Raullerson v. People, No. 21117

• Docket Nº: No. 21117
• Citation: 404 P.2d 149, 157 Colo. 462
• Case Date: July 06, 1965
• Court: Supreme Court of Colorado

Page 149

404 P.2d 149 157 Colo. 462 Nathaniel RAULLERSON, Plaintiff in Error,
v.
PEOPLE of the State of Colorado, Defendant in Error. No. 21117. Supreme Court of Colorado, En Banc. July 6, 1965.
Rehearing Denied July 26, 1965.

[157 Colo. 465]

Page 152

Akolt, Shepherd & Dick, William G. Kemp, Denver, for plaintiff in error.

Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., John P. Moore, Asst. Atty. Gen., Denver, for defendant in error.

SCHAUER, Justice.

By information filed June 1, 1962, Nathaniel Raullerson, hereinafter referred to as the defendant, was charged in separate counts with: (1) Assault with a deadly weapon; (2) kidnapping; (3) rape, and (4) assault to rape, all allegedly committed upon the person of the complaining witness. Through court-appointed counsel he entered pleas of not guilty, and not guilty by reason of insanity, to each charge, the latter pleas being subsequently withdrawn. Trial was had to a jury, commencing December 18, 1962, and continuing over a period of several days. The jury found defendant guilty [157 Colo. 466] of the first three counts and he was sentenced to the State Penitentiary for a term of not less than four years nor more than five years on the charge of assault with a deadly weapon; a term of not less than twenty-five years nor more than thirty years on the charge of kidnapping, and a term of not less than fifty years nor more than life on the charge of rape, the sentences to be served concurrently.

Defendant prosecutes this writ of error, setting out twenty-four arguments upon which his assignments of error are based. These arguments will be consolidated so far as possible for convenient consideration.

The facts, briefly stated, are that at approximately 1:30 A.M., on May 19, 1962, the complaining witness, a girl eleven years of age, hereinafter referred to as the victim, complaining witness, or the girl, together with several of her friends of about the same age, pursuant to a prearranged plan, left their homes and met on the grounds of a school in East Denver. They had plans to soap the windows and decorate with toilet paper the homes of acquaintances not in the group. They started through a residential area nearby, when a man driving a car stopped and asked them if they wanted a ride. The offer was refused and the man drove around the block, whereupon the group scattered. The man then left his car and caught the girl, telling her that he was a policeman. He had a gun in his hand, pushed her to the car and forced her into the back seat. He drove to a point in East Denver where he parked the car, climbed into the back seat, removed his own clothing, pulled off the victim's clothes, and allegedly raped her. She testified as to the details of the incident. He then drove to a spot near the girl's home and left her. The car was found the next day, parked in front of a house on York Street in Denver which was occupied by defendant and his mother.

The identity of the car driven by the man who had picked up the victim as the car owned by defendant was established by competent evidence. One of the boys in [157 Colo. 467] the group referred to testified that he was well acquainted with General Motors products, particularly with Chevrolets. He identified the car that had stopped, at the time the little girls were asked if they wanted a ride, as a white 1958 Impala Chevrolet, by the number and location of its headlights and taillights and his experience in identifying the year of particular cars. One of the girls identified the car in the same way, also mentioning certain chrome characteristics of this particular model. She and two others further identified it as being the same model of Chevrolet owned by the father of one of the girls. The complaining witness testified that it was a "58 or '59 Chevy.'

There is in evidence a portion of the permanent records of the Denver Motor Vehicle Department, showing that license

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number AT 7239, issued February 28, 1962, on a 1958 Chevrolet 4-door sports car to Nathaniel Raullerson of 2225 York Street, Denver. Defendant's car was so licensed, and on the morning following the attack, this car was found parked in front of the York Street address. The record shows that the car was repossessed from defendant under a chattel mortgage and was impounded in a police pound where it was later identified by the victim as the car in which she had been attached.

