People v. Knapp

• Decision Date: 08 January 1973
• Docket Number: No. 24868,24868
• Citation: 505 P.2d 7,180 Colo. 280
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Robert KNAPP, Defendant-Appellant.
• Court: Colorado Supreme Court

Page 7

505 P.2d 7

180 Colo. 280

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Robert KNAPP, Defendant-Appellant.

No. 24868.

Supreme Court of Colorado, En Banc.

Jan. 8, 1973.

Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., Tennyson W. Grebenar, Asst. Atty. Gen., Denver, for plaintiff-appellee.

Rollie R. Rogers, Colorado State Public Defender, J. D. MacFarlane, Chief Deputy State Public Defender, Kenneth J. Russell, Deputy State Public Defender, Denver, for defendant-appellant.

ERICKSON, Justice.

A jury convicted Robert Knapp of murder in the first degree, C.R.S. 1963, 40--2--3, and assessed the penalty at life imprisonment. The murder occurred in the course of the robbery of a small grocery store. When the proprietor attempted to protect his store, he was shot to death by the robbers. The defendant and Arthur Scheidt were identified as the robbers and were jointly charged with felony-murder. The defendant, however, was tried separately. He now asserts that error occurred in the trial which requires reversal. Reversible error did not occur, and we, therefore, affirm.

I.

First, the defendant asserts that reversible error was committed in allowing testimony relating to certain hearsay admissions of Arthur Scheidt. The prosecution theory of the case was that Arthur Scheidt, as principal, perpetrated the robbery and murder and that the defendant Knapp was a fully culpable accessory. To convict the defendnat under such a theory, it was necessary to prove the guilt of the principal and then the complicity of the defendant. To prove that Scheidt, the alleged principal, was, in fact, guilty, the prosecution produced two witnesses who recounted admissions wich Scheidt made to them. They testified that Scheidt admitted shooting the grocer during the robbery. Both witnesses said that Scheidt had referred to an accomplice, but that Scheidt did not identify the accomplice.

The defendant contends that the references to an accomplice in Scheidt's admissions fall within the rule announced in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), and require reversal. He says that the admissions are hearsay as to him and deny him the right to confront or cross-examine an absent witness. The trial court endeavored to guard against such misuse by instructing the jury to consider the admissions only as evidence of the alleged principal's guilt and not as any evidence of Knapp's alleged complicity. The defendant, however, contends that the instruction was inadequate to forestall prejudice. Consequently, he claims a violation of the Sixth Amendment right of confrontation. Bruton v. United States, Supra.

It is settled that an admission by the alleged principal may be introduced as evidence of the principal's guilt so long as all references to the defendant-accessory are effectively deleted. Reed v. People, 174 Colo. 43, 482 P.2d 110 (1971); Vigil v. People, 174 Colo. 164, 482 P.2d 983 (1971); Stewart v. People, 161 Colo. 1, 419 P.2d 650 (1966). The issue in this case is whether the defendant was afforded the protection dictated by Bruton v. United States, Supra, when Scheidt's admissions were admitted into evidence indicating that another person was present. The record establishes that the error, if such did occur, was harmless beyond a reasonable doubt. Accord, Schneble v. Florida, 405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972); Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969).

Additional evidence consisting of the testimony of three eyewitnesses established that the robbery was committed by two men. Scheidt's admission that another person was with him or that he had an accomplice could not have affected the jury's verdict in the light of the other evidence which left no doubt that the crime was committed by two men.

II.

Second, the defendant claims that error occurred when the trial court admitted the testimony of Vera Evelyn Sisneros, who was a minor. She testified that the defendant had admitted to her that he and Scheidt robbed the store and that Scheidt had shot the grocer. Her statement to the police was the fruit of interrogation by the police which was conducted in derogation of certain provisions of the Colorado Children's Code. The defendant contends that the Sisneros testimony should have been excluded because it had an illegal origin. The Sisneros testimony was admitted into evidence after the court refused to permit Sisneros to invoke the Fifth Amendment to protect the defendant and denied that the defendant had standing to object to the Sisneros testimony.

Admittedly, the Children's Code was not complied with, but the prosecution claims that the Children's Code is for the protection of the minor that is being questioned and does not exist for the benefit of any third party.

The threshold issue is whether the defendant has standing to object to testimony which is predicated upon a statement obtained from a minor witness in violation of the Children's Code. If the defendant lacks standing to object, the testimony was properly admitted. In construing the Fourth Amendment, the Supreme Court of the United States has held that a person who is only aggrieved by the admission of evidence illegally seized from a third person lacks standing to object. Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969); People v. Towers, Colo., 490 F.2d 302 (1971). The rule of exclusion, in our opinion, was not intended to benefit a defendant whose rights were not violated by causing the exclusion of evidence that was obtained from a third person. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

To us, violations of the type which the defendant alleges provide a more insubstantial foundation for the exclusion of evidence than those which the Supreme Court cast aside in Alderman v. United States, Supra. The minor witness in this case was questioned without the presence of her parents, guardians, or legal counsel as required by Article II, Section 2 of the Colorado Children's Code (Amended 1971). The rights set out in this section of the Children's Code find genesis in the Fifth Amendment privilege against self-incrimination and in the Sixth Amendment right to counsel. U.S.Const. Amends. V and VI; Colo.Const. art. II, §§ 16 and 18.

It is clear that the Fifth Amendment provilege is only against self-incrimination and does not permit a witness to remain silent to avoid incriminating a third party. Accord, Gallegos v. People, 157 Colo. 484, 403 P.2d 864 (1965). The right to counsel is also personal to the witness. No reason exists for exclusion of evidence obtained from an uncounseled witness so long as the evidence obtained is not offered against that witness. People v. Varnum, 66 Cal.2d 808, 59 Cal.Rptr. 108, 427 P.2d 772 (1967). See Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964).

III.

The defendant's third objection relates to the events which preceded his incourt identification by the witnesses Lehmkuhl and Roberts. This third ground for reversal has two parts. The first centers on whether there is a requirement that counsel be provided at a photographic lineup. We have held that counsel need not be appointed when a witness is shown photographs in an attempt to determine who committed a crime. People v. Barker, Colo., 501 P.2d 1041 (1972); Brown v. People, Colo., 494 P.2d 587 (1972).

The second part of his argument is that he was denied due process by the identification procedures which the police used. Lineup cases must necessarily be decided on a case-by-case...