Opinion
No. 25492
Decided July 30, 1973.
Defendants were convicted of aggravated robbery and conspiracy to commit robbery and appealed.
Affirmed
1. CRIMINAL LAW — Sealed Verdict — Term — Death or Life Imprisonment — Statute. Since the term "death or life imprisonment" — within statute permitting use of sealed verdicts in felony case except where punishment may be death or life imprisonment — does not embrace offenses which have a sentence of less than life imprisonment as a minimum and a maximum of either life imprisonment or death, it was not error, therefore, to use the sealed verdict.
2. CRIMINAL EVIDENCE — Newly Discovered — Negative — Knowledge of Defendants — All Along — Persons — Other State — Testify. Where allegedly "newly discovered evidence" — following denial of motion for a new trial — was in form of affidavits obtained from others who attended party in another state, to the effect that defendants were there on night of alleged robbery, held, these affidavits, as such, did not entitle defendants to new trial, as, under defendants' theory of the case, they knew all along that these persons could so testify.
3. CRIMINAL LAW — Counsel — Incompetent — Failure to Call Witnesses — Unsupported by the Record. Contention of defendants — that they were incompetently represented by counsel due to fact that their attorney at trial failed to call witnesses who allegedly attended party with defendants in another state on night of robbery — is not supported by the record.
Appeal from the District Court of the City and County of Denver, Honorable Robert T. Kingsley, Judge.
Duke W. Dunbar, Attorney General, John P. Moore, Deputy, David A. Sorenson, Assistant, Sara Duncan, Assistant, for plaintiff-appellee.
H. D. Reed, for defendant-appellants.
The defendants were convicted of aggravated robbery and conspiracy to commit robbery. They ask us to reverse because (1) a sealed verdict was improperly used; (2) a new trial should have been granted on the ground of newly discovered evidence; and (3) counsel was incompetent. We affirm.
The victim identified the defendants as the robbers. A woman testified at both trials that on the night of the robbery she and both defendants were in Minneapolis, Minnesota, and that she and one of the defendants attended a party that night, while the other defendant baby-sat with her child. She further testified that pictures, which were introduced in evidence at both trials, were taken at this party. These pictures showed the defendant whom she testified accompanied her to the party. There was no further alibi testimony.
I.
[1] Counsel for the People and for the defendants stipulated at the second trial that a sealed verdict might be returned. The statute provides:
"That in every case of felony, except where the punishment may be death or life imprisonment, and in every case of misdemeanor, the court, upon stipulation consenting thereto, signed by the district attorney and by the defendant or his attorney, may direct the jury to the effect that should they agree upon a verdict during the recess or adjournment of court for the day, to seal their verdict, to be retained by their foreman and delivered by the jury to the court at the opening of court, and that thereupon they may separate, to meet in the jury box at the opening of court; and such verdict may be received by the court as the lawful verdict of the jury." C.R.S. 1963 39-7-20.
See Crim. P. 31(a)(2) to the same effect.
After trial the statute was amended to provide that a sealed verdict may be received as provided by rule of the Supreme Court of Colorado. Colo. Sess. Laws 1972, 39-10-108, p. 238. Crim. P. 31 has not been amended.
At the time involved the penalty for aggravated robbery was not less than four years, or for life (1967 Perm. Supp., C.R.S. 1963, 40-5-1) and for the conspiracy the penalty was not less than one year, nor more than ten years (C.R.S. 1963, 40-7-35).
We held in Jaramillo v. District Court, 173 Colo. 459, 480 P.2d 841 (1971), the term "death or life imprisonment" does not embrace offenses which have a sentence of less than life imprisonment as a minimum and a maximum of either life imprisonment or death. It was not error, therefore, to use the sealed verdict.
II.
[2] The "newly discovered evidence" was in the form of affidavits obtained from others at the party in Minneapolis, to the effect that the defendants were there on the night of the alleged robbery. These affidavits are not newly discovered evidence as, under defendants' theory of the case, they knew all along that these persons could so testify. Pieramico v. People, 173 Colo. 276, 478 P.2d 304 (1970).
III.
[3] The remaining contention of the defendants is that they were incompetently represented by counsel as shown by the fact that their attorney at trial (not counsel here) failed to call as witnesses the other persons at the party in Minneapolis. We have been unable to find anything in the record disclosing why the trial counsel might have concluded not to attempt to use these witnesses, or if counsel found it impossible to produce the witnesses, or whether using them never occurred to counsel. Certainly the attorney had to know about the matter because of the testimony of the woman friend and because of the pictures.
Such being the state of the record and the matter having been raised here for the first time, we elect not to consider it in this appeal.
Judgment affirmed.
MR. JUSTICE ERICKSON does not participate.