendant could not be reasonably expected to conduct his cross-examination as thoroughly as he would if he had known of her existence in advance. He did, however, adduce an admission on her part that she had previously given a written statement to police which they were unable to produce. Without this statement the defendant was denied an important tool in testing the witness' credibility and the...