Tanksley v. People, 23075

• Decision Date: 02 February 1970
• Docket Number: No. 23075,23075
• Citation: 171 Colo. 77,464 P.2d 862
• Parties: Frank TANKSLEY, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.
• Court: Colorado Supreme Court

Page 862

464 P.2d 862

171 Colo. 77

Frank TANKSLEY, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.

No. 23075.

Supreme Court of Colorado, In Department.

Feb. 2, 1970.

Rehearing Denied Feb. 24, 1970.

Edward H. Sherman, Public Defender, Truman E. Coles, Deputy Public Defender, Denver, for plaintiff in error.

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

LEE, Justice.

Frank Tanksley was convicted of aggravated robbery in the Denver District Court and by this writ of error seeks reversal of the judgment of conviction.

The events out of which the charge against Tanksley arose occurred during the late evening hours of October 27, 1966. At that time Stephen Owen was the employee in charge of a Martin Oil service station located at 1245 West Alameda Avenue. At approximately 11 p.m., Owen was robbed by two unmasked men whom he later identified as Frank Tanksley and Richard Geiger. The men entered the station on the pretext of buying cigarettes, and, as Owen was getting them from a storeroom, Geiger pulled out a gun, pointed it at Owen and said 'This is a stickup.' Owen then handed over the currency and coins, including a coin changer, in an amount later determined to be approximately forty dollars. Owen was ordered into the storeroom and told to remain there for five minutes. He did so and thereafter notified the police of the robbery.

On October 30, 1966, Owen encountered Tanksley and Geiger under the following circumstances. Owen and one Steven Bert, who was Owen's immediate supervisor, had been working the evening shift together at the service station. They closed the station at midnight and went to the Pink Elephant Bar on East Colfax Avenue for refreshments. On entering the barroom Owen recognized Tanksley and Geiger seated at the bar, and he advised Bert that they were the two men who had robbed him. He then asked Bert to call the police. Tanksley and Geiger apparently recognized Owen, and Geiger beckoned Owen to join them. Tanksley, upon seeing Bert at the telephone, walked over to him and told Bert 'You don't want to call your girl friend now.' Bert hung up the phone and returned to the area where the men were seated.

All four drank, talked generally, and played a bowling machine, remaining in the tavern for about forty-five minutes. During this time Bert again attempted to call the police but was prevented from doing so by Tanksley. Owen twice asked the bartender to call the police, but he declined to do so.

Eventually, Owen and Bert left the tavern, followed by Tanksley and Geiger. Bert took off running, in an attempt to locate a police car. Apparently confused as to his direction, he ran around the block and back into the area where Tanksley, Geiger and Owen were standing. Then all four got into Owen's car and Owen was ordered at gunpoint by Geiger to drive ground town. Owen identified the gun as the same gun used in the robbery.

The continuity of events is not clear except that Tanksley repeatedly encouraged Geiger to shoot the two men. Geiger responded he would not do so unless he had to. At one point Bert attempted to escape from the car but was grabbed by Tanksley who again urged Geiger to shoot Bert. Bert described the events as follows:

'I turned my head and I saw the barrel of the gun and Steve Owen said 'Don't shoot us. Don't shoot. We don't want to get hurt. We don't want to cause any trouble.' At that time or at that stage, Steve, Geiger and Tanksley decided Steve should drive again and we switched again. After we switched again, Steve got in the car and started driving and said, 'I know where there is some money. I will take you to it. Just leave us alone. We don't want any trouble."

Owen then drove to the Martin service station where he and Geiger went inside. Owen opened the safe and took the day's receipts of.$99 from the safe and gave it to Geiger who, upon returning to the car, shared the money with Tanksley. Owen was ordered to drive back to the Pink Elephant Bar where Tanksley and Geiger presumably were to separate. However, they changed their minds and refused to leave.

Owen then commenced speeding and running red lights to attract the attention of the police. He succeeded in this purpose. A patrol car following with red light flashing signaled Owen to pull over to the curb, which he did. Geiger and Tanksley immediately got out of the car and left the scene. The patrolman, who was alone, arrived to interrogate Owen and Bert, placing them in his car where they told him of the robbery of October 27 and the events of the evening. An emergency radio call for assistance interrupted their conversation and the officer told Owen and Bert to wait in the car and he would return, which he did. In the meantime, Tanksley and Geiger had taken refuge in the restaurant area of the Olin Hotel. Shortly thereafter they were apprehended by another officer who had responded to a call for assistance. At the time of their arrest, Geiger had the gun aimed at the officer, and Tanksley, who was next to Geiger, shouted 'Shoot him. Shoot him.' The officer drew his service revolver and ordered Geiger and Tanksley to surrender, which they did.

Both Tanksley and Geiger were charged with aggravated robbery and conspiracy to commit aggravated robbery. Geiger entered a plea of guilty to the robbery count and Tanksley pleaded not guilty and was tried alone. At the conclusion of the evidence, the conspiracy count was dismissed on motion of the district attorney. The jury returned its verdict of guilty to the robbery count.

Tanksley contends that the trial court committed prejudicial error in several respects and that the judgment of conviction must therefore be reversed. We do not agree and therefore affirm the judgment.

I.

Tanksley's first alleged error relates to the admission into evidence of the events of the evening of October 30, which have been set forth herein in some detail, insofar as such events showed criminal conduct on his part other than that charged in the information. Without attempting to analyze specifically what additional charges might have resulted from the activities of Tanksley and Geiger on the evening of October 30, it is apparent that Tanksley and Geiger were involved in a kidnapping and assault with a deadly weapon on Owen and Bert; an assault with a deadly weapon upon the arresting police officer; larceny of the Martin Oil Company moneys; and perhaps lesser included offenses.

Tanksley's claim is that such evidence of other offenses was inadmissible and prejudicial to him. His counsel did not make objection to this evidence when it was first presented by witness Owen. The court, on its own motion at the conclusion of the direct examination of Owen, then instructed the jury of the limited purpose for which the evidence was received, advising that it was admitted '* * * as bearing upon the question of whether or not the defendant had a plan, scheme or design to produce the results of which the act charged in the information is a part. The defendant cannot be tried or convicted of any other offense not charged in the information. * * *' Nor did Tanksley's counsel then object, but proceeded to cross-examine Owen.

Witness Bert's testimony to the same events was similarly admitted into evidence without objection. Likewise, the arresting officer was permitted to testify without objection as to the events at the Olin Hotel relating to Tanksley's arrest. It was not until the conclusion of the People's case...