Sergent v. People

Decision Date28 February 1972
Docket NumberNo. 23542,23542
PartiesThomas Julius SERGENT, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.
CourtColorado Supreme Court
John S. Carroll, Rebecca L. Bradley, Denver, for plaintiff in error

Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., James F. Pamp, Michael T. Haley, Asst. Attys. Gen., Denver, for defendant in error.

ERICKSON, Justice.

Thomas Julius Sergent was charged with the murder of Milton and Mildred Moeller in San Juan County, Colorado. Pursuant to his motion for change of venue and the agreement of his counsel, the defendant was tried for the murder of Milton Moeller in the district court of La Plata County, Colorado, after a second motion for change of venue was denied. The jury found the defendant to be guilty of first degree murder, and he was sentenced to life imprisonment.

The defendant was represented by experienced trial counsel who protected his rights at each stage of the proceedings. Our view of the record causes us to conclude that reversible error did not occur in the trial of the case, and we, therefore, affirm.

THE FACTUAL BACKGROUND

After the Moellers were reported missing and their G.M.C. camper was found abandoned with bloodstains and a bullet hole in it, foul play was suspected. Pictures which were obtained from the abandoned camper identified the Moellers' campsites as the Lime Creek Camp Ground and the South Mineral Creek Camp Ground. An investigator for the district attorney searched both campsites. The search resulted in the discovery of the remains of both Milton and Mildred Moeller and their dog, Dusty, in a privy in the Lime Creek Camp Grounds.

An autopsy disclosed that both of the Moellers had suffered gunshot wounds which were sufficient to cause their death. The dog had been clubbed to death. The bullet hole in the bloodstained camper of the Moellers yielded a .45 caliber slug that agents of the Federal Bureau of Investigation found to be identical to the bullets found in the bodies of the Moellers.

The investigator for the district attorney also recovered a 30--30 rifle barrel from the privy. The rifle barrel was later matched to a rifle stock that was found with some of the defendant's clothing and Based on this information, a complaint was issued by the district attorney for the Sixth Judicial District charging the defendant with the double murder. Charges of unlawful flight to avoid prosecution for murder and for violation of the Dyer Act were contemporaneously filed by the Federal Bureau of Investigation, and federal warrants issued for the arrest of the defendant. The Dyer Act charge arose out of the theft of a car in Ely, Nevada, which was found stripped in the vicinity of the South Mineral Creek Camp Ground. Sergent was identified as the person living in the car just prior to the time the Moellers' camper was abandoned in Del Norte.

a sleeping bag not far from the area where the Moellers were found. Numerous people saw Sergent in the Lime Creek Camp Ground area at a time which approximated the date of disappearance of the Moellers. Moreover, an employee at the bus station in Del Norte identified Sergent as the person who purchased a bus ticket for Omaha and obtained permission to leave the Moellers' camper in the lot adjacent to the bus station.

Sergent was not seen again until his arrest occurred near Oscoda, Michigan, where he had been hiding out in a cave ever since he learned he was being hunted by the police. At the time of his arrest, the defendant was in a car owned and driven by his sister. Sergent contacted his sister, who notified the police that her brother wanted her to pick him up. Sergent's sister cooperated with the police and met her brother and drove him to the scene of the arrest. The arrest occurred approximately eight miles from Oscoda, Michigan, on a public highway. When the defendant was arrested, the police officers conducted only a pat-down search because of the cold and inclement weather. At the time of the arrest, the defendant was asked if he had any guns, and he responded, 'Yes. They are in the trunk.' The officers then opened the trunk, removed the defendant's footlocker from the trunk, and took the defendant and his footlocker to the East Tawas State Police Post, some ten miles away. During the trip back to the police station, the defendant was advised of his rights, and at that time, he said that he desired to remain silent.

At the police station, the defendant was asked for the combination to the lock on his footlocker, and he gave the police the combination. He was then strip-searched. The strip-search resulted in the discovery of a small zip gun and cartridge which was hidden in the heel of the defendant's shoe. After the defendant's clothing and shoes were searched, he was allowed to dress and was readvised of his constitutional rights with an advisement form. The F.B.I. agent who searched the footlocker then informed the defendant that he had found a .45 caliber automatic pistol in the footlocker. The defendant replied that '(t)here is a .25 in the footlocker wrapped in a poncho.' After finding the other gun, the agent returned and asked if the defendant was aware of his rights. The defendant told the agent that he was aware of his rights. Upon further questioning, the defendant admitted ownership of the weapons and stated that he had bought them in Nevada.

