Opinion
Rehearing Denied Oct. 30, 1975.
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[Copyrighted Material Omitted]
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John D. MacFarlane, Atty. Gen., Edward G. Donovan, Sol. Gen., Brooke Wunnicke, Chief Appellate Deputy, Dist. Atty., Denver, for plaintiff-appellee.
Truman E. Coles, Denver, for defendant-appellant.
PIERCE, Judge.
Defendant Elliott Pew appeals from a conviction of forgery in the second degree in violation of 1971 Perm.Supp., C.R.S.1963, 40--5--103 (now s 18--5--103, C.R.S.1973). We affirm.
The material facts concerning the commission of the crime in this case follow. A man attempted to cash a payroll check payable to one Albert Charles Leslie at a Denver department store. He presented the check along with what purported to be a driver's license issued to Mr. Leslie by the Republic of the Phillipines, to a credit office clerk, Nadine Nichols. A photograph was attached to the license. Because of the large sum of money involved, Nichols referred the matter to her superior Mary Nielson, who called the party upon whose account the check was drawn. She was informed that the check had been stolen in a burglary and that no Albert Charles Leslie was on the company payroll. Nielson then summoned a security officer to detain the man, but he departed before the security officer arrived, leaving behind both the check and the proffered identification. Later investigation by the police resulted in the arrest of Pew in connection with the attempt to cash the check.
I.
The defendant first asserts as error the trial court's refusal to grant a defense motion for a change of judge. In support of this motion, the defense submitted two affidavits asserting that the trial judge was racially prejudiced.
We agree with the trial court that the affidavits submitted are insufficient as a matter of law. After reviewing these affidavits, we find them to be of a conclusory nature and to contain unsubstantiated, broad assertions of past prejudice allegedly displayed by the trial judge. To be sufficient in law, an affidavit must set forth facts which support the assertion of prejudice and bias to the extent that it may be reasonably and substantially concluded that defendant would be denied a fair and impartial trial by that judge. Walker v. People, 126 Colo. 135, 248 P.2d 287. See s 16--6--201, C.R.S.1973. These affidavits fail to meet these criteria.
II.
Pew next contends that the trial court erred in refusing to strike Nichols' testimony because she did not make a courtroom identification of him and because the procedures employed in conducting the earlier photographic identification were unreasonably suggestive. He further complains that he was denied fundamental fairness since his lawyer was not present during the photographic identification proceedings.
Nichols' testimony concerned only an earlier identification procedure in which she identified a photograph of the defendant as the man who had attempted to cash the forged payroll check. She testified that a Detective Iantorno came to the store 11 days after the event, and showed her 6 photographs in succession, and that she immediately identified a photograph of the defendant as depicting the perpetrator of the offense. At no time, however, did the prosecutor ask Nichols to attempt a courtroom identification.
We reject the claim that Nichols' testimony should have been stricken. If the witness is available for cross-examination at trial, the testimony as to a prior identification is admissible as independent evidence of identity, and not only to corroborate a courtroom identification. This is true even where there is no in-court identification by such witness. See People v. Gould, 54 Cal.2d 621, 7 Cal.Rptr. 273, 354 P.2d 865.
A further factor here is that at an in camera hearing prior to trial, testimony was presented that substantiated the trustworthiness of the earlier identification by Nichols and fully supported the trial court's conclusion that the photographic identification was free from impermissible suggestion. See Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247.
There is no merit in the claim that counsel needed to be present during the identification proceedings. In Colorado, no right to counsel at photographic identification proceedings attaches during the investigatory stage of a criminal case. Brown v. People, 177 Colo. 397, 494 P.2d 587; People v. Renfro, 181 Colo. 159, 508 P.2d 396.
III.
The defendant's third allegation of error relates to the testimony of Detective Iantorno. He argues that Iantorno's testimony was only admissible to corroborate the expected in-court identification by Nichols, that Iantorno was permitted to identify the defendant in court, and that he gave impermissible opinion testimony as to he identity of the person depicted on the driver's license and in the photograph selected by Nichols. These arguments are irrelevant.
Since Nichols' identification testimony was properly admitted, the testimony of Iantorno was therefore admissible both as independent and as corroborative evidence of the circumstances surrounding that identification. With regard to the asserted error in permitting opinion testimony by Iantorno, we note that counsel for defendant failed to make a contemporaneous objection to the reception of such evidence. For his reason we need not consider this matter on appeal. Van Hise v. Trino, 143 Colo. 179, 352 P.2d 284.
IV.
Defendant also argues that the trial court erred in refusing to grant a defense motion to strike a courtroom identification made by Nielson. The essence of this argument is that, since she had been shown photographs in connection with the investigation and had seen the defendant at a preliminary hearing, and since there had been no prior in camera hearing to determine whether such contacts had tainted her courtroom identification, she should not have been permitted to make an in-court identification of the defendant. We reject this argument.