Defendant asserts that he was not sufficiently identified as being the man who had picked up the complaining witness. At the trial she pointed out to the jury the defendant sitting in the court room as the man responsible for the attack. At a police 'line-up,' she and another girl of her group identified the defendant by his voice as the man who had stopped on the street on the night in question and asked the girls if they wanted a ride. The girls, but eleven years of age, were extensively cross-examined, and their testimony was shaken very little. For example, one girl testified:

'Q You haven't seen him [the defendant] at all up until the time you took the stand, is that right?

'A I saw him at the lineup.'

[157 Colo. 468] The witness and the complaining witness had been sitting together at the time of the line-up. Five or six men, the majority of them colored, had been paraded before the girls, but five or six feet distant; had been numbered and required to speak distinctly and, among other things, to repeat the words, 'Do you girls want a ride?' At the same instant, the two girls identified the defendant and called out his number. After many questions, framed in various ways, in an attempt to discredit the testimony of the witness, she was asked if it were possible that she could be mistaken about the identification of the man who 'shouted' that night. She replied in the affirmative. The witness had repeatedly stated that the man who had accosted the group had spoken in an ordinary tone of voice, and had not 'shouted.' After being grilled for hours by aggressive counsel, this little girl made the above admission, and defendant now claims that she was discredited as a witness.

The question of the credibility of a witness was a matter for jury determination. Pertinent language and citations are found in the case of People v. Spinuzzi, 149 Colo. 391, 369 P.2d 427:

'* * * It is not essential that a witness be free from doubt as to the correctness of his opinion nor that he be able to identify the accused positively, 2 Wharton's, Criminal Evidence, (12th ed.) 380, § 533. The uncertainty of identification goes to its weight rather than to its admissibility. People of State of California v. [Charles] Cahan, 141 Cal.App.2d 891, 297 P.2d 715, certiorari denied 352 U.S. 918, 77 S.Ct. 214, 1 L.Ed.2d 124.'

Also in the case of McClenny v. People, 155 Colo. ----, 393 P.2d 736, it is stated:

'* * * This Court is not charged with the duty of weighing the evidence and determining the degree of credibility which should attach to persons testifying in a trial court. * * *'

Moreover, the victim's testimony stands uncontradicted.

Within a day or two after the alleged offense, [157 Colo. 469] these witnesses were interviewed by detectives or police officers, who made notes as the interviews progressed. Throughout the trial counsel for defendant invoked Rule 16(b), R.Crim.P., Colo., which reads as follows:

'After a witness called by the State has testified on direct examination, the court shall on motion of the defendant order the prosecuting attorney to produce any statement of the witness in the possession of the prosecuting attorney or under his control which relates to the subject matter to which the witness has testified. * * *'

In each instance the prosecuting attorney produced and handed to defendant's counsel the notes taken by the interviewing officers

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who had interviewed the various witnesses. These notes are in evidence. We have reviewed them and find no material variations between the notes taken by the officers and the testimony of these officers and the witnesses so interviewed, as given at the trial.

Because of the serious nature of this case, consideration in some detail is given the arguments upon which defendant relies for a reversal of the judgment. He first argues:

'The trial court erred in denying the court-appointed attorneys' Motion to Withdraw and in denying the Defendant's Motion for a continuance to a time when counsel of his own choosing could represent him.'

On November 13, 1962, defendant advised the court that he was dissatisfied with his court-appointed attorneys and that at his request his mother had employed one Irving Andrews (who was then present in Court) to represent him. His court-appointed attorneys then requested leave to withdraw from the case. The following colloquy is of record:

'THE COURT: Well, Mr. Andrews, if Mrs. Raullerson wants you in this case, you will have to take it subject to this Court's docket.

'MR. ANDREWS: I know. I said to you and I advised Mr. Raullerson and Mrs. Raullerson at the time she contacted[157 Colo. 470] me that it depended upon whether the case was set--whether it was set when I can do it.'

* * *

* * *

'THE COURT: All right, we'll try it if we have to bring in two judges, on Monday, December 17th. If you can be ready for trial on that date, Mr. Andrews, fine; if you can't be ready for trial on that date the court-appointed counsel will remain in this case.

'MR. ANDREWS: I think that is the only thing to do, your...