People v. Madonna
| Decision Date | 09 August 1982 |
| Docket Number | No. 79SA550,79SA550 |
| Citation | 651 P.2d 378 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Brian Richard MADONNA, Defendant-Appellant. |
| Court | Colorado Supreme Court |
J. D. MacFarlane, Atty. Gen., Richard F. Hennessey, Deputy Atty. Gen., Mary J. Mullarkey, Sol. Gen., Mary E. Ricketson, Asst. Atty. Gen., Denver, for plaintiff-appellee.
J. Gregory Walta, Colorado State Public Defender, Margaret L. O'Leary, Deputy State Public Defender, Denver, for defendant-appellant.
The defendant, Brian Richard Madonna, appeals his convictions on two counts of criminal attempt to obtain a narcotic drug by fraud and deceit, sections 18-2-101 and 12-22-319, C.R.S.1973 (1978 Repl.Vol. 8 and 1978 Repl.Vol. 5), and one count of conspiracy to obtain a narcotic drug by fraud and deceit, sections 18-2-201 and 12-22-319 C.R.S.1973 (1978 Repl.Vol. 8 and 1978 Repl.Vol. 5). 1 He contends that the trial court erred in denying his motion to suppress an out-of-court photographic identification which he claims was illegal, and an in-court identification, which he claims was tainted by the improper photographic identification. He also claims that the court erred in admitting into evidence a transcript of a deceased witness' suppression testimony relating to the photographic identification. He challenges other evidentiary rulings regarding prior inconsistent statements and similar transactions. He contests the consecutive sentences ordered by the court. 2 Finally, he asserts he was improperly found guilty of contempt of court and improperly sentenced to a ninety day jail sentence to run consecutively to all other sentences. We affirm the convictions, but reverse the judgment of contempt and remand for further proceedings.
The charges in this case arose from two separate transactions involving forged prescriptions for dilaudid, a narcotic drug. On September 21, 1977, a man who identified himself as a Denver physician telephoned the Westlake Pharmacy in Loveland, Colorado, and requested the pharmacist to fill a prescription for dilaudid. The pharmacist checked the Denver telephone directory for the doctor's name and learned that he was listed as an obstetrician and gynecologist. The pharmacist then attempted to verify the prescription by calling the doctor's office but was unable to speak with the doctor. Sometime later another call was received from a person claiming to be the doctor and the pharmacist agreed he would fill the prescription. After receiving this call, the pharmacist observed a man, who had been standing near the counter, leave the store. The pharmacist grew suspicious and followed the man out of the store in an effort to obtain a license plate number but was not successful. Another man was standing behind a telephone booth, outside the store, but he left when he saw the pharmacist.
The next day, September 22, a man identified as Robert Hanneman entered the Alco Pharmacy in Loveland and presented a prescription for dilaudid. The pharmacist checked the prescription by telephoning the clinic listed on the prescription. After ascertaining that the doctor who purportedly issued the prescription was an obstetrician, the pharmacist telephoned the police. An officer arrived and arrested Hanneman, who told the officer that three men had paid him $10 to have the prescription filled.
Several days after Hanneman's arrest, while he was being held in the Larimer County Jail, a Loveland police detective showed him photographs of the defendant and Rodney Robitz, taken by the Morgan County Sheriff's Department on September 17, 1977. Hanneman was asked if "these were the same parties involved with him in the incidents at Westlake and Alco [pharmacies]." Hanneman identified both men. Although he was certain of his photographic identification of Robitz, he was somewhat tentative in his identification of the defendant, because, as he explained, the second man had worn sunglasses the entire time Hanneman was with him. The defendant was thereafter arrested and charged. 3
Prior to trial the defendant moved to suppress Hanneman's photographic identification arguing that it was obtained in a manner so impermissibly suggestive as to violate due process of law. He also sought suppression of any in-court identification of the defendant, arguing that such identification would necessarily be the product of the illegal photographic identification.
