People v. Thorpe, 80SA337

• Decision Date: 08 February 1982
• Docket Number: No. 80SA337,80SA337
• Citation: 641 P.2d 935
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Gary THORPE, Defendant-Appellant.
• Court: Colorado Supreme Court

Page 935

641 P.2d 935

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Gary THORPE, Defendant-Appellant.

No. 80SA337.

Supreme Court of Colorado, En Banc.

Feb. 8, 1982.

Rehearing Denied March 15, 1982.

J. D. MacFarlane, Atty. Gen., Richard F. Hennessey, Deputy Atty. Gen., Mary J. Mullarkey, Sol. Gen., Morgan Rumler, Asst. Atty. Gen., Litigation Section, Denver, for plaintiff-appellee.

Jane S. Hazen, Denver, for defendant-appellant.

LEE, Justice.

The defendant-appellant, Gary Thorpe, was convicted by jury of murder in the first degree, aggravated robbery, and conspiracy to commit aggravated robbery. We affirm the convictions.

On October 12, 1978, William Sather, proprietor of Sather Jewelry in Denver, was shot to death during an aggravated robbery of his store. An information was filed against the defendant and Richard Banks on November 14, 1978 charging them with first degree murder. The defendant, who was 16 years of age at the time, was charged in the district court pursuant to section 19-1-104(4)(b)(I), C.R.S.1973 (1978 Repl. Vol. 8). ¹ Separate trials were granted on motion of the defendant.

On November 17, 1978, while the defendant was in custody and after he and Banks had been arraigned, he contacted Officer Thomas P. Haney of the Denver Police Department. In response to the call, Haney went to the detention center and spoke with the defendant in the presence of his mother. Haney advised the defendant of his rights and left him alone with his mother to discuss the situation. Thereafter, the defendant indicated that he wished to make a statement and Haney returned and recorded it. In the statement, the defendant described his role in the robbery and claimed that Banks had killed the victim.

At trial the people presented evidence that the defendant's palm prints had been identified on a display case in the jewelry store and that Banks' fingerprints had been found inside a watch case. Two witnesses, Rodney Chavez and Raymond Riggins, identified the defendant as the black man they had seen running in the alley behind the jewelry store, just before the robbery was discovered. The defendant was seen carrying boxes in a white cloth. They also saw a green Cadillac driven by a white man whom they identified as Banks.

Patrice Hill testified that on the morning of October 12, 1978, the defendant and Richard Banks entered the house she shared with Banks, John James, and her sister. The defendant was carrying a white bundle and Hill noticed blood on his clothing. She also identified a green Cadillac that she had seen the defendant drive.

John James testified that Richard Banks had earlier asked him to assist with the robbery, but James declined to do so. He stated that on October 12 the defendant had entered his house wearing bloody clothing and carrying a white bundle out of which some jewelry fell. James stated that he gave the police information regarding the robbery hoping to receive consideration on assault charges Patrice Hill had filed against him. He was released and the charges were dropped after he gave the statement.

The defendant raises the following arguments for reversal of his conviction. First, he contends that section 19-1-104(4)(b)(I) is unconstitutional and its application to him denied him due process and equal protection of the law. Second, the defendant asserts that it was prejudicial error to deny his motion to suppress his statement and to admit the statement into evidence. Third, it was error to admit the identification testimony of witnesses Rodney Chavez and Raymond Riggins. Finally, the defendant argues it was prejudicial error to admit two photographs of the murder victim which he contends were not probative of any issue and served only to inflame the jury. We discuss the issues raised in order.

I.

Defendant's constitutional argument is based on his contention that section 19-1-104(4)(b)(I), C.R.S.1973 (1978 Repl. Vol. 8), is invalid because it allows a district attorney to charge a child 14 years of age or older alleged to have committed a crime of violence defined as a class 1 felony, with the commission of a felony and to prosecute the child in a criminal proceeding in the district court rather than as a juvenile in the juvenile court. The defendant reasons that the decision of the prosecutor to charge a juvenile as an adult when there are no statutory guidelines and without a prior hearing cannot be constitutionally justified as a valid exercise of prosecutorial discretion. Since there is no hearing prior to the charging process at which the juvenile may be present and heard, and be represented by counsel, the argument goes, he is denied due process. Furthermore, since the prosecutor may choose to prosecute one 14-year-old violent offender as an adult and another 14-year-old violent offender as a juvenile, and since there are no statutory criteria to guide him in making that decision, the statute denies one in the defendant's position equal protection of law.

