People v. Romero

• Decision Date: 15 August 1985
• Citation: People v. Romero, 712 P.2d 1081 (Colo. App. 1985)
• Docket Number: 82CA0581
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Santos ROMERO, Jr., Defendant-Appellant. . I
• Court: Colorado Court of Appeals

Page 1081

712 P.2d 1081

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v.Santos ROMERO, Jr., Defendant-Appellant.

No. 82CA0581.

Colorado Court of Appeals Div. I.

Aug. 15, 1985.

Rehearings Denied Sept. 5, 1985.

Certiorari Granted Jan. 13, 1986.

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

David F. Vela, Colo. State Public Defender, Rachel Bellis, Deputy State Public Defender, Denver, for defendant-appellant.

STERNBERG, Judge.

The defendant, Santos Romero, Jr., appeals his conviction on two counts of felony murder and one count of conspiracy to commit second degree sexual assault.He contends that the trial court erred in allowing his prosecution despite a grant to him of immunity for "passive involvement" in the homicides; in allowing the use of post-hypnotic recollections of witnesses at trial; and in allowing the prosecution to amend the felony murder counts after the trial had commenced.We reverse.

In April 1978, the bodies of two young women were found in a canyon near Fort Collins, Colorado.Autopsies performed on the women showed that death had resulted from massive head injuries.At the scene, the police found a forty-three pound rock with blood on it, and an indentation in the ground near one of the bodies which matched the general shape of the rock.There was evidence indicating that the women had been sexually assaulted.

The investigation of these homicides continued throughout a three-year period.During that time, the police had difficulty obtaining information from witnesses, and much of the information they did obtain was fragmented and given sporadically.In November of 1978, police investigators were contacted by a person who claimed that the defendant knew something about the homicides; thereafter, the police interviewed the defendant.The defendant told the police that he had heard his brother, Porfirio Romero, and Joe Salas talking about planning to rape the victims, discussing how and where it could be done, and that later he heard them saying they had killed them.

Subsequently, the defendant was subjected to hypnotic interviews in December 1978 and January 1979.The defendant expressed doubt and confusion about the implications of a hypnotic interview prior to the first one.To allay his doubts, a written agreement with the district attorney's office was obtained in which the prosecution promised "to grant immunity to Santos Romero in regards to his passive involvement in the ... homicide."In exchange for this promise, the defendant agreed to undergo hypnosis in order to help him remember everything he knew about the homicides.No charges had been filed against the defendant at that time, and he was not represented by an attorney.Parts of this interview were recorded, but there is no indication that the police took a written or recorded statement prior to the hypnosis.

In the months following the hypnotic sessions, the defendant made inculpatory or inferentially inculpatory statements about the homicides to police officers, friends, and his ex-wife.A grant of immunity from prosecution was given one of the participants.Eventually, the defendant was charged, prosecuted, and convicted; the two co-defendants were tried separately.

The trial court ruled that the agreement was not a statutory grant of immunity pursuant to § 13-90-118, C.R.S. (1978 Repl.Vol. 8), and concluded that because there was no "common law immunity" applicable to this particular situation, only the statements made by the defendant while under hypnosis had to be suppressed.In so doing, the court erred.

If a defendant enters a guilty plea in reliance on a prosecutorial promise or agreement, he is entitled either to withdraw the plea or to require performance of the agreement.Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427(1971).Although Santobello concerned a plea bargain, the expectation created in a defendant by other apparently official promises, accompanied by detrimental reliance, should likewise be protected.SeePeople v. Manning, 672 P.2d 499(Colo.1983);State ex rel. Plant v. Sceresse, 84 N.M. 312, 502 P.2d 1002(1972);People v. Reagan, 395 Mich. 306, 235 N.W.2d 581(1975).

Such protection is exemplified in People v. Fisher, 657 P.2d 922(Colo.1983) in which the issue concerned a police officer's promise not to use a videotape made by defendant in any criminal prosecution of him.The Colorado Supreme Court held that:

"[B]ecause the officer's promise implicated [the] constitutional rights of the defendant, because the defendant took detrimental action in reasonable reliance upon the promise, and because no other remedy short of enforcement of the promise would secure fundamental...