People v. Penno

• Decision Date: 28 April 1975
• Docket Number: No. 26129,26129
• Citation: People v. Penno, 534 P.2d 795, 188 Colo. 307 (Colo. 1975)
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Charles A. PENNO, Defendant-Appellant.
• Court: Colorado Supreme Court

Page 795

534 P.2d 795

188 Colo. 307

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Charles A. PENNO, Defendant-Appellant.

No. 26129.

Supreme Court of Colorado, In Department.

April 28, 1975.

John P. Moore, Atty. Gen., John E. Bush, Deputy Atty. Gen., E. Ronald Beeks, Asst. Atty. Gen., Denver, for plaintiff-appellee.

Rollie R. Rogers, State Public Defender, James F. Dumas, Jr., Chief Deputy State Public Defender, Thomas M. Van Cleave III, Deputy State Public Defender, Denver, for defendant-appellant.

PRINGLE, Chief Justice.

The defendant, Charles Penno, was convicted of aggravated robbery for the August 16, 1971 holdup of a Denver Seven-Eleven store. On this appeal the defendant claims that the trial court impermissibly allowed a pistol he had in his possession at the time of his arrest to be introduced into evidence. We affirm.

At Penno's trial, two employees of the Seven-Eleven store identified the defendant as the perpetrator of the crime and testified that he pointed a small caliber chrome-plated or nickel-plated revolver at them during the robbery. Detective John Garrison of the Denver Police Department was permitted to testify that when he arrested the defendant on August 21, 1971, he recovered a .22 caliber revolver in Penno's possession. People's Exhibit I was identified as this weapon and admitted into evidence. Officer Dale Burkhardt of the Denver Police Department testified that the pistol was in good working condition. The defendant claims that since neither of the eyewitnesses to the crime identified the pistol or said that the pistol was similar to the weapon used in the robbery, the admission of the pistol into evidence was improper and impermissibly prejudicial to his case.

The test for determining the relevancy of real evidence was set out in Washington v. People, 158 Colo. 115, 123, 405 P.2d 735, 738, cert. denied, 383 U.S. 953, 86 S.Ct. 1217, 16 L.Ed.2d 215 (1966), in which we said that the real evidence 'must only be connected in some manner with either the perpetrator, the victim or the crime.' The defendant cites Stewart v. people, 162 Colo. 122, 426 P.2d 548 as requiring the exclusion of the pistol from evidence under this test. In Stewart the prosecutor introduced four one-hundred dollar bills found on the person of the defendant when he was apprehended in the act of committing a burglary. The court held this evidence inadmissible because it was in no way connected with the burglary and had no relevancy to the issues in the case.

However, evidence that the defendant may have possessed weapons or instruments which could be used in the commission of the crime with which the defendant was charged have been found to be admissible under...