People v. Nave, 82CA0997

• Citation: 689 P.2d 645
• Decision Date: 15 March 1984
• Docket Number: No. 82CA0997,82CA0997
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Melvin W. NAVE, Defendant-Appellant. . I
• Court: Court of Appeals of Colorado

Page 645

689 P.2d 645

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Melvin W. NAVE, Defendant-Appellant.

No. 82CA0997.

Colorado Court of Appeals Div. I.

March 15, 1984.

Rehearing Denied April 19, 1984.

Certiorari Denied Sept. 24, 1984.

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Dolores S. Atencio, Asst. Atty. Gen., Denver, for plaintiff-appellee.

Massaro & Nugent, Edward J. Nugent, Sp. Deputy Public Defender, Grand Junction, for defendant-appellant.

BERMAN, Judge.

Defendant, Melvin W. Nave, appeals from his conviction for theft over $200. We affirm.

On January 26, 1982, at about 9:45 p.m., the victim returned to his home in Denver to find that it had been broken into, ransacked, and that various stereo and camera equipment and coins had been stolen. At about 10:00 p.m., Denver police officers Larry Clay and Horace McGilberry responded to the victim's burglary call and took a report.

Approximately three hours later, these same officers were responding to a silent alarm, when they observed the defendant and his co-defendant walking across the street carrying several large items. When the defendant and his cohort saw the police car, they dropped the items and began to run. Officer Clay chased the two men, but lost them, whereupon he broadcast a description of the two suspects and returned to recover the dropped items.

A few minutes after hearing Officer Clay's radio description, Officer Rodney Huskey and his partner, while on routine patrol, observed two persons matching the description broadcast by Officer Clay walking across the street. Officer Huskey notified Officers Clay and McGilberry of their observation and intention to stop the two suspects.

Officers Clay and McGilberry immediately responded to Officer Huskey's call and, upon arrival at the scene of detention, identified defendant and his confederate, assumed custody, and arrested them. Both suspects were breathing heavily, their hearts were beating rapidly, and they had dried grass in their hair.

The defendant and his cohort were tried together, the jury found defendant guilty of theft over $200, and the court imposed sentence. This appeal followed.

I.

Defendant's first contention is that the trial court erred in denying defendant's motion to dismiss, which motion was based on the police department's destruction of a taped radio broadcast of Officer Clay's description of the two robbery suspects after his chase in the early morning hours of January 27, 1982. We disagree with defendant's contention.

We note initially that the attorney general conceded the existence of a due process violation on oral argument, while nevertheless maintaining in its written brief that no due process violation occurred. Since the existence of due process is a question of law, we are not bound by the attorney general's oral concession. See C.R.A.H. by Pueblo County concerning P.M.M., 647 P.2d 239 (Colo.App.1981) (appellate court may decline to accept a concession of error). Here, we find the attorney general's brief to be the more accurate statement of the applicable law.

The test for determining whether a defendant's due process rights have been violated when evidence has been lost or destroyed is:

"(1) whether the evidence was suppressed or destroyed by the prosecution; (2) whether the evidence is exculpatory; and (3) whether the evidence is material to the defendant's case." People v. Holloway, 649 P.2d 318 (Colo.1982).

Here, at the very least, the third prong of the test cannot be met. Therefore, there was no violation of defendant's due process rights.

We note first that, here, defense counsel did not request preservation of the dispatch tape of January 27, 1982, until March 1, 1982--33 days after defendant's arrest, and three days after the 30-day period for routine destruction of dispatch tapes for that date had expired. Hence, as stated in People v. Bynum, 192 Colo. 60, 556 P.2d 469 (1976), the reason that the prosecution could not produce a tape upon defense counsel's request was that "it was routinely destroyed before its possible value, and quite possibly its existence, was made known to the prosecutor through a request from the defense." People v. Bynum, supra.

Second, we hold that the January 27, 1982, dispatch tape was not material to defendant's case. Our Supreme Court held in Bynum, supra, that:

"[The] mere possibility that an item of undisclosed information might have helped the defense or might have affected the outcome of the trial, does not establish 'materiality' in the constitutional sense.... The proper test is not one of deciding whether the non-disclosure is completely harmless, but of determining whether the omitted evidence would have created a reasonable doubt as to defendant's guilt that did not exist otherwise. [This] strict standard of materiality [applies] in cases, as here, where the evidence is not produced because it was innocently destroyed by the state."

Here, as was the case in Bynum, supra, the subject matter of the tape at issue was disclosed through the detailed testimony of several prosecution witnesses. Officer Clay testified that after observing the defendant and his cohort for approximately 15 to 25 seconds under lighted conditions, he aired the following description:

"One party approximately 5 foot 7 inches wearing a dark blue jacket, blue pants and a white or light colored hat. The second party was about 5 feet tall, wearing a black leather jacket and dark pants."

Officer Huskey testified that the description that he and his partner heard aired was as follows:

"Two black males, one approximately 5 foot 7 inches wearing a light colored hat, blue jacket, possibly jean-type, possibly blue jean pants; the second party was much smaller, approximately 5 feet tall, wearing a dark coat and blue jeans."

Given this consistent testimony of the contents of the broadcast, we conclude the tape could not have created a reasonable doubt as to defendant's guilt.

Further, we note that:

"[T]he trial court has broad discretion in fashioning a proper remedy to protect the defendant's rights where there has been a loss or destruction of evidence. However, many remedies short of dismissal of the charges may be imposed which will adequately protect the defendant's rights. Dismissal is a drastic remedy to be reserved for situations where no other sanction would attain the proper result." People v. Holloway, supra.

The defendant received a fair trial under the circumstances here. The trial court had several alternatives, short of dismissal of the charges, which it exercised,...