People v. Montera, 27775

• Decision Date: 02 July 1979
• Docket Number: No. 27775,27775
• Citation: 596 P.2d 1198
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Joseph L. MONTERA, Defendant-Appellee.
• Court: Colorado Supreme Court

Page 1198

596 P.2d 1198

198 Colo. 156

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Joseph L. MONTERA, Defendant-Appellee.

No. 27775.

Supreme Court of Colorado, En Banc.

July 2, 1979.

J. D. MacFarlane, Atty. Gen., David W. Robbins, Deputy Atty. Gen., Edward G. Donovan, Sol. Gen., John R. Rodman, Asst. Atty. Gen., Denver, for plaintiff-appellant.

Clark, Martin & Pringle, Bruce D. Pringle, Denver, for defendant-appellee.

CARRIGAN, Justice.

The People here appeal pursuant to section 16-12-102, C.R.S.1973, seeking disapproval of the trial court's judgment of acquittal and its dismissal of a three-count grand jury indictment. We disapprove the trial court's actions.

On September 17, 1976, the People filed a grand jury indictment charging the defendant with three counts of official misconduct allegedly committed while he was chief of the Trinidad Police Department, in violation of section 18-8-404, C.R.S.1973. Count I alleged that on July 9, 1975, the defendant,

". . . utilized a City of Trinidad purchase order Number 003985, and his official position and title as Chief of Police to order firearms at reduced prices and with tax benefits afforded only to police departments and then resold and transferred said firearms to persons who were not officers and employees of the Trinidad Police Department . . . ."

Count II asserted that on August 12, 1975, the defendant, as police chief,

". . . utilized a City of Trinidad purchase order Number 006005, and his official position and title as Chief of Police to order firearms at reduced prices and with tax benefits afforded only to police departments and then resold and transferred said firearms to persons who were not officers and employees of the Trinidad Police Department . . . ."

Count III alleged that on July 25, 1975, the defendant,

". . . utilized his official position and title as Chief of Police to order, from Rocky Mountain Police Supply, two Smith & Wesson Model 60 handguns, at reduced prices and with tax benefits afforded only to police departments and then resold and transferred said firearms to persons who were not officers or employees of the Trinidad Police Department . . . ."

Subsequently the People submitted a bill of particulars which provided detailed information regarding the firearms referred to in the indictment and the persons to whom they allegedly had been sold, as follows:

"Count I

1) Colt Python (serial no. E86455) resold to Glen Oberling.

2) Smith & Wesson 36 resold to Bob Valdez.

3) Smith & Wesson 36 retained by defendant.

"Count II

1) Colt Python (serial no. E96256) resold to Arthur Winter.

2) Colt Python (serial no. 02232E) resold to Arthur Winter.

3) Colt Python (serial no. 1724E) resold to Frank Milinazzo.

4) Colt Python (serial no. 01004E) resold to Frank Patrick Shew.

5) Colt Python (serial no. 02631E) resold to Lawrence Pino.

6) Colt Python (serial no. 92671E) resold to Debra Herpel.

7) Colt Python (serial no. 03064E) resold to Gary Goodman.

"Count III

1) Smith & Wesson Model 60 (serial no. R128796) resold to Eddie Clements.

2) Smith & Wesson Model 60 (serial no. R125640) resold to Eddie Clements."

At trial the People stated in their opening statement that with respect to Count I the evidence would show that the defendant had used a purchase order to obtain three firearms and that one of these had been sold to Glen Oberling, a person not employed by the Trinidad Police Department. No mention was made of any proof relating to the other two guns in Count I.

As to Count II, the People asserted, in opening statement, that the evidence would show that the defendant had used a purchase order to obtain seven weapons, and that three of these has been sold to persons not members of the Trinidad Police Department. Finally the People, in opening, stated that the evidence would show that both weapons referred to in Count III had been sold to Clements, who was not a member of the Trinidad Police Department.

At the conclusion of the People's opening statement the defendant moved for a judgment of acquittal. The trial court granted this motion and dismissed the indictment. The court ruled that the People's statement that they intended to prove some, but not all, of the transactions set forth in the first two counts of the indictment constituted an impermissible substantive amendment to the grand jury indictment resulting in a fatal variance. Since the trial had already started, the court ruled that jeopardy had attached and therefore the case had to be dismissed.

We disapprove ...