Vigil v. People, 85SC118

• Decision Date: 20 January 1987
• Docket Number: No. 85SC118,85SC118
• Citation: 731 P.2d 713
• Parties: George I. VIGIL, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.
• Court: Colorado Supreme Court

Page 713

731 P.2d 713

George I. VIGIL, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.

No. 85SC118.

Supreme Court of Colorado,

En Banc.

Jan. 20, 1987.

Rehearing Denied Feb. 17, 1987.

David F. Vela, State Public Defender, Duane M. Kline III and Frances Smylie Brown, Deputy State Public Defenders, Denver, for petitioner.

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Brooke Wunnicke, Chief Appellate Deputy Dist. Atty., Denver, for respondent.

VOLLACK, Justice.

We granted certiorari review of the court of appeals' unpublished decision, Vigil v. People, No. 82CA1204 (January 24, 1985), to determine whether the court of appeals erred in holding that the evidence that the defendant knowingly received stolen property was so overwhelming that the admission of evidence of a conspiracy, which was stricken by the trial court because the People failed to establish that the defendant was a participant, was cured by a cautionary instruction to the jury to disregard the inadmissible evidence. We affirm.

I.

The defendant, George I. Vigil, was convicted by a jury of conspiracy for the sale of narcotic drugs, sale of narcotic drugs and theft by receiving. During the trial, the jury heard testimony from a paid informant and several undercover police officers about drug transactions that allegedly occurred on January 29, February 18, March 3, and March 5, 1981. The March 3 transaction formed the basis for the theft by receiving charge. The court suppressed evidence of drugs recovered during the March 5 transaction because of a break in the chain of custody. At the conclusion of the trial, the court instructed the jury that it should disregard the evidence relating to the drug transactions which allegedly occurred on January 29 and February 18. The instruction read:

The Court has now stricken from the record all evidence presented regarding transactions and events that occurred on January 29, 1981 and February 18, 1981. You are not to consider that evidence for any purpose whatsoever. Such evidence is to be treated as if you had never heard it.

The court struck the evidence from the record and gave the instruction stated above because the People failed to adequately connect the defendant to the January and February transactions.

The evidence pertaining to the theft by receiving conviction included testimony of Mario Castro, a paid informer, who testified that during the afternoon of March 3, he drove to the home of John Cisneros, an alleged co-conspirator, with a new, boxed television set that had been provided him by the police department. Castro and Cisneros drove to Vigil's grocery store, and Castro waited in the car while Cisneros entered the store. Two or three minutes later, he emerged from the store and told Castro he could only acquire one and a half balloons of heroin, rather than two balloons for the television. Castro agreed, and both men took the television into the store. When they handed the television to the defendant, Castro testified:

I told Mr. Vigil prior to Tom picking [sic] it up that he had to, you know, be careful with it because it was stolen. I didn't want him to keep it around the store. He [defendant] informed me it was already gone.

Subsequently, the defendant passed something to Cisneros. Cisneros immediately handed Castro a balloon, which was later determined to contain heroin. The defendant then asked Castro if he had more "goodies or stolen items." Castro testified that he told the defendant that he "had approximately three T.V.'s and another stereo." Castro also testified that the defendant told him that "he would get ahold of John to take care of all the details and set the thing up."

Officers Patrick Fitzgibbons and Joseph Garcia of the Denver Police Department corroborated the informant's account of the March 3 transaction. They purchased the new television for $280 and handed it to Castro, and, just prior to the transaction, Officer Garcia searched Castro's person and discovered no contraband. Both officers then followed Castro, and another man whom Castro picked up on the way (Cisneros), to Vigil's grocery store at 2801 Champa Street in Denver, Colorado. They witnessed Cisneros enter the store alone and then return to the car in which he and Castro had traveled. Castro and Cisneros then both entered the store; Castro carried the television. Approximately five to eight minutes later, both men exited the store and drove away in the car. The officers followed Castro and witnessed him drop off Cisneros and then drive to a parking lot some distance away from where he left Cisneros. Castro handed the officers the balloon of substance which later proved to be heroin.

