Summary
holding that "[t]he acts and declarations of co-conspirators, even those occurring prior to a defendant's involvement, may be admitted against the defendant"
Summary of this case from State v. RiveraOpinion
No. 77-343
Decided January 11, 1979. Rehearing denied February 8, 1979. Certiorari denied April 16, 1979.
Convicted of one count of conspiracy and one count of theft, defendants appealed.
Affirmed
1. CRIMINAL LAW — Co-conspirator's Statements — Admissible — Independent Evidence — Testimony of Co-conspirator — Furnished Necessary Evidence — Hearsay Statements — Properly Admitted. Hearsay statements by a co-conspirator cannot be admitted unless there is competent evidence, independent of the hearsay statements, establishing the conspiracy and the defendant's connection therewith; thus, where, in automobile theft prosecution, an admitted conspirator testified against the defendants and his testimony supplied the independent evidence necessary to establish the existence of a conspiracy and defendants' involvement in the conspiracy, the admission of hearsay statements of another co-conspirator was not error.
2. Witness — Accomplice — Uncorroborated Testimony — Granted Immunity — — Factors — Affect Weight — Credibility — Not Competency. Where one prosecution witness in automobile theft ring prosecution, was an accomplice of defendants, and offered uncorroborated testimony of the offense, and had been granted immunity from prosecution, those factors might affect his credibility and the weight given to his testimony, but they did not render that testimony incompetent.
3. Uncorroborated Testimony — Accomplice — Sufficient to Convict — Jurors Properly Instructed. A jury may convict upon the uncorroborated testimony of an accomplice if the jurors are instructed to view the testimony with great caution.
4. Co-conspirator's Statements — Prior — Defendants' Involvement — Near In Time — Directly Related — Admissible — Against Defendants. The acts and declarations of co-conspirators, even those occurring prior to a defendant's involvement, may be admitted against that defendant; thus, although certain co-conspirators' statements were made before defendants joined automobile theft conspiracy, those co-conspirators' statements, which were near in time to the involvement of the defendants and which were directly related in the same criminal acts with which defendants are charged, were properly admitted against defendants.
5. Venue — Theft — Any County — Defendant — Exercised Control — Immediate Transportation — Stolen Automobiles — To Denver — Venue Proper. An offender may be tried for theft in any county in which he has exercised control of the property; thus, the immediate transportation of stolen automobiles into Denver and the attempted delivery there to co-conspirators was sufficient to establish venue in that jurisdiction for subsequent theft prosecution.
6. Trial Court — No Power — Dismiss Indictment — Without Prosecution's Consent — Failure — Order Dismissal — Not Error. Although prior to trial, it became known that the alleged victim of one offense would be unable to testify, the trial court has no power to dismiss an indictment without the consent of the prosecution, and thus it did not err in not compelling the People to dismiss the indictment as to this offense.
Appeal from the District Court of the City and County of Denver, Honorable Clifton A. Flowers, Judge.
J. D. MacFarlane, Attorney General, David W. Robbins, Deputy Attorney General, Edward G. Donovan, Assistant Attorney General, David Schwartz, Assistant Attorney General, for plaintiff-appellee.
John A. Purvis, Acting State Public Defender, Alexander Garlin, Deputy State Public Defender, for defendants-appellants.
Defendants Beck and Severn, along with four other persons, were charged with felony theft and conspiracy arising from the theft of two automobiles. From a conviction of one count of conspiracy and one count of theft, defendants appeal. We affirm the convictions.
The two defendants in the instant case were tried separately from the other persons with whom they were charged with conspiring. An undercover agent of the Colorado Bureau of Investigation, Donald Shepherd, testified at defendants' trial that he contacted one of the other alleged conspirators, Jack Alonzi, to ascertain whether Alonzi had any stolen Lincoln-Continental Mark IV automobiles for sale. Alonzi then contacted another conspirator, Jerry McKim, who in turn contacted defendants Beck and Severn to arrange for them to supply the automobiles. McKim testified that he and defendants stole two cars and arranged to deliver them to Shepherd. When the stolen cars were delivered, McKim, Alonzi, and two other alleged conspirators were arrested. As the arrest was taking place, the stolen automobiles were driven away from the scene before Agent Shepherd was able to observe either of the drivers.
The only evidence linking the defendants with the crime was the uncorroborated testimony of McKim, who was granted immunity from prosecution in exchange for his testimony concerning his role in the conspiracy. Shepherd testified that prior to the arrest, he had never seen nor heard of the defendants but had only learned their names from McKim. No witness other than McKim supplied testimony linking defendants with the crime.