From the record, it is apparent that Nielson's testimony was not tainted because she had been shown the photographs during the investigation. She was unable to identify any of the photographs as the man who had sought to cash the check. Additionally, the circumstances of the inadvertent confrontation at the preliminary hearing militate against the possibility that the later courtroom identification was tainted. Other than the unproductive photographic showing, Nielson had had no other contact with the authorities prior to being subpoenaed as a witness for a preliminary hearing. She testified that she had no idea who Elliott Pew was at that time, and that when he entered the courtroom for the preliminary hearing she immediately recognized him from among a group of other persons as having been the man she had seen committing the alleged offense.
From the evidence concerning the physical setting in which the perpetrator of the offense had been viewed and the extended opportunity Nielson had had to observe that person, it is apparent that her courtroom identification had an independent origin, and was not the result of having been shown photographs or from inadvertently seeing the defendant at the preliminary hearing. Glass v. People, 177 Colo. 267, 493 P.2d 1347; See United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149. The existence of error, if any, in the failure to hold an in camera hearing prior to the testimony is harmless where the courtroom identification is based on independent observation of the defendant. Espinoza v. People, 178 Colo. 391, 497 P.2d 994.
V.
Defendant further asserts that the trial court abused its discretion in permitting Robert Atkinson to testify. He first complains that it was error to allow the late endorsement of this witness. The allowance of late endorsement of witnesses lies within the discretionary power of the court, to be overturned only where there had been a clear abuse of that discretion. People v. Buckner, 180 Colo. 65, 504 P.2d 669. Our examination of the record reveals no abuse of discretion. See Ziatz v. People, 171 Colo. 58, 465 P.2d 406.
Secondly, Pew points to the fact that Atkinson, an employee of the Colorado State Penitentiary, was allowed to testify that he was familiar with the defendant from his employment. Under court instruction, he did not, however, reveal his place of employment. Pew argues that the defense was thus denied an opportunity for effective cross-examination, for fear of revealing the defendant's prior record. The law on this point is to the contrary. See McLean v. People, 172 Colo. 338, 473 P.2d 715. We note that there existed a number of possible methods, which we need not detail here, by which the defendant might have impeached Atkinson's testimony without revealing Pew's past record. We cannot say that the trial court abused its discretion in permitting Atkinson to testify.
Defendant also challenges the substance of Atkinson's testimony in connection with a photograph brought by the witness to trial. The photograph was one of Pew taken at the penitentiary some five years previously. This picture was an obvious duplicate of the photograph that was attached to the driver's license purportedly issued to Charles Albert Leslie. Atkinson was permitted to testify that the picture was an accurate depiction of Pew as he appeared in 1967. Further, Atkinson testified that it appeared to him that the picture attached to the license and the photograph in his possession were duplicates.
The defendant challenges this testimony on the grounds that this constituted impermissible opinion testimony by one not qualified as an expert in photography. This assertion is without merit. The qualifications of a witness to testify competently on a matter of opinion is one of judicial discretion. Mack v. Board of County Commissioners, 152 Colo. 300, 381 P.2d 987. Defendant had shown no abuse of discretion in this regard.
Further, if there were error in the introduction of Atkinson's testimony that the two photographs were identical, it was not prejudicial to the defendant. Both photographs were made available to the jury during their deliberations. Where, as here, the matter as to which a witness states an opinion is beyond question and susceptible of later confirmation by the members of the jury, who are as competent as the witness to evaluate the evidence, the admission of such testimony, even if found to be error, is harmless. Rhodes v. People, 152 Colo. 210, 381 P.2d 30. VI.
Defendant's final contention is that the trial court erred in refusing to grant a defense motion for a directed verdict of acquittal. The defendant argues that the prosecution failed to prove beyond a reasonable doubt that Pew was the individual who sought to cash the forged payroll check, and that even if the identification had been established, the conduct in question did not constitute a crime.
The identification of the defendant was shown by competent evidence of both a direct and circumstantial nature. The credibility of witnesses, their means and opportunities for observation, and the weight to be accorded identifications made by them are questions for the consideration of the jury. Vigil v. People, 134 Colo. 126, 300 P.2d 545. The trial court did not err, therefore, in failing to direct a verdict of acquittal on the issue of identification.
The refusal to grant the motion for a directed verdict of acquittal on the grounds that no crime had been committed was also not error. Although the defendant fails to elaborate on this contention beyond merely stating it, we hold that the conduct in question does constitute second-degree forgery. That the party upon whose account the forged check was drawn did not suffer any loss is irrelevant; a loss would have been sustained by some person had the check been accepted. Andrews v. People, 161 Colo. 516, 423 P.2d 322. It is not necessary in order to uphold a conviction for this offense to prove that the defendant actually endorsed the check in question. See Giron v. People, 152 Colo. 143, 380 P.2d 905. It is enough if it can be shown that the defendant falsely made, completed, altered or uttered a written instrument of the requisite character with the intent to defraud. See s 18--5--103(1), C.R.S.1973.
Here the evidence is sufficient to warrant a jury in concluding that the defendant, with intent to defraud, completed or altered a stolen payroll check. Under the circumstances, the refusal of the trial court to direct a verdict of acquittal was proper.
Judgment affirmed.
SILVERSTEIN, C.J., and STERNBERG, J., concur.