On the evening of his arrest, the defendant was taken before a United States Commissioner for arraignment on the federal charges which were pending against him. The defendant was again advised of his rights and was told that the purpose of the hearing was to set bond and that no plea need be made. He was also told that he could make any statements that he thought the Commissioner should consider in setting bond and that he had a right to an attorney. Sergent advised the Commissioner that he did not desire counsel, but he did not make a statement.

At first, he requested a removal hearing, and then on December 13, 1966, he indicated that he had elected to return to Colorado and that he desired to waive extradition and the removal hearing. When the Commissioner presented the forms to the defendant, the defendant was again advised of his rights and signed a After the defendant was returned to Denver, he was questioned by Erwin R. DeLuche in the United States Marshal's office. DeLuche informed the defendant once again of his rights and told the defendant that he desired to discuss the defendant's possession of the Moeller camper and the statement he had given to the F.B.I. The defendant acknowledged that he was fully aware of his rights and then proceeded to tell DeLuche some of the facts which tied the defendant into a circumstantial web of complicity in the double murder.

form indicating that he had received the required warning. After the form was signed, the defendant told the Commissioner that he had camped in an area near Silverton, Colorado, and that he observed a [177 Colo. 360] camper-style vehicle in the area in a public or semi-public camping area. He told the Commissioner that he realized that his pistol had been used to kill these people, but that he didn't know how it was used. He also indicated that he didn't use the .45 caliber pistol, but that somehow or another he had lost possession of his .45 caliber Colt automatic for a short period of time. The Commissioner made no further inquiry. The record also discloses that Sergent, after being advised of his rights, signed another advisement form and told another F.B.I. agent that he would rather talk to them than remain in his cell.

I. PREJUDICIAL PUBLICITY AND CHANGE OF VENUE

The grisly nature of the crime charged generated interest in the news media, but did not result in an inordinate amount of publicity. As a result of the news coverage, the defendant has raised the issue of trial by newspaper as a basis for reversal, claiming that prejudicial publicity denied him a fair trial. Because of the alleged adverse publicity, the defendant also has contended that the trial judge erred in failing to grant a change of venue. Venue was laid in San Juan County and was changed to La Plata County at the request and pursuant to the motion and agreement of defense counsel. After venue was changed once, defense counsel filed a second request for a change of venue. The denial of the second request for a change of venue is the basis for the defendant's assertion of error.

The record reflects that the news media covered both the disappearance of the Moellers and the apprehension and trial of Sergent. Publicity was given to the case by radio, television, a detective magazine, and the newspapers. It is apparent that some of the news media articles that are complained of were prompted by the defendant granting interviews to reporters for The Denver Post. Other articles were based on news releases that were made by one of defense counsel. In addition, the district attorney made news releases that were contrary to good practice. The news releases which stemmed from the action and words of prosecution and defense counsel are not to be lightly condoned. See American Bar Association Standards of Criminal Justice Relating to Fair Trial and Free Press, §§ 1.1, 2.1(a), (c); American Bar Association Standards of Criminal Justice Relating to The Prosecution Function (§ 1.3) and The Defense Function (§ 1.3); Canon 7, DR 7--107, Code of Professional Responsibility, C.R.S.1963, Vol. 1, 1970 Revision, pp. 99--102 (1971 Supp.). See also 6 T. Borrillo, Colorado Practice, Criminal Practice and Procedure, § 811 (1971). The publicity was not so extensive, pervasive, and prejudicial, however, that the denial of a fair trial may be presumed, as in Walker v. People, 169 Colo. 467, 458 P.2d 238 (1969); Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966); Estes v. Texas, 381 U.S. 532, 85...

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    ... ... Any other rule would undermine 'the right of the people to be secure in their persons, houses, papers, and effects,' and would obliterate one of the most fundamental distinctions between our form of ... See Sergent v. People, 177 Colo. 354, 497 P.2d 983 (1972); State v. Gaines, 6 Ariz.App. 561, 435 P.2d 68 (1967); State v. Springer, 102 Ariz. 238, 428 P.2d 95 ... ...
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