People v. Quintana

• Decision Date: 15 September 1975
• Docket Number: No. 26181,26181
• Citation: 189 Colo. 330,540 P.2d 1097
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Robert QUINTANA, Defendant-Appellant.
• Court: Colorado Supreme Court

Page 1097

540 P.2d 1097

189 Colo. 330

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

No. 26181.

Supreme Court of Colorado, En Banc.

Sept. 15, 1975.

Rehearing Denied Oct. 20, 1975.

J. D. MacFarlane, Atty. Gen., Edward G. Donovan, Sol. Gen., John P. Moore, Atty. Gen., John E. Bush, Deputy Atty. Gen., James W. Wilson, Asst. Atty. Gen., Dale Tooley, Dist. Atty., Brooke Wunnicke, Chief App. Deputy Dist. Atty., Denver, for plaintiff-appellee.

Flynn Kimerer, Thinnes & Galbraith, John J. Flynn, Tom Galbraith, Phoenix, Ariz., Dennis Blewitt, Denver, for defendant-appellant.

GROVES, Justice.

This opinion is announced simultaneously with People v. Ciari, Colo., 540 P.2d 1097 and People v. Broncucia, Colo., 540 P.2d 1101.

The defendant was convicted of perjury and conspiracy to commit perjury. He and Ciari were tried together. The filed separate appeals and, while these were consolidated for oral argument, we write separate opinions. We affirm.

The gist of the evidence against the defendant is: that the defendant and others agreed to testify falsely at an extradition hearing of one Griswold; that extradition of Griswold was sought by Nevada on criminal charges resulting from an alleged 'diamond switch' there committed by Griswold; that, in exchange for defendant's testimony, Griswold agreed to testify at an apparently unrelated hearing involving the defendant; that Quintana met with Griswold, Tomeo, and several other alleged conspirators before the extradition hearing; and that contacts between them continued up to the time of that hearing.

I

Defendant's major contention is that there was a variance between the charge contained in the indictment and the proof. He asserts that although one conspiracy, involving all the alleged perjurers, was charged, the prosecution proved at least four conspiracies, only one of which involved the defendant. He contends that this variance resulted in prejudice to him. Although the evidence would have been admissible in the proof of a single conspiracy, at least some of the evidence would have been inadmissible in the proof of multiple conspiracies. He relies upon Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946).

The conspiracy in Kotteakos was interpreted to be a 'wheel,' or 'spoke' conspiracy. One Brown applied for loans under the National Housing Act on behalf of several individuals who did not know or have any contact with one another. The court found that, though only one conspiracy was charged, eight separate conspiracies with similar objects were made out by the evidence. The court speaking of Kotteakos in a later case stated:

'Each loan was an end in itself, separate from all others, although all were alike in having similar illegal objects. Except for Brown, the common figure, no conspirator was interested in whether any loan except his own went through. And none aided in any way, by agreement or otherwise, in procuring another's loan. The conspiracies therefore were distinct and disconnected, not parts of a larger general scheme . . .. There was no drawing of all together in a single, over-all, comprehensive plan.' Blumenthal v. United States, 332 U.S. 539, 68 S.Ct. 248, 92 L.Ed. 154 (1947).

The facts of the instant case are otherwise. Although this too is clearly a spoke conspiracy, that fact does not preclude the finding of one conspiracy. See W. LaFave and A. Scott, Criminal Law § 62 (1972). Here, there was a single overall plan with a common object--to prevent the extradition of Griswold. The success or failure of the conspiracy depended upon the successful linkage of each member's testimony. The perjury of one person was not and could not have been an end in itself as in Kotteakos, supra.

The trial court, in this case, considered Kotteakos, but found that the testimony was sufficient to establish circumstantially a single conspiracy to commit perjury involving all these defendants. See also People v. Incerto, 180 Colo. 366, 505 P.2d 1309 (1973).

The defendant stresses that he was unfamiliar with Ciari's testimony, and that he did not meet all the alleged co-conspirators. This alone does not merit a reversal of the trial court's finding of one conspiracy. The United States Supreme Court in Blumenthal v. United States, supra, stated:

'We think that in the special circumstances of this case the two agreements were merely steps in the formation of the larger and ultimate more general conspiracy. In that view it would be a perversion of justice to regard the salesmen's ignorance of the unknown owner's participation as furnishing adequate ground for reversal of their convictions. Nor does anything in the Kotteakos decision require this. The scheme was in fact the same scheme; the salesmen knew or must have known that others unknown to them were sharing in so large a project; and it hardly can be sufficient to relieve them that they did not know, when they joined the scheme, who those people were or exactly the parts they were playing in carrying out the common design and object of all. By their separate agreements, if such they were, they became parties to the larger common plan, joined together by their knowledge of its essential features and broad scope, though not of its exact limits, and by their common single goal.

'The case therefore is very different from the facts admitted to exist in the Kotteakos case. Apart from the much larger number of agreements there involved, no two of those agreements were tied together as stages in the formation of a larger all-inclusive combination, all directed to achieving a single unlawful end or result. . . . There was no drawing of all together in a single, over-all, comprehensive plan.'

See also, United States v. Jackson, 482 F.2d 1167, Cert. denied, 414 U.S. 1159, 94 S.Ct. 918, 39 L.Ed.2d 111 (1973); and Anderson v. Superior Court, 78 Cal.App.2d 22, 177 P.2d 315 (1947).

In our view there was no fatal variance.

II

Defendant next argues that he was...