People v. Small, 24791

• Decision Date: 24 January 1972
• Docket Number: No. 24791,24791
• Citation: 177 Colo. 118,493 P.2d 15
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Arthur Everett SMALL, Jr., Defendant-Appellant.
• Court: Colorado Supreme Court

Page 15

493 P.2d 15

177 Colo. 118

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Arthur Everett SMALL, Jr., Defendant-Appellant.

No. 24791.

Supreme Court of Colorado, En Banc.

Jan. 24, 1972.

Arthur Everett Small, Jr., pro se

Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., Michael T. Haley, Asst. Atty. Gen., Denver, for plaintiff-appellee.

ERICKSON, Justice.

Arthur Everett Small, Jr., was the defendant in the trial court and is the appellant here. The defendant was convicted of aggravated robbery and conspiracy to commit aggravated robbery, and he was thereafter sentenced to the Colorado State Penitentiary. He has appealed from the judgment and sentence of the trial court and has alleged that errors occurred which require either dismissal of the charges against him or reversal and a new trial. As grounds for reversal or dismissal, the defendant has presented four primary issues for us to pass upon. He claims that he was denied a speedy trial. He also asserts that his conviction followed the trial court's improper instructions to the jury on the credibility of witnesses and of an accomplice and should, therefore, be set aside. Another contention, is that the statutory crime of robbery is so ambiguous in its terms that it is unconstitutional. His last argument is that the evidence was insufficient to sustain a conviction. We affirm.

THE FACTUAL BACKGROUND

The defendant, together with William D. Karstens, Donald B. Cheatham, and John T. Brazil, was at the outset jointly charged with aggravated robbery and conspiracy to commit aggravated robbery. Prior to the trial, on the defendant's motion, a severance was ordered, and the defendant was granted the right to be tried separately from the other defendants. After the severance was granted, the other defendants entered into The events which resulted in the filing of the information centered around the robbery of Kelley's Bar and Grill. All of the defendants, with the exception of Arthur Everett Small, Jr., were Vietnam war veterans who were receiving treatment at Fitzsimons General Hospital. The evidence at the trial established that on April 4, 1969, Karstens picked up Brazil and Cheatham in a blue Ford Falcon that was owned by the defendant Small. The three defendants had agreed to meet Small at the Barmaid Bar. When the parties met, Small and Karstens, according to the testimony, told the other defendants that a holdup of Kelley's Bar and Grill would not between $4,000 and $8,000 which would be equally divided among the four participants in the robbery. After the meeting at the Barmaid Bar, Small gave the other three defendants a briefcase which contained two revolvers and some ammunition.

a plea agreement and plead guilty to the crime of conspiracy. Both Brazil and Cheatham were subsequently granted probation and left the State of Colorado. The prosecution also dismissed all pending charges against them. They were both endorsed as prosecution witnesses against Small. At the trial, Brazil and Cheatham provided evidence that amply tied the defendant Small into the robbery and conspiracy.

The plan which the defendants formulated at the Barmaid Bar was that all of the patrons in Kelley's Bar and Grill would be put in the basement through a trap door which was located behind the bar so that an escape could be effected after the robbery was completed. The record reflects that Small drove Karstens, Cheatham, and Brazil to Kelley's Bar and Grill. Small was to remain in the get-away car during the robbery and keep the motor running so that the car could be used by the defendants to escape. While the robbery was being perpetrated, Small's car started to smoke, and the engine died and could not be started. The robbery, however, was carried out as planned with the revolvers provided by Small but was not as successful as the parties had anticipated and netted only $175. When Karstens, Cheatham, and Brazil left Kelley's Bar and Grill, they got into the car with Small to effect a get-away, but they soon realized that the car was disabled. Once escape in Small's Falcon was frustrated and the defendants' plight became known, all four defendants abandoned the car and started running from the site of the crime. However, Small soon left the other defendants and decided to return and retrieve his broken-down car. Small's car required that the battery be jumped, and the defendant was fortunate in finding a friend in the area who was willing to assist him in the use of a jumper cable to get his car started. After Small and his friend got the car started, Small left the scene in his Falcon and was arrested not long thereafter by the police. All of the defendants, with the exception of Small, were arrested within six blocks of the robbery, hiding in various places, and in possession of the revolvers provided by Small and the money taken in the robbery.