[1] Defendants challenged the admission of hearsay statements of Alonzi and other conspirators. An exception to the hearsay rule allows admission of declarations of co-conspirators. People v. Schlepp, 184 Colo. 28, 518 P.2d 824 (1974). Defendants, however, rely on People v. Braly, 187 Colo. 324, 532 P.2d 325 (1975), for the proposition that hearsay statements by a co-conspirator cannot be admitted unless there is "competent evidence, independent of the hearsay statements, establishing the conspiracy and the defendant's connection therewith." Here, McKim, an admitted conspirator, testified against the defendants and his testimony supplied the independent evidence necessary to establish the existence of a conspiracy and defendants' involvement in the conspiracy.
[2,3] However, defendants contend that McKim's testimony was so suspect as to be incompetent because he was an accomplice, offering uncorroborated testimony of an offense, and because he was granted immunity from prosecution. Although these factors may affect his credibility and the weight given to his testimony, they do not render that testimony incompetent. People v. Martinez, 187 Colo. 413, 531 P.2d 964 (1975). A jury may convict upon the uncorroborated testimony of an accomplice if the jurors are instructed to view the testimony with great caution. People v. Martinez, supra; Davis v. People, 176 Colo. 378, 490 P.2d 948 (1971). The jury in this case was correctly instructed on the matter, and it found that the testimony was sufficiently credible to convict the defendants.
Defendants further allege that the hearsay statements of Alonzi and the other conspirators should have been excluded because they were made prior to the time the defendants were alleged to have joined the conspiracy. McKim testified that he initially contacted the defendants to solicit their participation in the conspiracy on September 18, 1975, but both Shepherd and McKim testified to statements made by the other conspirators between September 15 and 17.
[4] The acts and declarations of co-conspirators, even those occurring prior to a defendant's involvement, may be admitted against that defendant. "Every person entering into a conspiracy or common design already formed, is deemed in law a party to all acts done by any of the other parties, before or afterwards, in furtherance of the common design." Smaldone v. People, 103 Colo. 498, 88 P.2d 103 (1938). See also Moore v. People, 31 Colo. 336, 73 P. 30 (1903). Furthermore, events occurring prior to the crime charged, "when linked to the chain of events which supports that crime," are admissible. People v. Anderson, 184 Colo. 32, 518 P.2d 828 (1974). By the very nature of the conspiracy which defendants were allegedly asked to join, they must have known that the automobiles were being procured for transmission to other persons. Thus, when they joined the conspiracy, their co-conspirators' statements, which were near in time to the involvement of the defendants and which were directly related to the same criminal acts with which defendants are charged, became admissible against defendants.
[5] Defendants also contend that the court should have granted their motion for judgment of acquittal because the People failed to establish venue in Denver County. We disagree. An offender may be tried for theft in any county in which he has exercised control of the property. Section 18-1-202(4), C.R.S. 1973; People v. Donahue, 41 Colo. App. 70, 578 P.2d 671 (1978). The immediate transportation of stolen property into Denver and its attempted delivery there to co-conspirators was sufficient to establish venue in that jurisdiction.
Defendants next assert error in the trial court's denial of their motion to sever. The trial court's decision may not be disturbed absent a showing of abuse of discretion. Eder v. People, 179 Colo. 122, 498 P.2d 945 (1972). In People v. Maestas, 183 Colo. 378, 517 P.2d 461 (1973), the court listed the following tests for determining if a severance is necessary:
"(1) Whether the number of defendants or the complexity of the evidence is such that the jury will probably confuse the evidence and law applicable to each defendant;
(2) whether evidence inadmissible against one defendant will be considered against the other defendants despite admonitory instructions;
(3) whether there are antagonistic defenses."
We have examined the record in the instant case in light of these factors and agree with the trial court that severance was unnecessary.
[6] As a further assertion of error, defendants contend that the court should have compelled the People to dismiss one count of the indictment prior to trial because the alleged victim of the offense would be unable to testify. However the court had no power to dismiss the indictment without the consent of the prosecution. People v. Montano, 195 Colo. 420, 578 P.2d 1053 (1978); People v. Bennett, 164 Colo. 163, 433 P.2d 339 (1967).
Finally defendant Severn asserts that the court should have dismissed the charges against him because of a plea bargain arrangement. A determination of whether an agreement existed and, if so, whether Severn had complied with its terms were questions of fact for the trial court. Here the trial court found that there had been no plea bargain agreement; but that even if there had been an agreement, that the defendant Severn had not complied with this purported agreement and that the alleged agreement was not effective. Since its determination is supported by the evidence, it is binding on this court on review. Linley v. Hanson, 173 Colo. 239, 477 P.2d 453 (1970).
The judgments are affirmed.
CHIEF JUDGE SILVERSTEIN and JUDGE ENOCH concur.