People v. Spinuzzi, 20002
| Decision Date | 05 March 1962 |
| Docket Number | No. 20002,20002 |
| Citation | 149 Colo. 391,369 P.2d 427 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff in Error, v. Joseph E. SPINUZZI, also known as Joseph James Spinuzzi, also known as Joe D. Spinuzzi, also known as Joe Spinuzzi, etc., Defendant in Error. |
| Court | Colorado Supreme Court |
Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., Matt J. Kikel, Dist. Atty., R. Allan Glover, Deputy Dist. Atty., Tenth Judicial District, Pueblo, for plaintiff in error.
No appearance for defendant in error.
In the trial court the defendant in error was charged with the murder of James D. Scott. He pleaded not guilty to the charge and thereafter filed a motion for release on bail, contending that the proof was not evident nor the presumption great of his guilt of the crime charged. After hearing, the motion to set bail was granted and the defendant was released on bail.
On the day set for trial the defendant appeared and requested a continuance, contending that his counsel had been unable to talk to the witnesses because the District Attorney had instructed them to talk to no one about the case. The District Attorney stated that he had not ordered the witnesses not to talk to defense counsel but that he had told them that they did not have to discuss the case with anyone if they did not want to do so. The trial judge thereupon stated that he could not make the witnesses talk if they did not wish to do so but that he would not permit them to testify unless they did talk to the defense counsel. The District Attorney objected to this statement of the trial judge. At any rate, the witnesses did testify at the trial
The pertinent evidence at the trial revealed the following:
The deceased was a musician employed at the Five Queens Club in Pueblo, Colorado. On the night of September 15, 1960, some of his friends came to his place of employment and an argument began between the friends of the deceased and a bartender at the club over 25cents which the deceased's friends had put in the juke box. The deceased became involved in the argument. Thereafter the deceased and his friends were pushed from the club by one Ricci and one Parlato who was the manager of the club. Outside the club, Ricci and Parlato on the one hand and the deceased on the other hand engaged in a fight. They were separated by one Watson and the fight terminated.
At this time, the defendant Spinuzzi, who had been sitting in the club with Ricci and Parlato earlier in the evening, came upon the scene outside the club. Using vile language, he ordered decedent's friends from the premises and threatened to 'blow their brains out.' The deceased's friends left and Spinuzzi then proceeded toward the decedent, exchanged words with him, held a pistol about two feet from his head and then hit and viciously kicked him. Spinuzzi and the deceased wrestled toward the back of a station wagon parked in the area. At this point the decedent fell backword with his head back and his hand in front of his face. Spinuzzi was on top of him as he was falling. A shot was heard. Spinuzzi arose from the body of the deceased with a gun in his hand, put the gun in his belt and walked away. The decedent lay on the ground mortally wounded.
The autopsy revealed a bullet hole in the palm of the hand of the deceased and another in the left nostril with the bullet lodged in the brain. There were powder burns on the deceased's hand where the bullet had gone through. The bullet traveled in an upward direction from its entrance in the deceased's hand to its final resting place in his brain.
At the close of the People's evidence the defendant moved for a directed verdict of acquittal and the motion was granted as to first and second degree murder, leaving voluntary manslaughter and involuntary manslaughter in the case.
Thereupon, the defendant rested without offering any evidence and again moved for a directed verdict as to the remaining counts of voluntary and involuntary manslaughter. The court granted the motion with respect to the remaining charges and directed a verdict of not guilty on all issues.
The People assign error to the action of the trial court in directing a verdict of not guilty and are here by virtue of C.R.S. '53, 39-7-27, which permits writs of error on behalf of the people to review decisions of the trial court upon questions of law arising in any criminal case. The defendant does not appear here. In addition, the People contend that as a matter of law the court also erred in the following particulars:
1. It admitted the defendant to bail.
2. It ordered the People's witnesses to discuss their testimony with defense counsel under the penalty of not being permitted to testify if they did not do so.
3. It limited the purpose for which a photograph of the deceased could be considered by the jury to that of identity of the deceased.
4. It refused to permit a witness to identify the defendant because the identification was not positive.
We direct our attention first to the trial court's action in directing the jury to find the defendant not guilty on all issues. As one of the reasons for granting the motions, the trial court stated that the only connection between the defendant and the death of the deceased was that the defendant was seen getting up off the deceased with a gun in his hand after a shot was fired. The testimony of an eye witness that the defendant approached the deceased with a gun in his hand pointed at the deceased and that shortly before the deceased fell backwards the defendant held his gun as close as two feet from the deceased's head, was not considered by the trial court. There was testimony that as the deceased was falling with the defendant falling on top of him, the deceased held his hand in front of his face. It is significant that there was only one shot and that the bullet which lodged in the deceased's brain and caused his death first passed through the palm of his hand and in an upward direction toward the brain. There were powder burns on the deceased's hand where the bullet entered.
It is true that no one saw the defendant pull the trigger, and no one saw the path of the bullet as it left the gun. But such precision of testimony is not necessary to connect a defendant with a shooting in this state. Ives v. People, 86 Colo. 141, 278 P. 792; Covington v. People, 36 Colo. 183, 85 P. 832. As the evidence stood at the close of the People's case, the defendant was the only person in the area with a gun. He threatened the deceased's friends with this gun and then proceeded toward the deceased and pointed the gun at him. An altercation ensued, a shot was heard and the defendant arose from the body with a gun in his hand. The powder burns on the deceased's hand indicated that the shot was fired at close range. That the defendant had the gun in his hand both before and after the shot was fired; had threatened deceased and others, are compelling circumstances, clearly presenting a question of fact for the jury to determine, not only as to whether the defendant fired the fatal shot, but whether the circumstances were such as to constitute murder in any degree.
The court, in granting the motion for directed verdict, further found that there was no evidence of premeditation or malice, express or implied. In...
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