People v. Jackson

• Decision Date: 27 April 1981
• Docket Number: No. 80SA257,80SA257
• Citation: People v. Jackson, 627 P.2d 741 (Colo. 1981)
• Parties: PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Thomas Edward JACKSON, Defendant-Appellant.
• Court: Colorado Supreme Court

Page 741

627 P.2d 741

PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Thomas Edward JACKSON, Defendant-Appellant.

No. 80SA257.

Supreme Court of Colorado, En Banc.

April 27, 1981.

Rehearing Denied May 18, 1981.

J. D. MacFarlane, Atty. Gen., Richard F. Hennessey, Deputy Atty. Gen., Mary J. Mullarky, Sol. Gen., Lynne Ford, Asst. Atty. Gen., Litigation Section, Denver, for plaintiff-appellee.

Michael S. Kaminski, Denver, for defendant-appellant.

ERICKSON, Justice.

The defendant Thomas Edward Jackson, appeals his convictions by a jury for two counts of theft over $200 but less than $10,000, section 18-4-401, C.R.S.1973 (1978 Repl. Vol. 8); two counts of theft by receiving, section 18-4-410, C.R.S.1973 (1978 Repl. Vol. 8); and two counts of conspiracy to commit theft and theft by receiving, section 18-2-201, C.R.S.1973 (1978 Repl. Vol. 8). He was sentenced to concurrent sentences in the custody of the Department of Corrections of 0 to 4 years for theft and theft by receiving, and 0 to 3 years for conspiracy. The sentences were suspended and the defendant was placed on probation for 3 years and ordered to pay his attorney fees. We affirm the defendant's convictions for theft by receiving and conspiracy to commit theft by receiving. We reverse and remand to the district court with directions to vacate the defendant's convictions for theft and conspiracy to commit theft.

The convictions in this case arise out of a widely publicized police store-front or sting operation in Lakewood, Colorado, which the police used as a means for curbing theft in the greater Denver area. Stolen items such as firearms, stereos, television sets, musical instruments, and automobiles were purchased by undercover agents of the Federal Bureau of Investigation and the Lakewood Department of Public Safety at a Lakewood building that was set up to give the impression that it was the headquarters for a major fencing operation. Between 100 and 200 fencing transactions involving the undercover agents and suspects were monitored and video taped.

The defendant was hired by two men, Sanchez and Ruthewic, and to drive stolen automobiles to the store-front operation in Lakewood. Testimony at trial established that the undercover agents had dealt with Sanchez and Ruthewic on at least a dozen occasions. The defendant drove a stolen 1976 Volvo to the store-front operation and received $200. Later that same day, the defendant delivered a stolen 1977 Oldsmobile to the store-front and received an additional $400. These fencing transactions were monitored and video taped for use at trial.

At trial, the defendant admitted his participation in the fencing of the stolen automobiles. He asserted, however, diminished responsibility as a result of alcoholism and drug addiction, and denied participation in the theft of the automobiles.

The primary issues asserted on appeal relate to the prejudice that the defendant suffered when the jury was allowed to view the video tape of the fencing transactions in its entirety, the refusal of the trial court to instruct the jury on entrapment, and the failure of the trial court to require the prosecution to elect between the charges of theft and theft by receiving in accordance with People v. Lamirato, 180 Colo. 250, 504 P.2d 661 (1972). Our review of the record satisfies us that no error occurred in the admission of the video tape or the refusal of the trial court to instruct the jury on entrapment. However, the failure of the trial court to require the prosecution to elect between the theft and theft by receiving counts requires that we reverse the defendant's convictions for theft and conspiracy to commit theft.

Video Tape

The defendant asserts that the trial court abused its discretion in permitting the jury to view the entire video tape of the fencing transactions. Central to the defendant's objection to the admission of the video tape is his admission of prior crimes and his willingness to participate in future criminal activity, including murder and robbery, to obtain firearms for sale to the store-front operation.

The general rule governing the admissibility of other crimes is set forth in Warford v. People, 43 Colo. 107, 96 P. 556 (1908), where we stated that evidence is not admissible which shows, or tends to show, that the accused has committed a crime wholly independent of the offense for which he is on trial.

