People v. Watkins, 26359
| Citation | 191 Colo. 440,553 P.2d 819 |
| Decision Date | 23 August 1976 |
| Docket Number | No. 26359,26359 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Larry Dean WATKINS, Defendant-Appellant. |
| Court | Supreme Court of Colorado |
John P. Moore, Atty. Gen., John E. Bush, Deputy Atty. Gen., Donna A. Maranchik, Lynne M. Ford, Janet Lee Miller, Asst. Attys. Gen., Denver, for plaintiff-appellee.
Rollie R. Rogers, Colorado State Public Defender, James F. Dumas, Jr., Chief Deputy State Public Defender, Dorian E Welch, Deputy State Public Defender, Denver, Eugene Beville, Deputy State Public Defender, Colorado Springs, Lee J. Belstock, Deputy State Public Defender, Denver, for defendant-appellant.
This case involves several legal issues surrounding the unique problem of the incourt identification of a defendant whose twin was present at the scene of the alleged crime and the arrest. Defendant was subsequently convicted for dispensing a dangerous drug. 1969 Perm.Supp., C.R.S.1963, 48--8--2. We affirm.
On October 23, 1973, the jury was impanelled and sworn for defendant's trial. The court ordered that the witnesses be sequestered and that they be instructed not to discuss the case with each other. Prior to the taking of evidence, the court learned that the defendant had a twin brother. Thereupon, the court conducted an In camera hearing in order to determine whether the defendant could be identified.
The People and the defendant agreed to the identification procedure. The defendant and his twin were to be placed together in the judge's chambers. Then Agent Rusick, the arresting officer, was to be called in to identify the defendant. If he failed to identify the defendant, Agent Suazo, who assisted in the arrest, would be called to testify on the identity issue. If neither agent could identify the defendant, the charges were to be dropped.
Agent Rusick was then called to testify. He correctly identified the defendant as the person he arrested. Consequently, Agent Suazo was not asked to identify the defendant in chambers.
The trial then proceeded, and the defendant was identified in open court by Agents Rusick and Suazo. At the close of all the evidence, defendant moved for a judgment of acquittal on the grounds that the In camera identification by Rusick of defendant was tainted. Specifically, the defense counsel alleged that the district attorney had told him the previous evening over drinks at a local tavern that Agent Rusick was encouraged by the district attorney Prior to the In camera identification hearing definitely to identify one of the twins as the seller. In the event the agent had difficulty in selecting one of the twins, the district attorney allegedly told him to choose the twin who failed to look the agent directly in the eye. Defense counsel charged that the discussion between Rusick and the district attorney took place after the sequestration order but Before the In camera identification, and in the presence of other witnesses.
Prior to charging the jury, the trial court conducted a full hearing on the 'taint' charges. The defendant's motion of acquittal was denied, the court finding that the factual basis of defense counsel's charges were not substantiated. The court concluded that the In camera identification hearing was conducted fairly, that it was not tainted, and that there was sufficient evidence regarding defendant's identity to take the case to the jury.
Defendant first contends that the incourt identification should have been suppressed or stricken because: (A) the In camera identification hearing was tainted so as to deny defendant due process of law, and (B) the district attorney violated the court sequestration order.
After an extended hearing, the court made written findings of fact and conclusions of law on the 'taint' charges. It found that Agent Rusick and the district attorney had not collaborated regarding the In camera identification hearing. The court found that they discussed the matter After the In camera identification was made and that the district attorney did not accurately portray to defense counsel the sequence of events surrounding his discussion with Agent Rusick about the In camera identification.
Even though the district attorney conferred with Agent Rusick After the In camera identification, defendant contended at trial that a judgment of acquittal should be entered because the district attorney disobeyed the sequestration order. 1
Although the trial court stated that if counsel had privately conferred with the witness there would not have been a violation of the sequestration order, the court agreed with the defendant that the district attorney violated the sequestration order by conferring with Agent Rusick In the presence of other witnesses. Nevertheless, the trial court denied the motion for judgment of acquittal because it found that the violation did not prejudice the defendant.
This court has repeatedly held that the entire matter of regulating the exclusion of witnesses from trial proceedings is within the sound discretion of the trial judge.
'Whether the exclusion is intially invoked, and if invoked, what constitutes a violation thereof, and even if it be determined that there was a violation, what penalty should be imposed or whether the offending witness should be allowed to testify, are all matters resting within the sound discretion of the court.' People v. Romero, 182 Colo. 50, 511 P.2d 466 (1973); Hampton v. People, 171 Colo. 153, 465 P.2d 394 (1970); Gomez v. People, 155 Colo. 507, 395 P.2d 462 (1964); Cruz v. People, 149 Colo. 187, 368 P.2d 774 (1962).
Under the circumstances of this case, we agree with the trial court's finding that the violation of the sequestration order did not prejudice the defendant. Therefore, we hold...
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People v. Jones
...example, it is well-accepted that sequestration orders do not implicate this right. See, e.g. , CRE 615 ; People v. Watkins , 191 Colo. 440, 553 P.2d 819, 821 (1976) (acknowledging that regulating the sequestration of witnesses is a matter of discretion); Williamson v. Sch. Dist. No. 2 , 69......
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People v. Thorpe, 80SA337
...Thorpe from a photographic array goes to the weight of their in-court testimony but not to its admissibility. See, People v. Watkins, 191 Colo. 440, 553 P.2d 819 (1976); Duran v. People, 162 Colo. 419, 427 P.2d 318 (1967). The defendant argues that the trial judge should have made factual f......
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People v. Pickett
...raised an issue that was properly argued to the jury for their consideration in weighing the identification testimony. See People v. Watkins, Colo., 553 P.2d 819. As in People v. Hauschel, Colo.App., 550 P.2d 876, the positive in-court identifications here were firm and based on a reasonabl......
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People v. Johnson, 81SA458
...based on the events which occurred prior to the comments. Huguley v. People, 195 Colo. 259, 577 P.2d 746 (1978); People v. Watkins, 191 Colo. 440, 553 P.2d 819 (1976). We will not overturn the findings of the trial court when the findings are supported by the record, even though we might ha......