At the trial, the defendant, in an effort to refute the testimony of Brazil and Cheatham, took the stand and denied that he knew any of the other defendants. As a witness, Small admitted that he had been convicted of two felonies. He also testified that he was not a participant in the robbery or the conspiracy to commit the robbery. On cross-examination, Small admitted giving the police a statement which contradicted his testimony that the other defendants had gotten into his car after the robbery was committed and had threatened him and ordered that he drive them from the scene of the crime. In Small's statement to the police, he said that the defendants got out of his car when it could not be started and that he chased the other defendants for a distance and then thought better of it in view of his past convictions. Small told the court and jury that he just didn't want to get involved in the robbery or to be implicated in any way with the other defendants.

At the trial, in inculpating the defendant Small, Brazil and Cheatham admitted their

plea agreement and even disclosed that their lawyer had informed them they would be charged with offenses that had been dropped and would be returned to Colorado in handcuffs if they did not appear at the defendant's trial and testify. Both Brazil and Cheatham admitted that they had been granted immunity from further prosecution when they testified. They also admitted using the guns provided by Small in the robbery and denied any intent to harm the robbery victims while admitting that they made menacing gestures and used threatening language in carrying out the robbery.

I. SPEEDY TRIAL

The defendant was granted a separate trial. Various delays occurred in causing the case to be set for trial stemming from illness of defense counsel, disqualification of one trial judge, illness of another trial judge, and at least four motions for a continuance that were directly attributable to the defendant. One of the defendant's motions for a continuance was predicated upon the prosecution's endorsement of Brazil and Cheatham as witnesses for the prosecution.

In viewing the record, we must conclude that much of the delay that is now claimed to be of constitutional dimension is directly attributable to the defendants' own requests. The information in the instant case was filed on April 9, 1969, and trial was commenced on March 30, 1970, well within the period prescribed by Crim.P. 48(b). The record is devoid of evidence of prejudice to the defendant, apart from the fact that he was unable to make bail.

A defendant is guaranteed a speedy trial by our Constitutions. U.S. Const., Amend. VI; Colo.Const., art. II, § 16. The circumstances surrounding each case must be looked at to determine whether or not the defendant has been granted a speedy trial. Casias v. People, 160 Colo. 152, 415 P.2d 344 (1966). Basically, a speedy public trial is a trial consistent with the court's business. Medina v. People, 154 Colo. 4, 387 P.2d 733 (1964). The one-year proscription of Crim.P. 48(b) defines the outside limits for prosecution, and prejudice to the defendant could dictate that a case be dismissed for failure to grant a speedy trial, even though the one-year period set forth in the rule has not expired. Scott v. People, Colo., 490 P.2d 1295 (1971); Jaramillo v. District Court, Colo.,484 P.2d 1219 (1971). However, the defendant has the burden of establishing that he was denied a speedy trial and was prejudiced as a result of that denial. Ziatz v. People, 171 Colo. 58, 465 P.2d 406 (1970). Here, the delays which occurred are not solely attributable to the prosecution but must be recognized to be in part a product of the defense.

II. JURY INSTRUCTIONS

The defendant has claimed that the court erred in not sustaining objections to the court's instructions to the jury. The court's instructions encompassed every aspect of the case before the court. The instructions relating to the credibility of witnesses squared with the Colorado Pattern Jury Instructions and were properly given. See Colorado Pattern Jury Instructions, 3.15.

Inasmuch as the testimony that inculpated the defendant in both the conspiracy and the robbery came from...