The defendant presented an alibi defense. Three witnesses, Marie O'Donnell and her grandson, Anthony Roybal, testified that they went to Boulder with the defendant on March 3 to see Hanna Kroger, an "herb healer." Kroger testified that the defendant, a woman, and a young boy had come to see her in her home on a Tuesday afternoon. On cross-examination, Kroger admitted that she did not know the exact date or even the month of their visit, that earlier she had told an investigator that the three had arrived at her home in the morning, and that, in talking to the investigator, she had confused the Tuesday visit with another day when the defendant had accompanied a couple with an infant to her home. The court took judicial notice that March 3, 1981, was a Tuesday.

The jury deliberated two hours before returning guilty verdicts on the three counts.

The court of appeals reversed the convictions for sale and conspiracy to sell drugs, remanded for a new trial on these charges, and affirmed the conviction of theft by receiving. It held that the defendant had been prejudiced by references to drug transactions that were never tied to the defendant. However, it held that the evidence of theft by receiving was overwhelming, and it affirmed the jury verdict as to that charge. We affirm.

II.

The theft by receiving statute under which the defendant was charged states in pertinent part:

(1) Except as provided in subsection (6) of this section, a person commits theft by receiving when he receives, retains, loans money by pawn or pledge on, or disposes of anything of value of another, knowing or believing that said thing of value has been stolen, and when he intends to deprive the lawful owner permanently of the use or benefit of the thing of value.

....

(4) Where the value of the thing involved is two hundred dollars or more but less than ten thousand dollars, theft by receiving is a class 4 felony.

§ 18-4-410(1) and (4), 8 C.R.S. (1978). ¹

Each element of the defendant's theft by receiving conviction was supported by the record. Specifically, the record reflects that the defendant, George I. Vigil, in the State of Colorado, on March 3, 1981, at 2801 Champa, City and County of Denver, received a television set which had been purchased by the Denver Police Department for $280, full retail price being $299. When the defendant was told the television was stolen, he responded that it was already gone and that he was interested in other stolen items. Independent police corroboration supported the informant's view of this transaction. The jury was in the sole position to determine the credibility to be placed upon the testimony of the informant and the three alibi witnesses. People v. Franklin, 645 P.2d 1 (Colo.1982); People v. Noga, 196 Colo. 478, 586 P.2d 1002 (1978).

Rather than attack the evidence which pertained to the theft by receiving charge, the defendant contends that because evidence of drug transactions involving persons associated with him was elicited at trial, notwithstanding the court's subsequent instruction excluding any such evidence from the jury's consideration, it was impossible for the jury to render an unbiased verdict. We disagree.

Generally, an error in the admission of evidence may be cured by withdrawing the evidence from the jury's consideration and instructing the jury to disregard it. Brown v. United States, 380 F.2d 477 (10th Cir.1967), cert. denied, 390 U.S. 962, 88 S.Ct. 1062, 19 L.Ed.2d 1158 (1968); Maestas v. United States, 341 F.2d 493 (10th Cir.1965); Johnson v. People, 80 Pac. 133, 33 Colo. 224 (1905). However, in People v. Goldsberry, 181 Colo. 406, 410, 509 P.2d 801, 803 (1973), "where the evidence of guilt was not overwhelming," we held that a new trial was required when the admission of improper evidence was so prejudicial that "it [was] conceivable that but for its exposure, the jury [might] not have found the defendant guilty."

Here, the evidence of guilt was overwhelming. Moreover, the stricken evidence related to prior instances of drug transactions, not to prior instances of theft by receiving. Finally, the trial court's curative instruction was clear, unambiguously mandating that the jury not consider for any purpose the testimony pertaining to the transactions and events that occurred on January 29 and February 18, 1981. Because of the overwhelming evidence against the defendant as to the crime of theft by receiving, we hold the trial court's curative instruction, which withdrew certain evidence from the jury's consideration and directed the jury in strong and definite language to disregard that evidence, was sufficient to insure that the jury render an unbiased verdict.

Judgment affirmed.

DUBOFSKY, J., does not participate.

LOHR, J., dissents.

QUINN, C.J., joins in the dissent.

LOHR, Justice, dissenting:

The majority concludes that the evidence pertaining to the theft by receiving charge was overwhelming, and therefore any error committed in the admission of evidence relating to other transactions allegedly involving the defendant was cured by the instruction given to the jury at the close of the evidence to disregard that evidence. I disagree with the analysis employed by the majority as well as the result...