People v. Ray, 79SA347

• Decision Date: 06 April 1981
• Docket Number: No. 79SA347,79SA347
• Citation: 626 P.2d 167
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Larry D. RAY, Defendant-Appellee.
• Court: Colorado Supreme Court

Page 167

626 P.2d 167

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Larry D. RAY, Defendant-Appellee.

No. 79SA347.

Supreme Court of Colorado, En Banc.

April 6, 1981.

Dale Tooley, Dist. Atty., O. Otto Moore, Asst. Dist. Atty., Brooke Wunnicke, Chief Appellate Deputy Dist. Atty., Donna Skinner Reed, Deputy Dist. Atty., Denver, for plaintiff-appellant.

LOHR, Justice.

This is an appeal by the People from a judgment of acquittal granted by the trial court after a jury had been unable to reach a verdict on a second-degree burglary ¹ charge against the defendant, Larry D. Ray. In addition to asserting error in granting the judgment of acquittal, the People challenged the trial court's ruling denying the People's offer of evidence of two allegedly similar transactions. We approve the entry of the judgment of acquittal but disapprove the exclusion of the evidence concerning similar transactions.

On October 26, 1978, during the mid-day absence of Mr. and Mrs. Frank W. Winegar from their Denver residence, someone entered their locked house and stole a number of items of silver and jewelry as well as a down comforter, a bedspread ² and a fur stole. Much of the jewelry was antique and specially designed. No television or other electronic equipment was taken.

Mrs. Winegar discovered the loss when she returned home late that afternoon. She notified the police, who quickly arrived on the scene. Inspection of the premises by the police and Mrs. Winegar disclosed that a milk chute in the back of the house had been broken open and appeared to be the opening through which the burglar had entered the dwelling. The milk chute was approximately 20 inches wide and 14 to 16 inches high. It had two steel doors, one on the outside of the house and the other on the inside, with a space the width of the outside wall between them. Only a latch was maintained on the outer door, but the inner door had been secured by a bar lock, which had been forcibly torn loose from its fastenings.

Police officers obtained five latent fingerprints from the outside surface of the inside milk chute door, and did not attempt to search for additional prints inside the house. One of the latent fingerprints was positively identified at trial as that of the defendant. The poor quality of the other prints prevented identification. No other evidence was presented by the People linking the defendant to the crime. The defendant was not known to the victims and had no permission to enter their home.

Prior to the presentation of any evidence by the People, the defendant moved to suppress evidence of two similar transactions which he understood the People intended to offer. The People made a record with respect to the nature of the evidence and the purposes for which its admission was requested. The trial court reserved ruling pending presentation of other evidence in the People's case. After presenting the other evidence, the People moved to admit the evidence of the two similar transactions for the stated purposes of providing the identity of the perpetrator of the Winegar burglary as well as to show a common scheme, method of operating, and intent.

In her offer of proof, the deputy district attorney described the first incident as having occurred on October 31, 1978, at a residence three to four blocks from the Winegar home. Entry was obtained between 8:30 a. m. and 2:00 p. m. by prying open the back door of the house. Silver and expensive jewelry, including antique items, had been taken, but the stereo, television and cameras were left. A missing pillow slip and a sack, the contents of which had been emptied, may have been used to carry the items. Fingerprints were found on a box in which the silver was kept and, although the offer of proof is not specific, it may be inferred that expert testimony would show the prints to be the defendant's.

The second incident was described in the offer of proof as having taken place on November 3, 1978, at a house within three to four blocks of the other two burglarized residences. There, a woman returned to her home during the day and interrupted a burglary in progress. As she entered her bedroom she saw the defendant leaving through the window. A bag in the kitchen had been emptied and was missing. Jewelry, some of it antique, had been taken, but the stereo and television equipment had not. A broken window in the back bedroom appeared to have been the means of entry. The woman later identified the defendant as the burglar in a photographic lineup.

