People v. Warren, 27797

• Decision Date: 03 July 1978
• Docket Number: No. 27797,27797
• Citation: 582 P.2d 663,196 Colo. 75
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Nick Ernest WARREN, Defendant-Appellant.
• Court: Colorado Supreme Court

Page 663

582 P.2d 663

196 Colo. 75

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Nick Ernest WARREN, Defendant-Appellant.

No. 27797.

Supreme Court of Colorado, En Banc.

July 3, 1978.

Rehearing Denied Aug. 28, 1978.

J. D. MacFarlane, Atty. Gen., David W. Robbins, Deputy Atty. Gen., Edward G. Donovan, Sol. Gen., Lynne Ford, Asst. Atty. Gen., Denver, for plaintiff-appellee.

Nicholas J. Bourg, Colorado Springs, for defendant-appellant.

CARRIGAN, Justice.

Nick Ernest Warren appeals his convictions by a jury of second-degree burglary, ¹ conspiracy to commit burglary, ² felony theft, ³ aggravated robbery, ⁴ conspiracy to commit aggravated robbery, ⁵ and use of a deadly weapon in the commission of robbery, a "crime of violence." ⁶ We reverse the convictions and remand for a new trial.

The crimes charged were allegedly committed by six persons, the appellant Warren, Johnson, Girard, Albers, and two juveniles, Hendricks and Jones. The two juveniles testified that by mutual agreement the six had burglarized the home of Johnson's father, stealing several items, including guns which were used later the same evening to rob a liquor store.

According to the testimony, Warren, Jones, and Hendricks robbed the liquor store at gunpoint, then fled in Girard's car, in which Girard and the two others were waiting. The storekeeper followed and fired several shots, whereupon the car hit a fence and the six occupants fled on foot.

Three of the participants, Girard, Albers and Hendricks, were arrested later that night when they went to the police station to report Girard's car as stolen. This report was apparently an attempt to provide a "cover story" for use of the car in the robbery. Another participant, Jones, was found and arrested during a consent search of Hendricks' apartment. Jones described the appellant to police and gave an address where he thought the appellant could be found. About two blocks from the suggested address, two officers saw a person matching the description given by Jones. One officer greeted the person by the appellant's name. When he responded to that name, and his movements caused the officers to observe a revolver on his person, the officers arrested him.

After repeated pretrial motions for severance were denied, ⁷ Warren, Girard, and Albers were jointly tried before a jury. Warren and Albers both testified. Each stated in essence that he was not at the scene of either crime. Girard did not testify, but he too presented a defense intended to show that he had not participated in the crimes. The defendants' motions to sever were renewed and denied at the close of the prosecution's case and again at the conclusion of all the evidence.

The jury found the appellant Warren guilty of all charges, including the "crime of violence." Girard was convicted of all charges except the "crime of violence." Albers was acquitted of all charges except conspiracy to commit robbery. Each has brought a separate appeal to this court. ⁸

In this case, the appellant raises the following issues: (1) whether the trial court erred in denying severance of defendants; (2) whether a mistrial should have been declared when one witness referred to the appellant's prior record; (3) whether section 16-10-104, C.R.S.1973, dealing with peremptory challenges, is unconstitutional; (4) whether the appellant's arrest was based on probable cause; and (5) whether other errors had the cumulative effect of denying a fair trial. We agree with the appellant's first contention, that the trial court should have granted separate trials, and therefore reverse and remand for a new trial. Because of this disposition of the case, we need not address the other issues.

The standards for relief from joinder of defendants are established in Crim.P. 14, as follows:

"If it appears that a defendant or the prosecution is prejudiced by a joinder of offenses or of defendants in any indictment or information, or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance of defendants, or provide whatever other relief justice requires.

However, upon motion any defendant shall be granted a separate trial as of right if the court finds that the prosecution probably will present against a joint defendant evidence, other than reputation or character testimony, which would not be admissible in a separate trial of the moving defendant. . . ."

A motion for severance is directed to the sound discretion of the trial court, ⁹ and absent an abuse of that discretion resulting in prejudice to the moving defendant, denial of the motion will not be disturbed on appeal. People v. Maestas, 183 Colo. 378, 517 P.2d 461 (1973); People v. Trujillo, 181 Colo. 350, 509 P.2d 794 (1973).

Factors to be considered in determining whether denial of severance constitutes an abuse of discretion include the following: (1) whether the number of defendants or the complexity of evidence is such that the jury will probably confuse the evidence and law applicable to each defendant; (2) whether, despite admonitory instructions, evidence admissible against one defendant will improperly be considered against another; and (3) whether the defenses presented are antagonistic. People v. Maestas, supra. See also Eder v. People, 179 Colo. 122, 498 P.2d 945 (1972); A.B.A. Standards for Criminal Justice Relating to Joinder and Severance (1968).

In this case, we conclude that a number of factors, each of which standing alone might not require severance, combined to deny this appellant "a fair determination of guilt or innocence." Eder v. People, supra.

First of all, the appellant elected to take the stand and testify in his own behalf, while the co-defendant, Girard, did not. Obviously, the appellant's attorney could not comment on Girard's silence, for to do so would have violated Girard's Fifth Amendment rights. Nonetheless, as we recognized in Eder v. People, supra, there is a distinct element of unfairness, albeit not always prejudicial, in denying one co-defendant any favorable inference to be drawn from the other's silence, for it prohibits him from urging upon the jury every point favorable to his case. See also DeLuna v. United...