In Stull v. People, 140 Colo. 278, 344 P.2d 455 (1959), we imposed limitations on the admission of evidence of other crimes by requiring a showing of a nexus between the offense for which the defendant is presently charged and other criminal transactions, acts, or conduct. In those cases where evidence of other crimes is admissible to show scheme, plan, design, or intent, the trial court is required to instruct the jury as to the limited purpose for which the evidence is offered. People v. Geller, 189 Colo. 338, 540 P.2d 334 (1975); People v. Ihme, 187 Colo. 48, 528 P.2d 380 (1974); Stull v. People, supra.

The defendant alleges first that the video tape contained evidence of other crimes that were not admissible under any of the exceptions to the general rule of exclusion. Second, he alleges that if the evidence of other crimes was admissible under an exception to the general rule, the trial court erred by failing to instruct the jury on the limited purpose which the evidence served. We disagree.

The rule enunciated in Stull v. People, supra, and its progeny, does not govern this fact situation. Stull involved the admission of evidence of other crimes of a similar nature which were wholly independent of the offense charged. See also, People v. Geller, supra. Here, the evidence of other crimes was intertwined with the commission of the offense charged, and was part of the res gestae.

The defendant's admission of past criminal misconduct and his willingness to participate in future criminal conduct was clearly prejudicial. However, where evidence of other crimes occurs as part of the res gestae of the offense, evidence of other crimes is admissible, provided that the evidence is relevant and its probative value is not substantially outweighed by the probability of unfair prejudice to the accused. United States v. Childs, 598 F.2d 169 (D.C.Cir.1979). See People v. Shackelford, 182 Colo. 48, 511 P.2d 19 (1973).

In White v. People, 177 Colo. 386, 494 P.2d 585 (1972), we held that evidence of other crimes was admissible where that evidence was not wholly independent of the offense charged. Here, the defendant's statements occurred as part of his efforts to gain credibility in the fencing of stolen automobiles and in an effort to lay the groundwork for future fencing transactions. The evidence relating to the defendant's willingness to commit other crimes was admissible to show the defendant's knowledge and criminal intent, and fell short of establishing the commission of another crime.

The evidence of other crimes in this case was part of the res gestae of the fencing transactions. The probative value of the evidence was not substantially outweighed by the probability of unfair prejudice to the defendant. ¹ Throughout the trial the defendant contended that due to alcoholism and his former addition to heroin, he did not have the mental capacity to exercise the specific intent required by the theft statute. Defense counsel in his opening statement asked the jury to pay particular attention to the video tapes and to observe the defendant's demeanor. The defendant testified that the video tape accurately portrayed his acts and his contact with the sting operation, but said that he was drunk and was "jiving" or lying to the sting agents. He said that his only previous contact with the law was for fishing without a license, and that all reference to his criminal plans and past activities was to impress the sting agents. The trial court instructed the jury, at the instance of defense counsel, on the affirmative defense of impaired mental condition and on voluntary intoxication. The jury was also instructed on the defendant's theory of the case. The defendant's theory and claim was that his "mental and physical condition was such as to render him incapable of appraising the scope and nature of his conduct." In short, the defendant admitted the commission of the acts, and the accuracy of the video tapes, but claimed that by reason of his impaired mental condition and voluntary intoxication, he could not formulate the intent required to commit the crimes charged.

The evidence of guilt in this case was so overwhelming that to order a new trial would be tantamount to declaring the issue of guilt to be irrelevant. Accordingly, the trial court did not abuse its discretion in allowing the jury to view the video tape in its entirety.

Entrapment

The defendant asserts that the trial court erred by failing to instruct the jury on the affirmative defense of entrapment and, alternatively, that the trial court should have submitted an entrapment instruction to the jury as the defendant's theory of the case. We disagree.

Section 18-1-709, C.R.S.1973 (1978 Repl. Vol. 8), provides:

"The commission of acts which would otherwise constitute an offense is not criminal if the defendant engaged in the proscribed conduct because he was induced to do so by a law enforcement official or other person acting under his direction, seeking to obtain evidence for the purpose of prosecution, and the methods used to obtain that evidence were such as to create a substantial risk that the acts would be committed by a person who, but for such inducement, would not have conceived of or engaged in conduct of the sort induced. Merely affording a person an opportunity to commit an offense is not entrapment even though representations or inducements calculated to overcome the offender's fear of detection are used."

The plain wording of the statute indicates that the defense of entrapment cannot be established in those cases where...