People v. Trujillo, 91CA0355

Citation860 P.2d 542
Decision Date17 December 1992
Docket NumberNo. 91CA0355,91CA0355
PartiesThe PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Andrew Franklin TRUJILLO, Defendant-Appellant. . IV
CourtCourt of Appeals of Colorado

Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., A. William Bonner, Asst. Atty. Gen., Denver, for plaintiff-appellee.

David F. Vela, State Public Defender, Samuel Santistevan, Deputy State Public Defender, Denver, for defendant-appellant.

Opinion by Judge BRIGGS.

Defendant, Andrew F. Trujillo, appeals the judgments of conviction entered on jury verdicts finding him guilty of two counts each of simple robbery, aggravated robbery, crime of violence, and conspiracy to commit aggravated robbery. The convictions involve the robbery of five convenience stores and a motel over the course of a month. Defendant also appeals the judgment in his initial sanity trial entered on a jury verdict finding him sane during the commission of the crimes charged, and challenges the sentences entered on the aggravated robbery counts. We affirm the judgments on all counts, but vacate the sentences on the aggravated robbery counts and remand for resentencing.

I.

Defendant asserts for the first time on appeal that at both trials the court's advisements and findings pursuant to People v. Curtis, 681 P.2d 504 (Colo.1984) were insufficient. The court did not advise defendant that, if he elected not to testify, the jury could be instructed that no negative inferences should be drawn from his silence. Defendant contends that his decisions whether to testify at the two trials were therefore not voluntarily, knowingly, and intelligently made. We are not persuaded.

Defendant chose not to testify at the sanity trial. Consequently, the asserted deficiency in the Curtis advisement could not have adversely impacted his decision to remain silent. Hence, we need address the issue only in regard to the trial on the merits, in which the defendant chose to testify.

It is the duty of the trial court to ascertain whether a defendant's decision to testify or remain silent is made voluntarily, intelligently, and knowingly. People v. Curtis, supra. In People v. Mozee, 723 P.2d 117 (Colo.1986), our supreme court acknowledged that an advisement and determination on the record regarding the effectiveness of a waiver of the privilege against self-incrimination helps assure that the waiver is effective and facilitates meaningful appellate review without significantly impeding trial court proceedings. However, the court concluded that "the absence of such an on-the-record advisement and determination of waiver before the defendant testifies will not automatically render a defendant's waiver invalid." People v. Mozee, supra, at 124.

The record reflects that, with the exception of advising defendant that the jury could be instructed not to draw any negative inferences from his silence, the court gave a complete Curtis advisement during defendant's initial sanity trial and further discussed with defendant his right to testify or remain silent prior to his decision not to testify. Defendant presumably had also been advised of his right to remain silent at his first appearance. See People v. Mozee, supra.

At the trial on the merits, the court gave an equally complete Curtis advisement. It addressed in detail the advantages and disadvantages of testifying, and again specifically informed defendant of his right to remain silent. Following this, the court twice asked the defendant whether he understood his rights and whether he wished to testify on his own behalf. Defendant acknowledged that he understood his rights, that he had discussed the decision with his attorney, and that the decision was his, and not his attorney's.

Statements made by defendant after his Curtis advisement at the trial on the merits indicate that his decision to testify arose from the unavailability of witnesses he had intended to call to present his theory of the case and not from his concern about any inferences the jury might draw from his silence. Defendant has not asserted, and there is no evidence indicating, that his decision would have been different had the court made a more complete Curtis advisement. See People v. Mozee, supra.

We conclude that the trial court's determination that defendant's decision to testify was voluntarily, intelligently, and knowingly made is supported by competent evidence in the record. See Roelker v. People, 804 P.2d 1336 (Colo.1991). Therefore, that decision provides no basis for reversing the convictions.

II.

Defendant next contends that his conviction for conspiracy to commit aggravated robbery of the motel must be vacated because there is no evidence independent of his admission to establish the corpus delicti. We disagree.

A conviction cannot rest solely on a defendant's pre-trial confession. The corpus delicti of a crime must be proved by evidence independent of a confession. The corpus delicti ordinarily consists of a penally proscribed injury, such as a body in a homicide, and unlawful conduct causing the injury. People v. Smith, 182 Colo. 31, 510 P.2d 893 (1973); McCormick on Evidence § 145 (E. Cleary 4th ed. 1992).

