Thompson v. People, 18408
| Decision Date | 02 March 1959 |
| Docket Number | No. 18408,18408 |
| Parties | James P. THOMPSON and Eugene Haas, Plaintiffs in Error, v. PEOPLE of the State of Colorado, Defendant in Error. |
| Court | Colorado Supreme Court |
Francis P. O'Neill, Walter L. Gerash, Dorothy E. Binder, Denver, for plaintiffs in error.
Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., Peter L. Dye, Asst. Atty. Gen., for defendant in error.
Elwood Eugene Haas, Eugene Harvard Roadhs and James P. Thompson were charged with, tried for, and convicted of, robbery and conspiracy to commit robbery. Plaintiffs in error, Haas and Thompson, filed their joint amended motion for a new trial. Following its denial, the trial court sentenced Haas and Thompson respectively to terms of seventeen to twenty years and fourteen to seventeen years in the penitentiary. It is these judgments and sentences which we are asked to reverse by this writ of error.
As grounds for reversal Haas and Thompson assert (1) that they were deprived of a fair trial in contravention of Article II, Section 16 and 25, of the Colorado Constitution, and Section 1 of the 14th Amendment of the Federal Constitution, because of a non-consensual representation by counsel who failed to prepare adequately for, and present, a defense against the charges laid; (2) that prejudice resulted to them when the trial court refused to declare a mistrial after a witness for the People testified to a statement said to have been made by Roadhs regarding his 'release'; (3) that their defense was damaged by the refusal of the trial court to permit their counsel to make an opening statement; and (4) that the trial court erroneously instructed the jury concerning an accessory when the record was destitute of evidence warranting its submission.
In relation to the first ground of error, the record reveals that Haas and Thompson had employed John J. Gibbons to represent them in their defenses to the accusations made, and in the course of this employment had discussed with him their pleas to the charges against them. Mr. Gibbons had Bruce Ownbey, an attorney who theretofore had associated with him in a number of cases, request a continuance, and further, had him confer with Haas and his 'girl friend' preparatory to trial. Together these attorneys discussed the material which their investigations had uncovered, and together they had determined upon the course of action to be pursued in presenting the defense. When the case came on for trial, Mr. Gibbons was in the midst of litigation elsewhere, and Mr. Ownbey undertook the defense. No objection was ever expressly lodged against Mr. Ownbey's activity in the case, either to the court or to the attorneys, until after the return of an adverse verdict.
In general this is the testimony given at a hearing held after the trial of the offenses charged against the defendants. Additionally, the trial court considered what it had observed and heard during the trial of the offenses in order to properly pass upon the question presented.
The trial court recalled that none of the defendants was called as a witness at the trial; that Mr. Ownbey alone represented the defendants during the three days consumed in trying the case, but that Mr. Gibbons consulted with Mr. Ownbey, the defendants and their relatives at different times as the trial progressed; that the defendants in no way indicated to the court that they expected Mr. Gibbons personally to present their defense or that they objected to Mr. Ownbey acting alone for them.
At the conclusion of the hearing the trial court found 'that counsel very adequately and ably represented the defendants at this trial.' In denying the motion for new trial, grounded in part upon this point, the trial judge said, 'These men have had very adequate representation and they have been deprived of no rights under either the State of Colorado Constitution or the Constitution of the United States * * *.'
We are in accord with the ruling of the trial court; a reading of the record in this case is persuasive that the defendants were ably represented. In fact, the evidence in support of the motion for new trial was directed in great measure toward the proposition that Mr. Ownbey had been foisted upon the defendants as their trial attorney, and relatively little evidence adduced to support the allegation of inadequate preparation for, and presentation of, the defense.
There is nothing in the record which moves us to hold that the trial court erred in determining that the defendants were properly represented; indeed, in failing to apprise the court of the contract with Mr. Gibbons, and of their objections to Mr. Ownbey undertaking the defense, under the circumstances here present, they are in no position to complain. These circumstances spell out acquiescence.
Employment of an association to conduct the defense of a criminal charge, where the attorney originally hired is engaged in the midst of another trial making his discharge of duty impossible, is not an impropriety, and the client will not be heard to complain if he stands by, permits the case to be tried, and objects for the first time after receiving an adverse decision. Fenno v. English, 22 Ark. 170. Roberts v. Denver, etc. R. Co., 8 Colo.App. 504, 46 P. 880; Allen v. Parrish, 65 Kan. 496, 70 P. 351; Jones v. Jones, 72 Wash. 517, 130 P. 1125 suggest the principle stated.
As a reviewing court it is our function to inspect the record for the purpose of ascertaining whether the findings of the trial court have support in the evidence and whether proper application of the law has been made to the findings. It is our duty to sustain such findings where the record discloses substantial evidence sustaining them. Viewing the evidence and findings in such favorable light, we hold the first point urged as ground for reversal not well taken.
In order to understand the second point of alleged error, we deem it essential to quote pertinent portions from the record as they unfolded while Officer Scheer was testifying:
'Mr. Ownbey: I object, your honor.
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