People v. Wieghard

• Citation: 727 P.2d 383
• Decision Date: 24 April 1986
• Docket Number: No. 83CA0945,83CA0945
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Robert A. WIEGHARD, Defendant-Appellant. . III
• Court: Court of Appeals of Colorado

Page 383

727 P.2d 383

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Robert A. WIEGHARD, Defendant-Appellant.

No. 83CA0945.

Colorado Court of Appeals,

Div. III.

April 24, 1986.

Rehearing Denied May 22, 1986.

Certiorari Denied (Wieghard) Oct. 14, 1986.

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Maureen Phelan, Asst. Atty. Gen., Denver, for plaintiff-appellee.

David F. Vela, Public Defender, Claire Levy, Deputy Public Defender, Jane S. Hazen, Sp. Deputy Public Defender, Denver, for defendant-appellant.

VAN CISE, Judge.

Defendant, Robert Wieghard, appeals the judgment of conviction based on a jury verdict of guilty of first degree murder and aggravated robbery. We affirm.

Shortly after midnight on June 23, 1982, Christine Sagolla, a waitress at Bennigan's restaurant in Boulder, was preparing to check out her receipts for the evening prior to finishing her shift. She entered the ladies' restroom and was followed there by a man who attempted to take her money and receipts. A struggle ensued, and the man pulled a handgun, rifled her purse, and forced her cooperation in revealing that more money was kept in the restaurant office and in gaining entry thereto.

In the office, headwaiter Henry Callahan and waitress Kathy Kiedinger were counting Kiedinger's receipts for the night. At the gunman's order, Sagolla appeared at the office window and knocked, whereupon Callahan opened the door, and the gunman pushed Sagolla in. The gunman demanded money, and Callahan gave him the money in the cash register. The gunman demanded more, and, when Callahan replied there was no more, the gunman shot him in the head at close range and left. Callahan died a short time later from the bullet wound.

On July 26 an anonymous caller informed the Boulder police department that Wieghard was responsible for the robbery and homicide at Bennigan's. On August 3, a line-up was conducted and Sagolla identified Wieghard as the gunman. The jury convicted Wieghard of first degree murder and aggravated robbery.

I.

On appeal, Wieghard first contends the trial court erred in admitting the testimony of Ron White, an inmate at the Boulder County jail. White testified at trial that, during the fall of 1982, he gained Wieghard's confidence while they were both housed at the Boulder County jail, and that Wieghard had described the crime to White, discussed the line-up procedure where Wieghard realized Sagolla had identified him, and asked White to kill Sagolla for him for $3,500 plus expenses in order to destroy the prosecution's case against him. Wieghard claims White's status was equivalent to that of a police informant and argues that, therefore, his Sixth Amendment guarantee of effective assistance of counsel during critical stages of the criminal proceedings was violated. We disagree.

Wieghard bases his argument on the rulings in Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), and United States v. Henry, 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980), which further refined the Massiah holding that, under certain circumstances, a defendant's own incriminating statements obtained by a secret government agent may not be used against him at trial. The Supreme Court in Henry noted three factors as important in determining whether the government deliberately elicited incriminating statements within the meaning of Massiah: 1) that the informant was acting as a paid informant for the government; 2) that the informant was ostensibly no more than a fellow inmate of the defendant; and 3) that the defendant was in custody and under indictment. The second and third factors were met in the present case. The only question that remains is whether White was acting under instructions as a paid informant. We conclude he was not.

It was undisputed that, during an earlier period, White had been a paid informant for the Denver police, but that relationship ended in May 1982. Also, he had given information to Boulder County jail officials, but that pertained to another case. White had no relationship with the Boulder police department or with the Boulder district attorney's office until he met with a police detective on November 1, 1982. Based on that showing, the trial court barred any information obtained by White after that meeting but allowed him to testify as to statements made by defendant to White prior thereto.

White testified he decided on his own to try to gather information from Wieghard. Under these circumstances, no evidence was presented that police "deliberately elicited" information from defendant prior to November 1. Therefore, Wieghard's Sixth Amendment guarantee was not violated, and the trial court did not err in admitting the testimony of White.

II.

Wieghard next contends the trial court abused its discretion in allowing expanded media coverage of the trial. We do not agree.

In 1983, our supreme court enacted Colorado Code of Judicial Conduct Temporary Canon 3(A)(8), which outlined guidelines for expanded media coverage of court proceedings. Prior to trial, the local newspaper and television station requested expanded media coverage under this rule. At a pretrial hearing, the trial court held that the presumption was in favor of open coverage and that a party opposing such coverage would have the burden of proving adverse effects therefrom. Defense counsel stated he could not spend his time developing an evidentiary record on the matter. The court then granted the request and outlined the...