"Only slight" corroborating evidence is required, and it can be direct or circumstantial. It is enough if the additional evidence is sufficient to convince the jury that the crime charged is real and not imaginary. People v. Quinn, 794 P.2d 1066 (Colo.App.1990).

The difficulty in analyzing the corpus delicti in inchoate crimes such as conspiracy, attempt, and solicitation is that there is no tangible injury which can be isolated as the corpus delicti. See Smith v. United States, 348 U.S. 147, 75 S.Ct. 194, 99 L.Ed. 192 (1954). A more appropriate analysis in these circumstances is to determine whether there is evidence independent of the confession or admissions which would tend to establish the truthfulness of the defendant's statements. See State v. Parker, 315 N.C. 222, 337 S.E.2d 487 (1985); McCormick on Evidence, supra.

Here, defendant in his pre-trial confession stated that he drove to the motel with two others named Haxton and Taylor for the purpose of robbing the motel. Defendant and Haxton waited in the parking lot while Taylor robbed the motel with a handgun. Defendant correctly identified a photograph of Taylor as the person who had committed the robbery. Defendant told the police officer to whom he confessed that the handgun Taylor used was the same .25 caliber chrome-plated handgun that a different confederate named Hall had used in a robbery two days later. Defendant admitted he also drove the getaway car in that robbery.

At trial, the victim of the motel robbery gave a description of the handgun which matched that given by defendant in his pretrial confession. She further testified that the gun being held by Hall in a surveillance photo taken during the second robbery looked "exactly" like the gun used in the first robbery. When Taylor and Hall were arrested the police found a handgun like that in the photo.

Because not all the same concerns about the reliability of out-of-court confessions and statements exist when statements are made in open court, judicial confessions and admissions do not ordinarily require the same corroboration. See State v. Schomaker, 303 N.W.2d 129 (Iowa 1981); McCormick On Evidence, supra. Although defendant claimed he was coerced, he testified at trial he was in the getaway van during the second robbery by Hall. Defendant also testified that he provided a statement to the district attorney pertaining to his involvement with Taylor, who then, along with Hall, pled guilty.

We conclude that the independent corroboration of defendant's description of the handgun by the first robbery victim, defendant's correct identification of Taylor's photograph as that of the robber, the recovery of the handgun when Taylor and Hall were arrested, and defendant's testimony at trial together provide sufficient independent evidence tending to establish the truthfulness of defendant's admitted participation in a conspiracy to rob the motel.

III.

Defendant contends that the jury's guilty verdicts on two charges of conspiracy to commit aggravated robbery must be vacated because they are inconsistent with the not guilty verdicts on the charges of aggravated robbery for the same two robberies. The argument is that the only evidence of the conspiracies, defendant's confession, also establishes that defendant drove the getaway cars in the two robberies. Thus, he asserts that, as in Robles v. People, 160 Colo. 297, 417 P.2d 232 (1966), the conspiracy verdicts cannot stand. The People argue that the verdicts are not inconsistent because the crimes involve different elements of proof.

Neither party has addressed whether defendant is precluded from challenging the verdicts by acquiescing in a response the trial court apparently provided to a jury question on this precise point. We conclude that he is.

We note at the outset that the court did not give a standard carrying instruction in the form of COLJI-Crim. No. 38:02 (1983). This instruction, which should explain to the jury whether its verdict on one count will control the verdict on another, is to be given whenever there is more than one count charged in the information or indictment. However, defendant did not object at trial and has not challenged the omission on appeal.

After jury deliberations had begun, the court informed counsel for both parties of a question asked by the jury. The question was whether the jury could convict on the charges of conspiracy to commit aggravated robbery without convicting on the charges of aggravated robbery and crime of violence.

The court stated to counsel, "And my answer, of course, is yes. Any objection to that?" Both the prosecutor and defense counsel responded that there was...

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  • People v. LaRosa
    • United States
    • Supreme Court of Colorado
    • February 11, 2013
    ...to apply to certain crimes, in part because statutory crimes have proliferated and become more complex. See People v. Trujillo, 860 P.2d 542, 545 (Colo.App.1992) (noting that no tangible injury can be isolated as the corpus delicti for inchoate crimes such as conspiracy, attempt, or solicit......
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