The defendant recognizes that the proposition he urges us to adopt is contrary to this court's decision in Myers v. District Court, 184 Colo. 81, 518 P.2d 836 (1974), which considered a predecessor section of the Juvenile Code, now codified as section 19-1-104(4)(b)(II), C.R.S.1973 (1978 Repl.Vol. 8). ² In Myers we held:

"Petitioners' final argument is that the broad discretion granted to the district attorney by C.R.S.1963, 22-1-4(b)(iii) denies them due process and equal protection of the laws.

"It is well settled that a prosecutor has constitutional power to exercise his discretion in deciding which of several possible charges to press in a prosecution. See People v. Couch, 179 Colo. 324, 500 P.2d 967 (1972); People v. James, 178 Colo. 401, 497 P.2d 1256 (1972); People v. McKenzie, 169 Colo. 521, 458 P.2d 232 (1969). It follows that the district attorney may properly invoke the concurrent jurisdiction of the district court under C.R.S.1963, 22-1-4(b)(iii) and C.R.S.1963, 22-1-3(17)(b)(iii) in deciding to proceed against a person between the ages of sixteen and eighteen in district rather than juvenile court. United States v. Cox, 473 F.2d 334 (4th Cir. 1973); United States v. Bland, 472 F.2d 1329 (D.C.Cir.1972)." (Footnote omitted.)

In People v. District Court, 191 Colo. 28, 549 P.2d 1317 (1976), we again upheld the exercise of prosecutorial discretion. In a juvenile proceeding the district attorney elected to amend the petition in delinquency to include a more serious felony, thus causing the case to be transferred for trial as a criminal case. We there stated:

"It is clear that the design of the statute is to permit the juvenile court, in case of a less serious felony, to determine in a transfer hearing whether, in the best interests of the accused juvenile, the case should be transferred to the criminal side of the court, section 19-1-104(4)(a); but in those circumstances where a more serious felony is charged, as set forth in subsections (4)(b)(I), (II), and (III), no such discretion lies in the court to retain the case in the juvenile side of the court when the district attorney elects to have the case transferred for trial as a criminal action." People v. District Court, supra.

The prohibition against judicial intervention in or control of the exercise of prosecutorial discretion flows from the doctrine of separation of powers, expressly set out in Article III of the Colorado Constitution and inherent in the enumerated powers of the United States Constitution. The defendant acknowledges this firmly established principle and recognizes our many decisions upholding the exercise of discretion by a prosecutor in determining what charges shall be brought. See, e.g., People v. District Court, 186 Colo. 335, 527 P.2d 50 (1974) (prosecutor's election not to consent to deferred prosecution); People v. Couch, 179 Colo. 324, 500 P.2d 967 (1972) (election to proceed under a felony statute rather than misdemeanor statute); People v. James, 178 Colo. 401, 497 P.2d 1256 (1972) (determination by prosecutor under which statute to prosecute); People v. McKenzie, 169 Colo. 521, 458 P.2d 232 (1969) (election to charge defendant as a felonious possessor of marijuana rather than as a misdemeanant user).

The defendant, however, would have us overrule Myers, supra, and People v. District Court, supra, and adopt an exception to the principle of prosecutorial discretion in juvenile cases. He urges that we adopt the view espoused by the dissent in the case of United States v. Bland, 472 F.2d 1329 (D.C.Cir.1972), that since the consequences to the child from his prosecution in a criminal case vary so significantly from those flowing from a juvenile proceeding, the child should be afforded the same protections as he would have were the case filed in the juvenile court and transfer to the criminal division sought. See, sections 19-1-104(4)(a), 19-1-107, and 19-3-108, C.R.S.1973 (1978 Repl. Vol. 8).

The defendant cites Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966), in support of his argument that a hearing with the assistance of counsel is required before the "critically important" decision is made to put the child through the criminal court process. This case, though instructive, lends no support to his position. There, the Federal Juvenile Court Act required a waiver of jurisdiction by the juvenile court before criminal proceedings could be brought by the United States Attorney. ³ The Federal Juvenile Code vested original and exclusive jurisdiction of a child in the juvenile court and contained no provisions for a direct filing in a criminal proceeding, as does our statute, section 19-1-104(4)(b)(I).

We decline to require that a quasi-judicial hearing be held by the district attorney as a precondition to his determination that a child 14 years of age or older alleged to have committed a crime of violence defined as a class 1 felony shall be prosecuted in a criminal proceeding. The...