The trial court concluded that the decision whether to permit the evidence of the other transactions was discretionary and that the question was close. The trial court then stated that it was Thursday afternoon, the second week of the jury panel's service, and that the following Monday would be a holiday; that the second incident was the subject of a charge which had been severed for the charge which the defendant was on trial; that a Wade ³ hearing would be necessary with respect to the identification of the defendant; that the courtroom was hot; ⁴ and that both other incidents were the subjects of charges pending in other divisions of that court. The court then stated:

"(T)o prolong this trial over a long weekend in the middle of the summer with a jury that, it's the Court's impression, is trying very hard to be attentive and having some difficulty with that in terms of the heat of the courtroom, that to prolong this trial would only confuse the issues for both sides and that neither side would necessarily receive as fair a trial as they could if we tried this incident only and left the similars for another time and another place."

After the People rested, the defendant moved for a judgment of acquittal. The motion was denied. The defendant rested without presenting evidence and then renewed his motion for a judgment of acquittal. The trial court reserved ruling on that motion.

The jury deliberations over the course of almost two days, with a three-day weekend interruption, did not produce a verdict, and the trial court declared a mistrial when the jury reported that it was deadlocked. The trial court then granted the defendant's motion for judgment of acquittal on which ruling had previously been reserved.

The People contend that the trial court erred in granting the defendant's motion for judgment of acquittal and in refusing to permit presentation of evidence of the two similar transactions. They ask that the judgment of acquittal be set aside and that a new trial be ordered. Jeopardy has attached, however, and retrial of the defendant is barred. E.g., People v. Waggoner, 196 Colo. 578, 595 P.2d 217 (1979). We treat this matter, therefore, as an appeal pursuant to section 16-12-102, C.R.S. 1973 (1978 Repl.Vol. 8), in which we may only approve or disapprove the trial court's rulings. The defendant has not participated in the appellate proceedings in this court.

I.

The standard by which a motion for judgment of acquittal is to be tested is well settled. In People v. Downer, 192 Colo. 264, 268, 557 P.2d 835, 838 (1976) we said:

"When such a motion (for judgment of acquittal) is before the judge, the issue is whether the relevant evidence, both direct and circumstantial, when viewed as a whole and in the light most favorable to the prosecution, is substantial and sufficient to support a conclusion by a reasonable mind that the defendant is guilty of the charge beyond a reasonable doubt. (Citations omitted.) Only when the evidence is such that the jury must necessarily have a reasonable doubt should the judge direct a verdict in favor of the defendant. The trial court must give the prosecution the benefit of every reasonable inference which might be fairly drawn from the evidence. Finally, the trial court should not attempt to serve as a thirteenth juror or invade the province of the jury in determining the credibility of the witnesses and the weight to be given to various segments of the evidence."

Accord, e.g., People v. Roberts, 197 Colo. 304, 592 P.2d 801 (1979); People v. Martinez, 191 Colo. 428, 553 P.2d 774 (1976); People v. Bennett, 183 Colo. 125, 515 P.2d 466 (1973).

We have also previously considered the applicability of that general test to situations where a defendant is tied to a crime by fingerprint evidence only. In such a case we have said:

"Fingerprints warrant a conviction when the fingerprints clearly and unequivocally establish that an accused committed the crime. To satisfy the requirements of proof in a circumstantial case, the fingerprints which correspond to those of the accused must be found in the place where the crime was committed under such circumstances as to rule out the possibility that they could have been impressed at a time other than the time that the crime was committed. Silva v. People, 170 Colo. 152, 459 P.2d 285 (1969); accord, State v. Tew, 234 N.C. 612, 68 S.E.2d 291 (1951). See also, 28 A.L.R.2d 1149-1157."

Hervey v. People, 178 Colo. 38, 42, 495 P.2d 204, 206 (1972); ⁵ see also, People v. Gomez, 189 Colo. 91, 537 P.2d 297 (1975); People v. Hannaman, 181 Colo. 82, 507 P.2d 466 (1973).

This test has been elaborated in Edmonds v. State, 5 Md.App. 132, 141, 245 A.2d 618, 623 (1968) as follows:

"It has been generally recognized that where, as here, the only evidence of guilt of accused persons consists of their fingerprints found at the scene of the crime, the evidence, to be legally sufficient to sustain a conviction, must be coupled with evidence of other circumstances tending to reasonably exclude the hypothesis that the prints were impressed at a time other than that of the crime. (Citations omitted.) Such "other circumstances" need not be those completely independent of the fingerprint and may properly include circumstances such as the location of the print, the character of the place or premises where it was found and the accessibility of the general public to the object on which the print was...