At the suppression hearing Hanneman testified that on September 21, 1977, three men had approached him at 19th and Larimer Streets in Denver and offered to pay him $10 for each prescription for dilaudid he was able to have filled. He agreed and they drove to Loveland where one of the men impersonated a doctor and telephoned the Westlake Pharmacy while another man went inside posing as a customer. Hanneman testified that the following day the same men picked him up in Denver and again drove to Loveland to attempt to pass a prescription at the Alco Drugstore. The man whom he knew as Brian, later identified as the defendant, wrote out a prescription in the front seat of the vehicle. Hanneman took it into the drugstore to have it filled and was subsequently arrested.
Hanneman testified that he had been with the defendant and Robitz for several hours on both September 21 and 22. Regarding the photographic identification he had made while confined in the Larimer County Jail, he stated that it had no influence on his present in-court identification of the defendant. The court denied the motion to suppress and admitted the in-court identification, ruling that it had not been tainted by the prior out-of-court identification.
On the first day of trial the prosecution informed the court that Hanneman had died of cancer. The prosecution sought to offer into evidence a transcript of Hanneman's testimony at the suppression hearing. To prove the unavailability of the witness the prosecution offered into evidence a death certificate for "Robert R. Hennemann" and presented testimony from the officer who had arrested Hanneman to the effect that the date of birth and other personal data provided to him by Hanneman at the time of the arrest matched the information on the death certificate. The court ruled that Hanneman's death had been established and his suppression testimony would be admitted under the prior testimony exception to the hearsay rule.
During the prosecution's case, Hanneman's suppression testimony, including that part relating to the photographic identification of the defendant and Robitz, was read to the jury.
The prosecution's case also included evidence of another attempted drug purchase in Brush, Colorado on September 17, 1977. In this incident a taxi driver was paid $10 to present a prescription for dilaudid at a drugstore and then deliver the dilaudid to a person whom the driver later identified as the defendant. The taxi driver's arrival at the pharmacy was preceded by a telephone call from someone purporting to be the prescribing physician. The pharmacist became suspicious of the call and contacted a police officer who arrived on the scene. With the cooperation of the taxi driver the officer was able to arrest the defendant and Robitz shortly after the driver attempted to deliver the dilaudid to the defendant at a specified location.
After the prosecution rested, defense counsel sought to impeach Hanneman's suppression testimony by offering into evidence, through the testimony of the arresting officer, Hanneman's custodial statements which allegedly were inconsistent with his former testimony. These statements related to the circumstances surrounding Hanneman's initial meeting of the defendant and his role during the incident at the Alco Pharmacy. 4 The court refused to admit the statements on the ground that defense counsel was aware of the statements at the time of the suppression hearing but failed to utilize them to impeach Hanneman on that occasion.
The jury found the defendant guilty of both counts of criminal attempt to obtain a narcotic drug by fraud and deceit and guilty of conspiracy to obtain a narcotic drug by fraud and deceit. The court sentenced the defendant to not less than four and not more than five years on each count, the sentences to run consecutively to each other. This appeal followed.
The defendant claims that the court erred in denying his motion to suppress the out-of-court and in-court identification by Hanneman because the out-of court identification was so suggestive as to violate due process of law, U.S. Const. amend. XIV; Colo.Const. art. II, sec. 25, and the in-court identification was the product of that illegal identification. We conclude that Hanneman's in-court identification of the defendant was properly admitted during the trial. In addition, we hold that under the circumstances of this case, the admission of Hanneman's pre-trial photographic identification of the defendant was harmless error, and therefore does not require a new trial.
A defendant is denied due process of law when an in-court identification is based on an out-of-court identification which is so unnecessarily suggestive as to render the in-court identification unreliable. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); People v. Mack, 638 P.2d 257 (Colo.1981). A pre-trial identification procedure that is so unnecessarily suggestive as to violate due process is inadmissible. E.g., Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969); Stovall v. Denno, supra. When such a constitutional violation is established, an in-court identification by the witness is permissible only if the prosecution proves by clear and convincing evidence that the in-court identification is not the product of the unconstitutional procedure but, rather, is based upon an independent source, such as the witness' observations of the accused during the...
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