Velarde v. People
| Decision Date | 24 July 1972 |
| Docket Number | No. 24605,24605 |
| Citation | 500 P.2d 125,179 Colo. 207 |
| Parties | Richard and Lee VELARDE, Plaintiffs in Error, v. The PEOPLE of the State of Colorado, Defendants in Error. |
| Court | Colorado Supreme Court |
H. D. Reed, Denver, for plaintiffs in error.
Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., Aurel M. Kelly, Asst. Atty. Gen., Denver, for defendants in error.
The robbery of the Silver Fox Restaurant and Lounge resulted in the filing of charges of aggravated robbery, 1967 Perm.Supp., C.R.S.1963, 40--5--1, and conspiracy to commit aggravated robbery, C.R.S.1963, 40--7--35, against the defendants Richard Velarde and his brother, Lee Velarde. The jury found the defendants to be guilty as charged. On writ of error, the defendant Richard Velarde contends that his motion for a judgment of acquittal should have been granted because the evidence implicating him in the robbery was insufficient to support a conviction. The record does not contain evidence which will support the conviction of Richard Velarde. We, therefore, reverse and direct that the trial court grant his motion for a judgment of acquittal. Lee Velarde, however, stands in a different position, and we affirm his conviction and the judgment and sentence imposed against him.
The criminal episode which gave rise to the charges against the Velarde brothers resulted from a robbery on Valentine's Day 1969. Three armed robbers entered the Silver Fox Restaurant and Lounge disguised in masks, bizarre coats and hats, and armed with pistols. The fruits of the robbery consisted of $2400 currency and three rolls of coins. The employees and customers of the restaurant and lounge were herded into the restrooms by the robbers, so that an escape could be effected. After the robbers left the building, one of the employees managed to get free and saw the three robbers enter a white stationwagon. The employee was able to identify several digits on the license plate before the white stationwagon was driven from the area at a high rate of speed. The police were alerted, and an officer saw a stationwagon resembling the getaway car stop in front of a house not far from the scene of the crime. Immediately thereafter, the officer saw three individuals jump out of the stationwagon and run into the house. The officer radioed for help and attempted to gain entrance, but was initially thwarted by the acts of two women who were standing at the front door. When the search of the house was finally made, Lee Velarde was found hiding in the attic with some of the masks and other items used to perfect the robbers' disguise. Some time later, Richard Velarde, who was linked to the crime by the sworn statement of Mary Garcia, was arrested.
At the trial, Mary Garcia's statement was never offered into evidence, and the witness refused to identify the statement as the one which she made to the police. As a result, the only evidence which tended to connect Richard Velarde with the crime showed that he had a physical make-up that fit the general physical description of one of the robbers. This...
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...partic-ularly where, as here, when confronted with Mr. Butler, neither boy could identify either him or his voice. See Velarde v. People, 500 P.2d 125, 126 (Colo. 1972) (evidenced that defendant had physical makeup similar to witness' general description of perpetrator, without more, was in......
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